Commodified Lawyering?

 Posted on September 14,2007 in Uncategorized

About three weeks ago, there was some buzz about biglaw partners' fees hitting $1,000 an hour.

"So what?" I thought, "Racehorse Haynes bills more than that." (See Kinky Friedman's profile of Haynes.) Even I have made over a grand an hour on lots of cases. Of course, I don't bill by the hour, so I'm motivated to work efficiently and provide maximum value to my clients in minimum time. And I've worked a lot more hours at $5 than at $1,000.

Here, though, is something that caught my attention (I've been reading law practice management blogs like LawBizBlog, and recommend them highly to those hanging out their shingles):

[O]nly a few lawyers are commanding that fee level, and then only in the "bet the company" kind of cases. Commoditized work cannot command that rate.

"Commoditized" means "commodified", which means, "to turn into or treat as a commodity." A commodity is a raw material that can be bought and sold. So what is this ‘commoditized work' of which Ed speaks, and who is doing it?

Lawyering requires creativity, and creativity can't be commoditized. There isn't another lawyer who can do what I do, and I can't do for one client what I do for another. Other lawyers might be able to get the same results I get, but we all do it differently.

If legal work were a commodity, it could be bought and sold. Client X could buy a lawyer's services and then resell them to Client Y. Or Lawyer A could sell services to a client, and then substitute Lawyer B's services for his own. It doesn't work that way. If someone hires me to defend a murder case (for example), she has a right to expect me to represent her. And if someone hires me, she can't then resell my services to someone else who needs me more (and is therefore willing to give her a profit).

Hourly billing (a blight on the practice of law) is an attempted commodification of legal services. One of the myriad problems with the scheme is that not only is one unit of a lawyer's time not interchangeable with a unit of someone else's time, but it's also not interchangeable with another unit of the same lawyer's time. For example, I might sit at my desk and think for hours about one client's problem, and then have the solution to another client's problem hit me when I'm out walking the dog. That instant of inspiration is more valuable to my client whose problem I solved than countless hours spent not finding a solution.

We might do lots of things that are commodifiable. But they aren't lawyering.