by Stuart B. Wolfe

This month’s Dear Counsel column offers responses from a seasoned attorney to questions from newer associates about billing hours and preparing for a law firm review.

Q: As a new associate, there is pressure to bill a lot of hours. Still, I worry that it takes me some time to get up to speed with new legal issues. When is it appropriate to not bill time spent looking up procedural questions or other legal issues?

A: As the classic axiom attributed to Abraham Lincoln posits: “A lawyer’s time and advice are his stock in trade.” The concept of “billable hours” seems out of fashion these days, but even where a firm charges its clients on a contingent, fixed, or other alternative basis, there is no getting around that the most significant component to any fee formula is the time and effort an attorney needs to invest in a matter. Thus, hours are a significant metric in any law practice’s business model, including law firms.

Reaching a billable hour requirement is typically most challenging for new associates. At this point in one’s career everything is new, and billing for becoming familiar with legal basics is rarely appropriate.

One technique to conquer this challenge is to think long-term about your career and set realistic expectations for yourself. Your journey is a marathon, not a sprint.

In the first few years of your practice, condition yourself to expect long weeks. You are entering a profession, not merely a job. Expecting a 1:1 ratio of hours worked to hours billed is entirely unreasonable when there is so much to learn. Putting in long hours and, dare I say, weekends in your first few years of practice will give you the opportunity to hone your craft, and eventually work much more efficiently.

In my first few years of practice, I spent many evenings and weekends reading and re-reading the basics from what real estate attorneys often call “The Other Bible”: Miller & Starr’s California Real Estate. This was not for the purpose of advancing any pending matter I was working on, although sometimes it did. Rather, it was to nail down the complicated basics of my new legal career: the anti-deficiency rules, the one action rule, protections for bona fide encumbrancers for value, and so on. While I certainly did not learn every rule and rule exception from these efforts, I became familiar enough to know exactly where to go to start my research on new matters for years and years to come.

A second technique to conquer the billable hour challenge early in your career is to be thoughtful and mindful as to how you add value to your client’s cases and matters.

Attorneys are expected to know—and not bill for—foundational black-letter law, including:

The basic elements of common causes of action and defenses;

Local rules of nearby courthouses; or

Basic rules of civil procedure.

But it is entirely appropriate to bill for things that require knowledge, thought, customized analysis, or substantive research. Such might include:

Applying the basic elements of a cause of action to a non-routine set of facts requiring case law research;

Appreciating, evaluating, and managing the impact of a recent appellate opinion creating a new variant to an established element of a defense; or

Resolving a nuanced inconsistency between procedural rules as stated in the California Rules of Court and Code of Civil Procedure or a Judicial Counsel form.

Such efforts add genuine value to your client.

Finally, make sure you enter your time into your firm’s billing system concurrently with performing each task. This may feel unnatural at first. It might also feel interruptive to your workflow. But countless studies show trying to restore one’s daily activities by memory can cause significant losses of billable time. One study shows attorneys who input time contemporaneously with working on matters bill 25-40% more than those who do not.

Employ these three techniques, and any burden you feel regarding billable hour requirements will greatly dissipate over time.

Q: My annual review is coming up. What type of information should I gather in preparation for meeting with my supervising attorney?

A: Preparing for an annual performance review begins twelve months in advance. Your preparation should commence on the first day after the prior year’s performance review.

The first thing to do in preparing for a review is to know your firm’s performance criteria. Different firms value different things. One litigation firm might value winning dispositive motions and final adjudications more than anything else. Another might value controlled case and task management equally to winning on the merits at any cost. Every firm is different. Each has different types of clients who have different needs.

Most firms have a published associate performance review form. Ask for a copy and consider the stated criteria. Also think about criteria not stated. Focus on the former.

Second, consider any personal goals agreed to at your last review and be prepared to propose new goals for the coming year. In developing your proposed goals, make sure they are aligned with your firm’s goals. Personal goals should be narrow, concrete, and measurable. The firm’s performance review form and the agreed-upon prior year’s personal goals should frame the issues for the performance review. Try not to let the discussion veer too far off track.

Third, realize that an annual review should almost never have any big surprises. Surprises reflect a lack of frequent and honest communication between you and your supervisors throughout the year. If there are surprises, almost nothing is more important than working on communication issues.

Be objective at the review. The review is not an adversarial forum. If you march in with a list of all your successes with no reference to areas still in progress or your challenges, you will not appear credible or honest. We all have areas needing improvement—own them! For some, it is difficult to be objective about oneself. Lawyers, especially litigators, are not without self-confidence. That’s good. But, if you are going to argue your personal successes or your firm’s failings, then you also need to balance that with a candid self-evaluation including self-criticism where appropriate.

Fourth, do not be defensive to constructive criticism at your review. No doubt, something is going to be said with which you do not entirely agree. If you have an immediate contradictory retort to every critical thing your supervisor says at the review, you will appear to be someone who is not capable of being contemplative or a good listener. If you don’t agree with something said at the review, instead of resisting the statement, ask questions designed to get an understanding as to why the reviewer sees something so differently than you do. Then, after the review, think about her answers and schedule a follow-up meeting to discuss.

Finally, remember that you and your law firm are in a relationship. Relationships of all types naturally have some episodic ups and downs and disagreements. But healthy long-term relationships always require aligned goals, mutual respect, and constant and honest communication. Annual reviews, when managed correctly, will nourish the relationship.

Stuart B. Wolfe is the co-managing partner of Wolfe & Wyman LLP, based in Irvine, CA. Stuart is the chair of the firm’s Financial Services & Real Estate practice group, and can be reached at sbwolfe@ww.law.

Dear Counsel is an occasional advice column where seasoned attorneys are asked to respond to questions from associates. Please email questions to gialisa@gmail.com for possible inclusion in a future column. By submitting a question, you release copyright claims and consent to editing the question for brevity or clarity. The OCL Editorial Advisory Committee has sole discretion over which questions to feature in a future issue. Responses are personal opinions, and are offered as such; no legal advice shall be construed from any such column.