toddgerstein
Todd Gerstein
CEO & Founder
Smart WebParts

Go back to your office and think. That’s what my first boss told me when I started at Milbank Tweed in 1978. I was the firm’s first Director of Finance, it was law firm management in the Stone Age and there was very little, if any, precedent to follow. So, thinking was important.

His simple directive stuck with me throughout my career. Go to your office and think. Be creative. Look at the problem from different angles. Bat the issue around. After all, isn’t this why we spend so many years in school, in professional development, in retreats and conferences? To develop our minds? To solve problems? In other words, to learn how to think.

Billing for Thinking

But, what about attorneys? Everyone says you go to law school to learn how to think. But in the course of our research at Smart WebParts, we have run scans on millions of time entries to study timekeeping behavior, and it is amazingly rare to see a time entry that says something like, “think about the client’s problem.” Instead, today it’s all about action verbs: Prepare. Analyze. Research. But never: Think.

There’s no phase task code for thinking, but why not? Why shouldn’t “thinking” be given its own space in the billing universe, which would allow for honest reporting of time spent thinking? Why have we gotten to a place where attorneys are afraid to report time thinking and clients might see “thinking” as a red flag?

To dig deeper and uncover the causes for this, I posted a question on a few LinkedIn professional groups asking: “Do you charge clients for thinking time?” and I got some interesting responses.

One attorney had this to say:

“Not all my time spent on behalf of clients is “doing.” Some of it is “just thinking” — while sitting at a computer keyboard, pacing the hallways, or simply staring off into space. I don’t charge for travel time, but a lot of my travel time is also “thinking time.” (If I’m asleep on a plane or in a hotel room, my meter is not running.) Daydreaming afterwards about brilliant arguments that I ought to have made doesn’t count. But when I’m making sustained efforts to plan, compose, and rehearse brilliant arguments in preparation for actually making them on a client’s behalf, and when I am confident that my client has gotten good value for the time I’ve invested in this sort of “just thinking,” I will indeed bill for it. You ought not want a lawyer who’s incapable of — or resistant to, or even just under-acquainted with — reflective thought and planning. While thinking on one’s feet in a crisis is indeed a necessary skill for courtroom lawyers, it’s by no means a sufficient one. No plan survives first contact with the enemy; and thus, as Gen. Dwight Eisenhower explained, “Plans are useless, but planning is invaluable.”

And here’s another’s take:

“I’m a little reluctant to charge a client thinking time unless I’m solving an extremely unique problem for them. If I’m “thinking” because it’s new ground, then I might charge some of that time. Most of the time I just chalk it up to professional growth, especially if the solution I come up with may prove useful for other projects in the future.”

In response to that comment came this one:

“I disagree. I call this analysis and I consider that thinking about the issues my client’s problem raises and how to resolve them, including reviewing the facts and how the existing caselaw and other precedents, including my own experience, might predict a particular outcome, to be an essential “value added” element of my representation. To me, drafting or negotiating without first analyzing the situation and planning strategies on how to handle the challenges, both foreseen and unforeseeable, in my client’s situation is like heading to a new place without a roadmap — I can’t get “there” (successful resolution of my client’s issue) unless I know my preferred and alternate routes.”

Conclusion

Whether admitted on a bill, attorneys do think when they’re on the clock. What an attorney wants to do with that time, bill-wise, is an individual choice. Some will want to be forthright and explain time spent thinking, while others would rather explain thinking time using alternate terms.

In any case, thinking, whatever it’s called, is time well spent. On that, clients and attorneys can agree. No one wants a thoughtless attorney. Now if only we could agree on how to bill for it.