Wednesday Writs for 11/21

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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19 Responses

  1. Oscar Gordon says:

    L2: That’s a good list of really bad decisions. The list does align with Reason’s libertarian bend, so I am going to be interested in seeing what alternates the commentariat offers up.Report

  2. bookdragon says:

    L1: When reading this I couldn’t help but think of ‘Risky Business’. Cops busting that raw celebration of …entrepreneurship… would have made for an interesting twist on the movie.Report

  3. Aaron David says:

    L4 – An idea for a movie, a lawyer who works at the night court (defense or prosecution, either will work) who is secretly a vampire! But always has bad hair, because he can’t look in a mirror.Report

  4. Kolohe says:

    L3 – that was a good one, but my favorite was the one where Della Street downplayed how smart she actually was.Report

  5. PD Shaw says:

    L2: I would go with Rapanos v. U.S. (2006), which produced five opinions concerning the proper test for what is a “wetland.” Because it was not clear which opinion controlled, subsequent courts have applied different tests or applied more than one or followed the advice of the dissent in how to apply different tests in different contexts.

    I don’t care much about the underlying issue per se, other than I don’t think people should be convicted of crimes with such vague standards. But it should be listed as one of the worst decisions of the last 50 years because the SCOTUS failed in its basic job of bringing clarity to the law.Report

    • PD Shaw in reply to PD Shaw says:

      When Judge Propst was directed to retry wetland convictions, he decided to quit the case and voice his disgust in the accompanying opinion, which concluded:

      [W]e “are a government of laws and not of men.” Perhaps, it should be amended to add that “Sometimes we are a government of one (man) (woman) and not of law.” It is not the reversal of the convictions in and of itself which concerns me. It is the methodology by which the result has been reached. I realize that I may be subject to criticism for telling the truth. While this opinion may seem somewhat surly, it may be understandable when this court spent over two months preparing for and trying this case only to be told that it must be done again because of a questionable change in the law. At age 76, this is not my swan song, but it may be preparatory to one. Throughout their lives, swans emit hissing and shrill sounds. It may be a myth that they ultimately emit a melodious sound. My emissions are likely no worse than those of the Justices.


    • Michael Cain in reply to PD Shaw says:

      Environmental cases seem to make them lose their minds. On style points, I’d also put up Utility Air Regulatory Group v. EPA (2014). It introduces the use of the word “anyway” as an adjective in the phrase “anyway power plants.” Three different written opinions on what the word means when used that way.Report

  6. Saul Degraw says:

    There are scandals in BigLaw every now and then about lawyers who over bill. The last one I heard was a
    partner who claimed 4000 billable hours a year or so. It ended up calculating to 14-16 hours a day, 7 days a week.Report

    • Jaybird in reply to Saul Degraw says:

      I always assumed a “billable hour” was a percentage of an hour. If I get into work at 7 and I get to work on your case for six minutes, that’s a billable hour. Then I can work on someone else’s case. Then someone else’s. Then someone else’s. Then someone else’s. Then someone else’s. Then someone else’s. Then someone else’s. Then someone else’s. Then someone else’s.

      Now it’s 8AM.

      And I have 10 billable hours.Report

      • CJColucci in reply to Jaybird says:

        I haven’t had to bill my time for many years, but I tried that very same experiment once, just for the hell of it. But the right way to do the math, and the correct way to bill, is to use six minutes as a minimum, regardless of the time taken, and the right way to scam is to make a two-minute call for Client A, bill six minutes, spend three minutes e-filing something for Client B, spend another two minutes doing something minor for Client C, bill six minutes, then spend two minutes on another call for Client A, bill six minutes, spend another three minutes on something for Client B, bill six minutes, and so on. So far, you have done four minutes of work for Client A and billed twelve, although you could have done both calls back-to-back and gotten both in for the six-minute minimum.
        You can easily bill two to three times the actual working hours by breaking up the tasks, though that is not only bad for the client, but inefficient for the lawyer.Report

      • Saul Degraw in reply to Jaybird says:

        Billable time is broken up into increments. Firms that do billable hours do 6 minute or 15 minute incriments. In reality this means that almost any task done is rounded up to 6 minutes or 15 minutes depending on the firm. So the email that took one minute to read and one minute to respond to gets build at six-minutes.

        Your idea will get you quickly thrown out by the bar.Report

        • PD Shaw in reply to Saul Degraw says:

          Here, we have a former governor, who was a success in serving four terms without going to jail, who bills $800 an hour and doesn’t do fractions. He tells new clients at the outset that if you call him you better be prepared to talk for 59 minutes to get you moneys worth. He’s not practicing any conventional type of law; the one matter I know of, he was charged with delivering the check on behalf of a business to the county board. I think he probably would be skirting an issue with the disciplinary board if it came before them, but he has a pretty select clientele that is unlikely to complain.Report

      • Saul Degraw in reply to Jaybird says:

        That being said, there are times when it is totally possible to bill 12-16 hours a day especially if working on a massive task with a hard and soon deadline or in trial.

        But billing 15-16 hours a day for 365 days a year* is not a humanly possible task. Though alleged high performers always love to talk about how little sleep they need. They are wrong.**

        *This doesn’t factor in things like needing to eat, shower, piss and shit, commute to and form work, etc. Even if this guy delegated all his home life to other people, it is still impossible. Though when I was in Legal Ethics class, we did have a strong debate about whether you could bill a client if you think about a winning strategy for the case and happen to be taking your dog for a walk at the time.

        **My cases all are on contingency fees. I find that the Billable Hour will kill your soul. It is relatively recent, dating back to the 1950s. Before then, lawyers would just charge a flat fee for services rendered. Lawyers adopted the billable hour because they thought they were losing out on money compared to other professionals like consultants and accountants. One of my professors in undergrad had a lawyer father and the professor said the idea of the billable hour horrified his old-school father.Report

        • Em Carpenter in reply to Saul Degraw says:

          The attorney I worked for in private general practice did a lot of contingency. For other things he did flat fees.
          The only time we did hourly was defending a civil suit or when we had quoted an hourly fee in hopes of scaring a potential client off because we didn’t really want the case.
          I only remember actually billing hourly once.Report

          • Michael Cain in reply to Em Carpenter says:

            From time to time during my technical career I had to do timesheet reporting in 15-minute increments to account for my time. Because all of the “clients” were other organizations inside the giant company(ies), padding was strongly discouraged. The one-page monthly status report everyone had to write was the most common way that padding was discovered. If you’d charged 80 hours to a project, management was looking for 80 hours worth of accomplishment.

            There were codes for overhead and education, along with the project-specific stuff. When I was promoted from Member of Technical Staff to Distinguished MTS — for a couple of years I was the only one — I probably took excessive pleasure from the fact that I got to charge all of my time to overhead.Report

          • Brent F in reply to Em Carpenter says:

            In criminal defense work I do a flat rate for private clients but hourly in 6 minute increments for Legal Aid work. I find keeping track of time to be a bit annoying but it feels worthwhile as Legal Aid is guaranteed to be good for the money if its approved and properly documented while collecting from private clients is a pain.

            The billing process in general makes me envy Crown counsel who don’t have to worry about that sort of thing.Report

        • CJColucci in reply to Saul Degraw says:

          I have in my library a copy of an ABA publication on law firm management published in 1962. I wish I had it at hand to quote directly, but the gist of the section on hourly billing was that a busy lawyer could reasonably expect to bill about 1200 hours annually, and should set hourly rates accordingly. Hard to believe it was ever like that.
          So how do you come out on the dog-walking question?Report

    • Em Carpenter in reply to Saul Degraw says:

      The only time in my career I’ve had to track billable hours was when I did court appointed defense, and I know I left plenty of money on the table. I was terrible about writing down every phone call or email.
      Several lawyers in my state have lost their licenses and/or been charged criminally for false billing. I guess it’s tempting, when court appointments are your bread and butter and only paid st $45 an hour? I was very conscious of it.Report