f/k/a . . . the archives

December 10, 2008

the hourly-billing procrastinator . . . and other contrary thoughts

Filed under: lawyer news or ethics,q.s. quickies — David Giacalone @ 1:02 pm

. . a quartet of contrarian quickies from Prof. Yabut . .

naughty child–
instead of his chores
a snow Buddha

….. by Kobayashi Issa -
translated by David G. Lanoue

.. In Praise of the Hourly-Billing Procrastinator: A quick stop at Idealawg yesterday somehow led me to yet another piece that wants to cure procrastinators of their supposedly dangerous and faulty ways.  In the Scientific American article “Procrastinating Again? How to Kick the Habit” (November 26, 2008), Trisha Gura describes a 2007 study by University of Calgary economist Piers Steel, and tells us that:

  • “a worrisome 15 to 20 percent of adults, the ‘mañana procrastinators,’ routinely put off activities that would be better accomplished ASAP.”
  • Procrastinators do not merely prioritize by putting off less-urgent matters ’til later; according to Piers, they voluntarily delay an intended course of action despite expecting to be worse off for the delay.
  • Procrastination carries a financial penalty, endangers health, harms relationships and ends careers.

Gura insists that “Succumbing to [procrastination] can be costly. Experts estimate that 40 percent of people have experienced a financial loss because of procrastination, in some cases severe.”  She also starts her article with this sentence:

“Raymond, a high-powered attorney, habitually put off returning important business calls and penning legal briefs, behaviors that seriously threatened his career.”

I want to disagree on behalf of clients of hourly-billing lawyers.  If a firm bills by the hour, the lawyer’s waiting until the last moment can often result in significantly smaller fees. As I said in a comment last August:

Don’t forget, however, that procrastination is the greatest labor-saving device ever. Lawyers who do things right away, for example, later find out that something has made the task unnecessary (the case settles, the opponent stops the annoying behavior, the judge cancels a hearing).

Waiting until the last moment also focuses the mind and increases the likelihood that tasks will be prioritized and efficiently performed. Some of the very best lawyers I know are chronic, ardent procrastinators and their work-product is excellent.

Of course, older lawyers are not as capable of doing all-nighters as we were in our early days in the profession.  That means that “the last minute” comes a little sooner.

Naturally, if paying a fixed fee (especially upfront), a client might want to do some pointed and persistent nudging to keep a procrastinating lawyer on task.

..Twitter/Fritter the Day Away:   While we had our own personal birthday yesterday (Dec. 9, 2008), our weblogging friend Carolyn Elefant was celebrating the 6th birthday of her much-honored weblog, My Shingle, which focuses (with cheerleader-like energy and loyalty) on the needs and achievements of solos practitioners and lawyers in small firms. Congratulations, Carolyn, and thanks for all your blawgy inspiration and inter-action all these years.

To celebrate, Carolyn is sponsoring two contests.  The first has a computer for first prize, and asks SmallLaw-yers to write a weblog post or essay on “Why I Matter” or “How Technology Helps Me Serve Clients or Make A Difference.”  That seems like an excellent idea. However, the second “light-hearted” contest has my tummy all-atwitter with agita.

You see, Carolyn wants participating solo and small firm lawyers — in order to capture “data on the minutia of our experience” — to:

“pick a day between now and December 20 to Twitter the day away.  Try to pick a day that’s typical for you as a solo or small firm lawyer, that shows how you balance your life, your cases and your clients.”

I’m sorry, and it should come as no surprise, but this seems like a terrible idea from the perspective of the client, employer or partner of such lawyers.  Constant interruption of your work-flow and flow of thought in order to tweak about every detail of your day for prosperity can only mean less efficient lawyering (not to mention parenting, and even puttering).

Virtually every solo practitioner I know (and I spent my last decade in practice in a tiny firm, or being a solo, or advising them), fits into either of two categories: 1) the ones who are woefully under-employed (and often somnolent); and 2) the ones who are chronically over-employed (and often frantic).  I can’t see how constant Twittering can possibly help either group of lawyers serve their clients (or families) well.  If I got a bill that includes work done on my lawyer’s My Shingle Twitter Day, I’d ask a lot of questions about the hours that were supposedly worked.

.. Hey, did I promise four topics at the start of this post?  Well, this old procrastinator hasn’t had lunch (nor breakfast) yet, so I’m gonna finish later; maybe much later.

breakfast rice
stuck in his whiskers…
lover cat in a rush

… by by Kobayashi Issa -
translated by David G. Lanoue

If you really need another diversion right now, I suggest viewing this great little video (lesss than two minutes long), recorded on December 6, 2008, by Curtis Dunlap, of Roberta Beary reciting a haibun (a short prose piece with a linked haiku). We dare writers who are penning prose-less pieces purporting to be haibun to try to recite them (and keep an audience).

Evening Session:  We’re back, but can we talk?  I can’t for the (long) life of me remember what the 3rd and 4th blurbs were going to be about.  But, a promise is a promise, so here are two substitutes, the first a minor quibble, the second more weighty. (And, please no teasing about my oft-evident Boomer Memory Syndrome.)

Short-Attention-Span Journalism:  Your editor has been away from antitrust prosecution for a couple decades.  But, things could not have changed this much. In The American Lawyer this morning (see “In Once-Every-Fifty-Years Case, Whole Foods Sues FTC“, Dec. 10, 2008), reporter Zach Lowe tells us (emphasis added):

“The $565 million merger struck between Whole Foods Market and Wild Oats Marketplace in mid-2007 is becoming one of those legal battles that’s so protracted it’s hard to keep up with.”

A year and a half is a “protracted” lawsuit at the FTC?  Our memories and memory banks are over-taxed by a case that made it to an appellate court and back to the Commission for further activity?  Maybe Zach needs a break from the antitrust beat.  Spelling Bees and pie-baking contests might better fit his attention span.

on the face
that last night called me names
morning sunbeam

sunrise
I forget my side
of the argument

George Swede from Almost Unseen

.. In Praise of Productive and Playful Teasing: On Sunday, Dacher Keltner had a long piece in the New York Times that struck a resonant chord with me — “In Defense of Teasing” (Dec. 7, 2008). The UC-Berkeley psychology professor worries about a phenomenon that has long concerned the f/k/a Gang: A generational Teasing Gap in our society, due in large part to a “zero tolerance” toward teasing now found in American schools these days, and the creation of “tease-free zones” in many American offices.  Dr. Keltner notes:

“The reason teasing is viewed as inherently damaging is that it is too often confused with bullying. But bullying is something different; it’s aggression, pure and simple. Bullies steal, punch, kick, harass and humiliate. Sexual harassers grope, leer and make crude, often threatening passes. They’re pretty ineffectual flirts. By contrast, teasing is a mode of play, no doubt with a sharp edge, in which we provoke to negotiate life’s ambiguities and conflicts. And it is essential to making us fully human.”

He rightly asserts that: “In seeking to protect our children from bullying and aggression, we risk depriving them of a most remarkable form of social exchange.”  That’s because:

“In teasing, we learn to use our voices, bodies and faces, and to read those of others — the raw materials of emotional intelligence and the moral imagination. We learn the wisdom of laughing at ourselves, and not taking the self too seriously. We learn boundaries between danger and safety, right and wrong, friend and foe, male and female, what is serious and what is not. We transform the many conflicts of social living into entertaining dramas. No kidding.”

The lengthy article is worth reading in full.  You’ll re-discover the benefits of Romantic Teasing — “a battle plan for what Shakespeare called ‘the merry war’.”  And find guidance to help distinguish productive teasing from the scarring, humiliating variety, and hostile teasing from the playful kind.  Don’t forget:

“[S]ocial context means a lot. Where teasing provides an arena to safely explore conflict, it can join people in a common cause. Especially when they’re allowed to tease back.”

April rain
my grandson practices
his infield chatter

.. by Ed Markowski – The Old BallGame (April 2006); “American Sports . . . American Haiku” (June 2008)

their laughter
is not about me
but would sound
just like that
if it was

…… by John StevensonQuiet Enough (2004)

mocking the farmer
plowing, the strutting
crow

even the scarecrow
turns his back to it…
my home

… by Kobayashi Issa – translated by David G. Lanoue

2 Comments

  1. Hi David,
    You know, I never even considered the possibility that lawyers would bill for time spent twittering. And I assumed that in doing it, they’d protect confidentiality. I guess I was caught up in the trends that I didn’t see it through. But I am desperate for ways to convey to other lawyers the experience of being a solo/small firm lawyer – both the good and the bad.
    Anyway thanks for your wishes.
    Carolyn

    Comment by Carolyn Elefant — December 10, 2008 @ 5:23 pm

  2. Hello, Carolyn. It’s always nice to lure you here and chat. My problem with all-day-Twittering is mostly the feeling that the interruptions impede thoughtful and efficient performance. Your contest seems to be asking lawyers to do even more of the kind of time-wasting, non-substantive “what I’m doing now” tweaks that have made so many professionals turn off to Twitter.

    Multi-taskers are always kidding themselves about their effectiveness. Each distraction means a mind that has to switch on and off track when working. I wasn’t worrying about confidences being compromised, but — now that you mentioning the billing issue — I do wonder how many of those interruptions (writing and reading and responding) will be deducted from the minutes being charged a client, and how much of a distraction discount clients should be getting from the minutes that are considered to be on task.

    Comment by David Giacalone — December 10, 2008 @ 5:48 pm

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