November 5, 2010 6:23 PM

Long Hours, Bad Results

Posted by Ed Shanahan

By Steven Harper

Pity the United Kingdom, which I just visited. It devotes just seven days--the last seven in September--to "Work/Life Balance Week." Americans, on the other hand, get a whole "Work/Life Balance Month"--how many of us even realize this? Such commemorations suggest an obvious question: What should we celebrate the rest of the year? Work/life imbalance?

The concept of work/life balance is laudable, even if the phrase itself can be somewhat off target. For those who are chronically unhappy with their jobs, "balancing" unpleasant work with the rest of life is at best palliative, not curative. Dissatisfaction with a career usually infects everything else. Notwithstanding daunting economic realities, a better long-term plan for such sufferers is to find another way to make a living.

On the other hand, my friend Steven Lubet, a professor at Northwestern University Law School, correctly notes that no job is perfect: "That's why they call it work." But attorneys who generally enjoy their tasks still benefit from time spent on people and things other than clients and their problems. Enjoying life outside the office makes most of us better in every way and improves worker productivity. Unfortunately, that's an increasingly tough sell in most of the big-law world.

Being a lawyer has always been demanding, but when even satisfied attorneys feel pressure to work unreasonably long hours, bad things happen to them and to their families, clients, and firms, even to the profession. Slackers can take no comfort in my views. An honest 2,000 billed hours--the annual minimum that most big-law firms report to NALP--require ten-hour days and occasional weekends. That's more than firms required 25 years ago, but it's still not unreasonable.

Unfortunately, too many large firms made the 2,000 minimum culturally irrelevant long ago. No debtridden associate concerned about keeping a job wants to bring up the rear of a year-end billable hours list. Nor does the pressure end with advancement. Equity partners must continually justify
their economic existences, year-after-year.

During my 30 years at a large firm, my billable hours usually ranged from 2,000 to 2,200 yearly. Once or twice, they reached 2,500 and every incremental hour above 2,200 took a increasingly severe toll on my life. Beyond losing any semblance of a personal life, how well does anyone function during the fourteenth hour of a workday compared to hour eight? A fatigued mind is fuzzy, irrational, less efficient, and prone to error. Most clients paying for an attorney's 3,000th billed hour in a year are getting very little for their money. Yet some lawyers do that year after year--and some clients encourage such behavior.

The Department of Transportation reviewed scientific studies on the effects of exhaustion on the human mind and body before limiting over-the-road truckers to 70 hours in an eight-day period. After that, the drivers must rest for 34 consecutive hours. Ask any lawyer in a large firm about the last time he or she worked at that clip (or worse) and then went 34 straight hours without looking at a BlackBerry or talking
with clients and colleagues on a cellphone.

Who presents a greater societal danger--a tired, overworked driver exceeding an eight-day maximum of 70 hours, or an attorney maintaining a more strenuous pace? Big-hours legal billers might argue that trucker fatigue is different. When a sleep-deprived driver causes a catastrophe, innocent bystanders are at risk. If lawyer exhaustion produces suboptimal or even negative results, the client (or the attorney's malpractice carrier) pays the price; usually it's financial. That's reassuring. No one wants an attorney who has nothing to do. Likewise, every good lawyer sometimes confronts genuine emergencies that require burning the midnight oil. But a firm's perennial billable hours winners present potential
problems that, for some reason, don't concern most clients. I've never understood why.

 

Steven J. Harper is an adjunct professor at Northwestern University. He recently retired as a partner at Kirkland & Ellis, after 30 years in private practice. His blog about the legal profession, The Belly of the Beast, can be found at www.thebellyofthebeast.wordpress.com. A version of the column above was first published on The Belly of the Beast.

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