Dear PhilaLawyer: Is Practicing Law a Scam?

[Ed. Note:  The following is the first reply in Bitter Lawyer’s offer to Ask the Philadelphia Lawyer Anything.  We received a ton of “interesting” entries seeking advice from the all-knowing lawyer/writer, but he is only answering three.  The lucky person who submitted the below question just won a copy of The Philadelphia Lawyer’s best-selling book, Happy Hour Is for Amateurs: Work Sucks. Life Doesn’t Have To. Check back to read his responses to the two other questions he selects to answer in his own famous style.]

Q: 3L here, and I’m a devoted reader of PhilaLawyer.  My question is this: You are on record almost everywhere as stating that you generally regard the practice of law as a “scam” in a variety of ways (billable hours scam, license leveraging scam, partner pyramid scheme, etc.).  Your opinions almost always reflect back on the “big law” perspective.  Do you think these opinions ring true outside of big law?  Does your experience show that you would find equal ridiculousness in local general practice firms, boutique firms, PI firms, government offices, criminal defense firms, etc.?  Does the cynicism cover the whole legal world, or just the circus of big law?

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A: Damnit, Bitterlawyer… I told you we needed to put a “no compound question” rule into it.  But no.  Nobody ever listens to me.  He’s drunk again.  Delete his rants about contest rules.  (But keep the porn links he accidentally sent. Except for the ‘Amputee’ and ‘Anorexic Centerfolds’ stuff… The ‘hottest ribcage’ shots are truly nauseating).

Yeah, I know what you think of me.

And now, what have we?  A mailbox full of compound questions.  Fuck it, BL… It’s your bandwidth.  Here we go…

First, thanks.  For reading and raising an excellent question.

No, my opinions are not directed exclusively at BigLaw.  I think the perception that they are comes from the fact that BigLaw appears to be the only form of law in existence online.  This isn’t shocking, of course.  To borrow a line from a friend, “everyone on the Internet is six-foot-six, has a 12-inch penis, threw 95-mph fastballs in high school and descends directly from the Bourbon, Habsburg or Rothschild dynasties.  Ninety percent of people commenting on any legal website pretend they’re at the best firms in the country.  In reality, we’re looking at as many living-in-mom’s-basement Ignatius Reilly or David Berkowitz types as we are actual, serious lawyers.  But, as long as the majority of commenters posture themselves as “playas” and the sites focus on BigLaw gossip, readers will assume every article’s discussing BigLaw.

You read the book, so you’re aware of my experience in various sized firms.  Yes, the smaller the firm, the greater emphasis there is on producing value.  But the “ridiculousness” exists at every level.  Though I can’t speak for the deal side, in litigation, a big part of the problem—as big as the firms’ convoluted business models—is our archaic court systems.

On the criminal side, with lives at stake, we need a slow, methodical system.  On the civil side, however, the courts allow far too many litigants in who have no business filing cases.  I wrote a piece a while back called “Shysterproofing the Courts (Tips for the Tort Reform Crowd)”, which outlined how a push toward early mediation and holding expert witnesses liable for dubious opinions could cut down on the number of garbage tort cases clogging courts’ dockets.  I think those points can be applied to business litigation, along with one other important reform: Loser Pays.[1]

What business litigator hasn’t filed a specious claim on behalf of a developer or some mid-sized company purely for leverage or to gain some advantage in a business deal?  The current system allows well-heeled corporate clients to play chicken with each other in the system for years—with little, if any, risk.  This engenders among lawyers the belief that we’re mere pawns in a pointless game of chess where the only real measuring stick is how many tasks one can list on a time sheet every month.  People who toil on the same rote shit every day and see no value in their work have no reason to provide any.  The system’s ridiculous, the job’s ridiculous.  They’re ridiculous.  Who wouldn’t start phoning in his work and riding his cases for billables?

Many argue the best cure for the studied inefficiencies and intentional redundancies that make modern litigation the ridiculous process it’s become is to eliminate the billable hour.  That’d be nice, but it’s not going to happen fast enough.  The better fix is the simplest: Throttling the revenue stream.  Slap a strong “Loser Pays” rule on corporate litigants, and they’ll think twice about filing dubious cases against one another.[2] A smaller inventory of better cases—ones clients actually intend to take all the way to trial, rather than use to hold money or bleed a competitor—woud reacquaint lawyers with the actual practice of law and the provision of value instead of “legal widget” production.

So yes, I’m cynical about big and mid-sized firms.  They pushed the industry from value toward unit sales.  But they’re not alone in that anymore.  Not even close to it.  If I appear to have suggested big firms are more ridiculous than small ones, that’s inadvertent.

It’s true, larger firms created the environment in which the costly, unnecessary and ludicrous practices I’ve describe in my book and here at Bitter Lawyer have flourished.  But the ridiculousness has been industry-wide, at every level of firm, for a long, long time.

PS: BL… Since you have the email already, check out the ‘Sexiest Stump’ section.  The chick with the eye patch is so naughty.

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[1] Yeah, I know the response: “That’ll never happen, dude.  Never.” Perhaps.  But the first step in effecting any change is pushing an idea in the public sphere.  You never know who might be reading.

[2] We can’t apply a “Loser Pays” structure to personal injury claims because the average personal injury claimant with contingent-fee counsel rarely has pockets from which to pay.  (Most favor drawstring sweatpants.)

The Philadelphia Lawyer lives outside Philadelphia with his family, including his non-lawyer wife.

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Q: 3L here, and I’m a devoted reader of PhilaLawyer.  My question is this: You are on record almost everywhere as stating that you generally regard the practice of law as a “scam” in a variety of ways (billable hours scam, license leveraging scam, partner pyramid scheme, etc.).  Your opinions almost always reflect back on the “big law” perspective.  Do you think these opinions ring true outside of big law?  Does your experience show that you would find equal ridiculousness in local general practice firms, boutique firms, PI firms, government offices, criminal defense firms, etc.?  Does the cynicism cover the whole legal world, or just the circus of big law?

A: Damnit, Bitterlawyer… I told you we needed to put a “no compound question” rule into it.  But no.  Nobody ever listens to me.

Read more from PhilaLawyer.

12 Comments

  1. Friend

    March 22, 2010 at 4:30 am

    I looking forward to “BL” comments today

  2. BL1Y

    March 22, 2010 at 7:22 am

    A loser pays system could potentially worsen the over-billing problem.  If the other side has to pay, why not pad your bill even more?

  3. :)

    March 22, 2010 at 10:11 am

    @ BL1y—because you add a penalty clause.  For every dollar/hour/counter your bill exceeds industry norms without reason, your accounting is not only reduced by that amount, but you are fined an equal amount (three times?  six times?) to be used to offset the loser’s contribution.

  4. BL1Y

    March 22, 2010 at 12:58 pm

    Industry norm is to work slow and pad bills.  Do you really expect judges to figure out how many hours it should have taken an unskilled junior associate with no legal knowledge to research something?

  5. M Ann

    March 22, 2010 at 1:01 pm

    I’m only a secretary at BigL and I just remembered the movie “The Firm”.  Did Tom Cruise’s firm get in big trouble for overcharging?  Isn’t this against the law if it can be proven the bills were padded?

  6. BL1Y

    March 22, 2010 at 6:35 pm

    Ann: It’s extremely hard to prove that bills were padded.  If I print out 10 cases to read and take notes on, who can say if I spent 5 hours or 15 hours working on them?

  7. Anonymous

    March 22, 2010 at 6:40 pm

    Dull, man, dull.  Bring on the bimbos!

  8. Maxi Pad

    March 23, 2010 at 2:47 pm

    Who DOESN’T pad bills? Isn’t that the industry standard? Clients know it. Judges know it. Padding is the unspoken reality that gives clients a basis to demand cuts in bills.

  9. Joe

    March 26, 2010 at 1:33 am

    In a way, PI is already loser pays.  The Plaintiff fronts cash for the case and recoups none if he loses.  The defendant pays his legal costs, but only has to pay over that if he loses.  If Defendants were better about evaluating worthy cases, the system would move much smoother.

  10. Shartzberger

    April 2, 2010 at 6:54 pm

    There aren’t any billable hours in a double compounded litigation case for the post-industry public sharing firms, only transport documents where filing company shares seems tripe.

  11. Farts

    April 2, 2010 at 6:56 pm

    Farts

  12. Slacker

    April 27, 2010 at 6:05 pm

    Isn’t there already a loser-pays situation (or effectively one) in class action, consumer fraud, and other fee-shifting litigation?  Last I heard, fee-shifting cases are often the most contentious, because plaintiffs attorneys try to leverage a settlement by holding the threat of a fee petition over the defendant’s head.
    Oh, and this internet lawyer is definitely of the “living in mom’s crawl-space kind”– I’ve got no illusions.

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