Today’s post is dedicated to all the employees of the world who have jobs with rules that don’t make sense. Let me give you an example. I was at Disney World a few years ago. Yes, I am an adult; no, I don’t have kids; and yes, Disney World is far better than Disneyland. My wife had only been to Disneyland, and I told her, Disney World is very different. She didn’t believe me until we got there. Oh, by the way, we did feel sorry for all those young couples with babies and small children spending the majority of their day changing diapers, dealing with temper tantrums, or waiting three hours in line for a chance to take a photograph with Mickey. We, on the other hand, ran around the park like maniacs and managed to go on ride after ride after ride. That’s why it makes sense to go before having kids.
Anyway, I digress. At Disney World, there are official photographers everywhere. If you are a newbie, they give you a photocard, which you can then present to any Disney photographer within the kingdom. After they take your photo, the card stores the data. It basically works like a flash drive. If you want to preview or purchase any of the photos, you can take your photocard to a kiosk (conveniently located near the exits). So that’s what we did. This is where things got interesting.
At the kiosk, there were three special machines that allow you to insert your photocard and view all the photos on a screen. You can then select the ones you want and buy them. Here was the problem: three machines, but only two Disney employees. Worse, only one of the two was actually involved in “running” the machine. In other words, only one of the three machines was actually being used.
There were only two families ahead of us in line, but the family at the one operational machine took forever. They must have had hundreds of photos taken, and were debating the pros and cons of each individual photo. I felt like Congress was in session.
A huge line was forming behind us. I calculated that, at the current rate, the turnover rate would be 15 to 30 minutes per family. Ridiculous. I sprung into action.
Me (addressing the employee #1, next to the operational machine): I was wondering if we could use the other machines.
Employee #1: I’m sorry, sir, but we can’t do that.
Me: Why not?
Employee #1: I can only operate one machine at a time.
Me (thinking to myself): Is this guy for real?
Me (talking to Employee #1): Why is that? Doesn’t the machine basically run itself as long as someone swipes their photocard?
Employee #1: Our rules state that only one employee can operate one machine at a time.
Me: How about the other person? (pointing at Employee #2)
Employee #2: I’m sorry, I’m the cashier. I am not allowed to run the machines.
Me: Let me get this straight. You are two perfectly able employees and there are three perfectly operational machines at this kiosk. Only one machine is being used. Neither one of you is doing anything besides watching the family look at all their photos. Meanwhile, there are 15 families in line waiting.
Employee #1: Sir, these are the rules. I’m sorry.
Unbelievable. I’m sure Disney created those rules for a legitimate reason. They don’t want employees multi-tasking, they want to keep each person’s job simple to prevent the possibility of mistakes, or perhaps they want the big lines forming to generate buzz. Who knows? I’ll give Disney the benefit of the doubt that there’s reason to the madness. That said, it’s clear that sometimes, rules end up having unintended consequences even though they were designed to solve other perceived problems. In this case, the unintended consequence could involve pissed off customers who don’t end up buying photos.
At this point, you may be wondering what any of this has to do with law. Well, today’s post is dedicated to another rule that, like the Disney rule, carries unintended consequences.
Some clients have a rule that says that you can’t bill more than 10 hours a day to their case. The idea is that if you bill more than 10 hours to their case, you can’t possibly be efficient and they just don’t want you to do it. Clients believe this somehow saves them money. The implicit message from these clients is this: all projects can be done under 10 hours.
But what do those clients say when I look at my watch the night before we file a major MSJ, and I’ve already put in my 10 billable hours and the MSJ is not close to being ready for filing? Informing a client, “sorry, but due to your 10 hour rule, I couldn’t continue working so we’re filing an incomplete MSJ” is not going to fly. So, of course, you break the rule and bill whatever you need to in order to get that MSJ in tip-top form, even if it means billing 17 hours that day. But in order not to piss off the client, you just break the time into two blocks billed to separate days so they don’t see the dreaded two-digit number on the bills. If you are billing successive days, or even weeks, of high hour days, sometimes it takes a while to “credit” the overflow time that you spent. Take a look at a bill at some point in time. If you see a disproportionate number of 9.9 or 9.8 hour days for a client that imposes the 10 hour max rule, you know what’s really going on.
How legit is this practice? Isn’t this “creative” billing? Well, it’s creative, but it’s not creative. Think of it this way: you’re billing time that you actually worked. Certainly, partners would never want you to write off time simply to stay under 10 hours if you legitimately worked more than that on a case. In fact, the 10 hour max rule flies in the face of another rule at Biglaw: don’t write off your own time.
Here’s another way of looking at it.
Rule #1: Client says no attorney should work more than 10 hours per day on my case.
Rule #2: Associate is not permitted to write off any time.
Rule #3: It’s probably malpractice (and certainly bad practice) to file incomplete court papers because you weren’t allowed to spend more time on it, per Rule #1.
These three rules are sometimes in conflict with each other. So, as an associate, do you…
Break Rule #1 and apportion your legitimate billable time to another day or days?
Break Rule #2 and incur the wrath of a partner, and lose credit for legitimate billable hours that go toward your bonus?
Break Rule #3 and risk committing malpractice, not to mention incurring the wrath of both the client and the partner for poor work product?
I think you know the answer to this one.
As for the end of the Disney story, I marched up to one of the other machines, turned it on, swiped my photocard, and bought my photo. The next person in line followed my lead and used the third machine. As I departed, I told the Disney employee, “You may have to follow Disney’s rules, but I’m just the customer. And Disney knows the customer is always right.”
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