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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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