Questions Never Answered in Law School


Years ago, one of my law school professors warned that the two hardest things that we would face as attorneys would be (i) how to tell a potential client that you could see no solution to his/her problem and (ii) how to bill for work performed.

I don’t offer any answers in this article. I will leave that to motivational speakers.

No Possible Remedy

Regarding the first, when listening to someone telling of a heartfelt tale of unfortunate circumstances, you are typically motivated to alternately think, “what can I do to help” (for a fee) or “what can I charge for a fee once I figure out exactly what I can do to justify the fee”. (There is a difference.)

After listening and asking questions to try to get a grasps of the facts, sometimes there is nothing you think of in the law that will provide any relief.  Perhaps therapy is needed but that’s not the service you are offering.  

Some people respond to your assertion of “There’s nothing I can do” by anger or insult.  “If you were a good lawyer, you would be able to think of something”. Most however are simply disappointed. They try to repeat “quasi facts” that really don’t help them.  “Are you sure?”

At best, the meetings end on a hollow note. No one is happy.  It is like entering a bar and never being served a drink. You leave none the worse, but also none the better.

How to Bill

Regarding the second (how to bill), there are undoubtedly happy souls that can simply keep track of the hours they spend, multiply the hours by their rate and the clients pay.  But my experience is that even Fortune 100 companies are aggressive and savvy clients and know the meaning of competitive rates and productive versus padded hours. They have their own staff attorneys that will be looking over your shoulder. 

Everyone is now an educated consumer and seeks to know at least a “ballpark” price.  In my practice, however, everything is highly nuanced and fact specific.  What may at first appear to be a clear path can be obstructed by unanticipated client requests or undisclosed facts.

You can perhaps be aggressive in your charges but every client is a potential referral for future work.  Chasing after unpaid fees always seems to be waste of productive time.  Also, as one of my own clients told me, “I like to have my customers think a pleasant thought when they hear my name.”

Also, there appear to be competitors (particularly advertising on the Internet) that offer absurdly low prices.  If you care at all about your work product and professionalism, you can never match those individuals.

The closest I can come to for an answer is that you need to be totally transparent.  Also keep records of time spent.  Make sure the client understands that the initial estimate is based upon an assumed level of effort.  If the work becomes more complex and demanding, promptly give the client the opportunity to scale back the project, stretch it out or drop it all together, i.e., cut their losses.  I try to convey to the client that they won’t get an ugly surprise (large unexpected bill) at the conclusion of the matter.  Also start with a retainer and communicate that additional funds may be needed as the situation demands.  

Complicating the matter, for at least me, is having a developed idea what seems to be a fair price for what is being asked.  But everything seems to take longer and the hours pile up.  How much time are you prepared to write off to get the bill into the neighborhood of what was estimated (or even for revised estimates)?  

The people skills that you posses to win over a client’s trust and faith also drag a duty of loyalty and sincere desire to meet the client expectations.  

Conclusion ?

Finally, “charging what the market will bear” is a poor business model.  

Absolutely finally:  I am a patent attorney and a hint of the sometimes tortuous path of achieving patent protection is outlined in Patent Application Flowchart.

Copyright David McEwing, 2019