Wednesday Writs for 11/21
[L1] Sometimes, you gotta fight for your right to party. And sometimes, you have to take that right all the way to the Supreme Court of the United States, as was the case in District of Columbia, et al v. Theodore Wesby, our case of the week, a decision handed down in March 2018. A decade earlier, police showed up on the scene of a wild house party, a display of debauchery the likes of which Clarence Thomas, writing for the Court, described thusly:
The party was still going strong when the officers arrived after 1 a.m., with music so loud that it could be heard from outside. Upon entering the house, multiple officers smelled marijuana. The party-goers left beer bottles and cups of liquor on the floor, and they left the floor so dirty that one of them refused to siton it. The living room had been converted into a make-shift strip club. Strippers in bras and thongs, with cash stuffed in their garter belts, were giving lap dances. Up-stairs, the officers found a group of men with a single, naked woman on a bare mattress—the only bed in the house—along with multiple open condom wrappers and a used condom.
The party-goers were arrested and charged with disorderly conduct, but all charges were ultimately dropped. The party guests sued for a fourth amendment violation, arguing that the officers’ entry was unlawful because nobody present had the authority to let them in the house. The lower court and appellate court agreed, but SCOTUS ultimately found for the District, finding that the police reasonably believed they were witnessing a crime, had probable cause to make the arrests, and thus violated no rights.
[L2] The facts of our case of the week are among the most risque to have appeared in high court jurisprudence, but the ruling is fairly unremarkable, unlike those found in this list of the 5 Worst SCOTUS decisions of the last fifty years. Are there others you think should be included? (h/t to Michael Siegel for the link).
[L3] While we’re making lists, what’s your favorite Perry Mason episode? Personally, I like the one where he goads the prosecution’s witness into a shocking confession, exonerating his client.
[L4] Lawyers are decreasingly being portrayed as heroes in film and TV, which is just as well, since we are villains everywhere else.
[L5] Heroic may be too strong a word, but some lawyers do some good, some times. It has become common to give away turkeys around the holidays. Altruism or marketing strategy? I doubt the recipients care.
[L6] Then there’s this lawyer in Texas, who made nearly half a million dollars representing indigent criminal defendants last year. Caution to new lawyers: results are atypical- (and possibly fraudulent, in my opinion). He claims to work 12-16 hours a day, 7 days a week on his court-appointed cases. For perspective, this is twice the billing of the second-highest appointed defense biller in the county,which is part of the Dallas-Ft. Worth metro area. Second place was a firm of three lawyers.
[L7] Continuing with the theme of lawyers behaving badly: this attorney took to Facebook to pronounce his own client “an idiot and a terrible criminal.” While this description is one many lawyers have thought of their clients, most of us don’t actually say it out loud.
[L8] It’s hard not to feel that way when you represent people like our dumb criminal of the week, who instigated a war between brick and bullet proof glass, in which he became the only casualty.
[L9] If you see a bull running wild for more than three days in Missouri, go ahead and castrate it. Don’t worry, it’s fine, according to our crazy law of the week.
[L10]: In honor of these lawyers offering brief cases full of cash in order to lure clients, I will leave you with this, probably my favorite lawyer related song of all time:
[youtube https://www.youtube.com/watch?v=kZx_TokIHdI&w=560&h=315]
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
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
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
L3 – that was a good one, but my favorite was the one where Della Street downplayed how smart she actually was.Report
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
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:
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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
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
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
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
Oh, it doesn’t strike me as efficient *AT ALL*. It seems a good way to do 2 hours of work over the course of 8 hours and end up with 80 billable.Report
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
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
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
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
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
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
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
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