Friday, October 7, 2016

Shorter briefs = fewer billable hours?!?

Image result for i would have written you a shorter letterIn Lawyers Can Write Shorter, But It'll Cost Them, Harvard Law Prof Noah Feldman   (a former Souter Clerk) discusses the coming FRAP rule to drop appellate briefs from 14K to 13K this December. (N.B. the 9th Cir. is opting out of this.) He argues that the reason lawyers don't like this 7% reduction in word count "isn't that appellate lawyers like to hear themselves talk," but rather that it's bad economically for appellate lawyers because shorter briefs mean less work product and thus less revenue. Um, really? This article contains a number of seemingly suspect assertions about the practice of appellate law. Here are some choice quotes:

Here’s the paradox of appellate law today: It’s highly prestigious, but not very good at generating revenue. Ordinary litigation can be a huge revenue source for a large firm that throws lots of bodies at a case and gets long hours of thorough work out of them. Discovery can take months or years, and often requires review of many thousands of documents. Trials can take months. Creating a record is backbreaking, time-consuming work.
In contrast, appeals generate chump change, because they’re so elegantly simple. The factual record is fixed. The brief length is limited. The only labor involved is brainwork: The appellate lawyers read the record, study the law and produce the brief. The oral argument takes half an hour, and typically involves just a single lawyer, not a whole litigation team working round-the-clock for months. 
Image result for i would have written you a shorter letter

Image result for seven percent solutionThose appellate advocates who don’t moonlight as regular litigators need to justify their paychecks by billing as much as they can. A 7 percent reduction in their per-case work product makes that harder.

The word-length reduction is good for the legal system. For the appellate advocates, there’s a simple answer: Don’t charge by the hour; charge by the challenge. Clients may not always know the difference between brilliant legal advocacy and a hack job. But they should. 

Speaking of fewer billable hours, don't forget that Monday is a court holiday (Columbus Day), so all private practitioners will undoubtedly be taking the day off, right?