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Metrics create benchmarks for 'granular' evaluations of lawyer performance

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Indiana Lawyer Focus

Metrics measuring attorney and law firm performance have exploded in recent years, and trend watchers say the implications for the industry are only beginning to be felt.

“Corporate legal departments want to make sure they’re getting a fair value, and from a law firm perspective, when they’re being asked to bid on work, they’re going to ask, ‘What are my peers billing?’” said David Moran, senior director of data management and analytics for White Plains, New York-based TyMetrix.

The company since 2010 has published the Real Rate Report, which distills data based on American Bar Association billing codes, by market and by whether billed work was done by associates, partners or paralegals.

benchmarks-facts.jpgTyMetrix’s benchmarks on such measures are culled from more than 50 billion aggregated data entries on electronic invoices submitted through its affiliated billing software. Firms agree to allow TyMetrix to anonymously use the data.

Moran said the data would allow someone working on a real estate matter or an Employee Retirement Income Security Act case, for example, to track benchmarks for phases within the typical life cycle of a case from discovery to settlement or resolution. In short, the data provide a guide for how long certain tasks should take and how much they should be expected to cost in various markets.

Getting to that “granular level,” Moran said, was revolutionary less than five years ago, but it’s become a reality of the legal marketplace. Insurers and corporate legal departments, he said, “are asking more for early case assessments – what is the expected cost and duration based upon the given facts?”

“We always understand not everything can be boiled down to one data element,” he said. Nevertheless, “with a large amount of data, you can see a pattern.”

Veteran defense and plaintiffs attorneys have mixed feelings about the trend but acknowledge it’s here to stay.

“The majority of lawyers still know nothing about this,” said Lewis Wagner LLP partner John Trimble, who has given presentations on behalf of DRI – the Voice of the Defense Bar on how metrics are changing the profession.

Metrics as a buzzword in the legal community seems to have been met largely with shrugs or groans, but it’s “a word I’ve come to hate,” said Kightlinger & Gray LLP partner Richard Young.

“If they had a question, I wish they’d just pick up the phone and call,” Young said of clients’ billing issues. He questions the value of benchmarks for matters that have unique sets of facts and participants.

“It’s not a one-size-fits-all world,” he said. “I don’t know if my client’s going to be wonderful to work with or if it’s going to be like pulling teeth to get information.

“You don’t know everything when you take a case in,” Young said.

But data is the driving force of changes that Trimble warns will only intensify. He said lawyers and firms should know how they stack up in comparison to their peers on measures that they’ll increasingly be rated on. Wise firms will see their

performance on metrics measures as a marketing opportunity, he said.

“Businesses are becoming better con-sumers of legal services, and as they’re becoming better consumers, they’re becoming more selective” about who they retain, Trimble said.

“What’s happened more recently in the business world and the insurance world is they’re using analytical software to harvest information on a firm-by-firm basis,” Trimble said. “The key metrics for law firms and individual lawyers are how long was the case opened from the date of referral to the time it was closed; and second, how long did it take the lawyer or firm to move from opening the file to a decision point” on whether a case should settle or proceed to trial.

Trimble said he’s heard of companies retaining a firm but singling out individual attorneys the companies didn’t want working on its matters based on the company’s internal data analysis.

Thomas Zurek, senior vice president and general counsel for American United Life Insurance Co. in Indianapolis, said many firms are modeling their practices on metrics and he’s explored doing the same, but decided against it.

“I find that it is not all that helpful in our business,” Zurek said. “I have a small cadre of firms around the United States that I use. I’m very familiar with their firms, and in addition to that, I practiced law for 26 years and I have my own sense of the value of things.”

Zurek said value can only be measured in beneficial results. Metrics based on a collection of benchmarks “doesn’t fit with the calculus I have for determining if proper value has been obtained,” he said.

“I could be paying someone the equivalent of $200 an hour, and if I should have been paying $500 an hour to get the proper result, the $500 an hour is cheaper at the end of the day,” Zurek said.

Roy Tabor, founding partner at the Tabor Law Firm LLP in Indianapolis, said from a plaintiff attorney’s perspective, metrics may have some limited value.

focus-billing.jpg“It’s fine if those are benchmarks, but when they become the standard or the rule, that becomes a problem,” he said. Data “is only as good as the input,” he said, and programs can’t make room for variances, such as the deposition scheduled for an hour that drags on for several more when unexpected information comes to light.

Tabor said statistical analysis of legal matters is always going to require exceptions to allow for cases that are outliers and by their nature will take longer to resolve. “I sort of lament the loss of the notion that the practice of law has a bit of art as well as science to it,” he said.

Young has no doubt that metrics will continue to play a larger role in business and insurance litigation. But he said quality firms are already doing most of the things the metrics encourage.

“Our philosophy has always been the earlier you can evaluate a case and tell a client or an insurance carrier where they ought to go with it … the faster you can do that, the happier your client is going to be and the more efficient the handling of the case is going to be,” he said.

Young doesn’t criticize clients who review bills, but he said too much reliance on metrics could have the unintended consequence of adding time reviewing invoices. Most of the time, he said, billing issues are resolved with an explanation of why a matter wasn’t routine.

“I’ve never had them call up and say I didn’t spend enough time on something,” Young said.•

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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