“Fees Fi Fo Fum”: Lawyer Fee Arrangements, Part 2 – The Billable Hour

Welcome back to the Lawyers & Liquor discussion on fees!  So last time we talked about the historical difference between the American Rule and the English Rule, which is essentially the difference between you paying someone to kick you in the nuts and someone else paying to try to kick you in the nuts.  A brief summary of our last post is as follows:  In America, lawsuits require that you bear all of your own expenses, paying the lawyer out of your own pocket even if you win, with a rationale of “access to justice.”  However, the traditional rule on most Common-Law countries, and indeed in a lot of the world, is that the loser in a civil action will pay reasonable attorneys fees for the winning side, the idea being that it’s the losing side’s fault the matter was in court at all to begin with.

This isn’t a new thing.  America deviated, as we talked about, back in 1796 in a Supreme Court decision that found making the loser pay up may actually dissuade people from going to court and asserting meritorious claims and defenses because of the specter of the money-grubbing attorney in the background.  We also talked about how that decision is a remnant of a time when it was completely acceptable to pay your lawyer with a side of beef and a fresh coat of paint on his palatial farmhouse in the country.  America, it seems, never got the message that when a ham has less monetary value and doesn’t stretch as far, a refiguring of the way we award fees may be needed.

So what does this mean for you, the lawyer or layman in the good old U.S. of A who may want to make sure at some point they see a payment on a fucking bill or, in the case of the latter, may want to know what they’re getting into when they hire a lawyer?

It means we have a sort of complicated set of “ways to pay for shit” that clients can utilize.  Which we’re going to talk about today, starting with the Billable Hour.

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“Fees Fi Fo Fum”: The English Rule and The American Rule, Part 1

Good morning and welcome back to Monday here on Lawyers & Liquor, where I try to recoup all the goodwill I burned through in recovering from an injury and being a general roustabout in anything not case related by redirecting you all away from my flagrant ignoring of my responsibilities on this site and back towards the questions of law, fact, and fun that tend to pop up profanely here.  Isn’t that just one hell of a run-on sentence? Anyhow, I’m your hobbling host the Boozy Barrister, here to pour seething hot rage and recommendations into your eyeholes as we keep trucking on through the dark night of litigation finance.

You may remember that last week, before I disappeared into the netherworld of lazy lawyers in their off time, I spoke about the threats that are coming to bear on the Legal Services Corporation, the federal agency that provides grants to legal aid non-profits and assists them in letting the indigent have their day in court.  The whole reason we have to have organizations like this is because, frankly, if someone hires me to bring a lawsuit or defend one I expect to get fucking paid as a result. Now, some of you out there are saying “Boozy, I thought lawyers only get paid if you win!” To that I say: Do I sound like the type of guy who takes cases on contingency? I like eating my meals. The only gambling I ever do is at the pai gow table, surrounded  by hard-smoking and hard-drinking Chinese businessmen screaming things in Mandarin and Cantonese (neither or which I speak).  I’m not gambling in the office.

I mean, I would if I could, but it’s been hell on wheels trying to get the partners to recognize the need for a pai gow table in the conference room.

No, in most cases us American Attorneys get paid win, lose, or draw.  You may go home with empty pockets and a judgment against you, but I go home with my check or I don’t sally forth into the legal battlefield with you in the first fucking place. And that, for many people out there, is the problem.  But…what if I told you there was another way?  And there may be one, too, if we dig back through the past and examine the alternative method of paying for a lawsuit…which is what we’re doing this week.

But first, let me explain the two historical methods of paying for a lawsuit: The English Rule and the American Rule.

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“The No-Bill Profession” – Legal Aid and Pro Bono

You know what’s nice? Knowing that the practice of law is a profession that places as its benchmark the pursuit of justice and higher school of thought.  We all go into law school thinking that we’re going to change the world through our practice of the law, and some dolent professor with an Ivy League pedigree extols the virtues of the “Noble Savage” that the lawyer is supposed to be.  We are told, in every class, that the law exists to bring justice and that the role of an attorney is a counselor and advocate for the cause of the downtrodden client.  We are, in the words of the administrators and professors, the gatekeepers of justice, the first line of defense against tyranny, and the vindicators of the downtrodden.

And, of course, we then step out into the real world of practice and become made aware of the fact that all that esoteric bullshit and idealism doesn’t make the student loan payment of the rent.  Nobody’s ringing up their landlord and saying “Hey, I stopped a family of five from being evicted today!  They paid me in a big bag of pork rinds!  Will you accept pork rinds in lieu of rent now?”  If your landlord or utility company would ever stop laughing, what they’d choke out is “No, dipshit.”  Idealism doesn’t pay any of the bills.  “Good feels” doesn’t put food on the table.  Advocacy won’t buy avocado toast.

For that, you need money.  And to make money, you have to let go of the concept that you are anything more than a cutthroat mercenary of the legal world.  Because motherfuckers may need justice, but motherfuckers gotta pay to get it.  And yes, there are lawyers out there who provide representation to those people that need it without regard to their ability to pay, and they do some great goddamn work in doing so.  But, and here’s the thing:

They may not be there for much longer, and society has no viable safety net ready and raring to go for those folks.

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Everything Wrong with Legal Hiring: Searching for Dick Awesome, Esq.

It seems like every now and again Keith over at Associate’s Mind, the father of LawyerSmack, and I end up focusing on the same topics for a few days in a row. This time it all comes about out of an ad for an attorney and the ridiculous requirements and pay expectations that the firm wanted met in order to hire a lawyer to assist.  I’m not going to do a lot of talking to describe the ad, because you can watch the bullshit flow over on the LawyerSmack website about the anger and frustration of the attorneys that gather around the virtual water cooler (Keith has cleaned the joint up a bit from the days when it was more of a dive bar, and even insisted that sentient whiskey glasses identify themselves in the chat by their real names and everything).  But here’s the gist of the ad’s requirements:

  1. 5-7 years of experience;
  2. 20 cases tried to a verdict, unless you’re a former prosecutor, then at least 80 cases tried to a verdict;
  3. Answers to an attorney with 30 years of experience, and;
  4. Pay is $55,000 to $90,000.

While they’re at it, they’d like to find an attorney that owns his own rainbow-shitting unicorn, lives in a castle made of gingerbread, and can melt the faces of opposing counsel by singing eldritch verses in court. I mean, if we’re going to go all out on this shit, let’s go balls to the goddamn wall crazy with it.

Because the lawyer these guys are looking for?  It doesn’t fucking exist.

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Four Hard Truths Behind Going Solo

Hey and welcome to Wednesday on Lawyers & Liquor, where the coffee flows like brown, muddy, too strong wine and the mumblings of the week have hit their zenith.  It’s all downhill from here, folks, and speaking of downhill, remember a while back when I told you about the times you should be looking to bail the hell out of your law firm?  No? Well, you can go read that little gem here.  In fact, I’d sort of suggest that you do that before we get the ball rolling here, because today we’re going to talk about the second half of the crappy “Should I Stay or Should I Go?” equation, which is “Can you afford to get out the door and go it alone?”

Sure sure, there are plenty of legal jobs out there in the world, if you particularly enjoy taking a pay cut or secretly trying to apply to other firms without the word getting back to the bosses that sign your paycheck that you’re in the market for a change.  I mean, just ask any recent graduate how many awesome jobs are beating down their doors to hire them.  I mean you could…hold on, let me take a look at my LinkedIn “Jobs For You” section…be a paralegal.  Or…a paralegal.  Oh, wait, here’s one for an insurance salesman.  Well isn’t that all just fine and fucking dandy, huh?  There are plenty of jobs out there for a lawyer looking to move around, so long as they don’t want to be a fucking lawyer.

So…maybe you should go solo then? Maybe you should snag the pictures from the walls and run  into the night, calling each of your clients individually to scream “I’m free, motherfucker! Follow me!” You can hang a shingle somewhere, be a real rainmaker. Right?

Oh you poor fucking fool.  I’m gonna give you Four Hard Truths about going solo, and you can see if you’re a smart man.

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