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A New Lawyer Productivity Measure – The Misery Index

Recently Northwestern Professor Stephen J. Harper proposed turning the standard lawyer productivity metric – average billable hours per attorney – on its head.  He has some terrific points in his recent article: “A New Metric: The Misery Index.”

Drawing upon analogies to DOT driving safety regulations that explicitly recognize the impact of fatigue, the Professor suggests that the measure for attorney output shouldn’t be based on total hours spent; rather, it should be based on useful work product created.

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More time spent on a project does not unequivocally equal increased productivity, especially when reasonable work loads have been surpassed. In fact, as everyone knows (but few will readily admit), the complete opposite is frequently true. Spinning your wheels is still spinning your wheels, inefficiency is still inefficiency, and your 2,400th billable hour is just not as likely to be as “good” as your 1000th – whether someone is willing to pay you for it or not.

Harper proposes two indices, one for associates (AMI) and one for partners (PMI), a calculation that factors in a weighted penalty for hours billed in excess of 2,000. Ultimately it is another creative way to highlight obvious weaknesses – both of the logical and business type – in using billable hours as a measure of anything except perhaps an internal metric of actual time spent.

In some sense it’s amazing that the billable hour has lasted as long as it has. The inertia of “precedent” – that powerful principal that gets drilled into everyone’s head since the first day of law school – is definitely a factor, as is the illusion of precision offered by counting and reporting hours.

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The biggest factor in the longevity of the billable hour – which is essentially client willingness to pay based on input rather than output – is just not going to last forever. The idea that “more billable hours” could even be thought of as a proxy for “more productivity” is going to seem absurd sooner rather than later.

One of my wise old law professors – a great practitioner who must’ve already been at least 120 years old back when I took his class – used to get a little twinkle in his eye and say: “You can deem a horse a cow, but don’t try to milk it.”

That pretty much sums it up.