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Let me start of by saying that I think highly of many employment defense attorneys. (Heck, I used to be one in a former life.) Many are honest. Many have their clients’ best interest at heart. However, the reality is that defense attorneys are slaves to the billable hour requirements that most employment litigation firm institute – i.e. 1600 hours a year to stay employed; 1800 hours per year for a bonus; 2000 per year for partnership track. I started at a firm that made a competition out of who could bill the most during a month (and attorneys are competitive by nature).

What does this mean for employers that find themselves on the opposite end of a civil complaint for race or gender discrimination; or overtime or FMLA claims? It means that some employment defense attorneys see potential hours to bill and not claims to resolve. Don’t believe me? Here is a New York Times Article that proves my point: “Suit Offers Peek at the Practice of Inflating Legal Bill.”

In a lawsuit that was filed by the law firm DLA Piper to collect $675,000 in remaining legal fees, internal attorney correspondence was produced in discovery (buried in 250,000 pages of documents) that revealed what the client’s counterclaim calls a “sweeping practice of overbilling.” So that there is no confusion, the attorneys’ emails included statements such as: “I hear we are already 200k over our estimate—that’s Team DLA Piper!”; “Now Vince has random people working full time on random research projects in standard ‘churn that bill, baby!’ mode”; and “That bill shall know no limits.”

My favorite part is the law firm’s response was to characterize the emails as an “effort at humor, but in no way reflect actual excessive billing.” So, the law firm’s best position is that we just make jokes about how much we charge our clients over the given estimated budget – not that we intentionally overbilled. I’m not sure how admitting that your attorneys don’t take how much they are billing their clients serious will make those clients feel much better. Let’s remember, the law firm did not send a memo chastising attorneys for improper humor attempts until after the emails were found and made public. Clearly, the law firm bosses knew about the emails before they were sent out in discovery and still said nothing to their attorneys.

Why? According to the story, just this one law firm generated $2.25 billion in revenue in 2012. When divided by the number of attorneys, that is $535,714.29 in revenue per attorney per year. Each employer defendant should always think about how much of that is coming out of its pocket (plus what the continued financial exposure is for an adverse judgment) and compare that to what it will take to get a case settled.

Because most employer defendants are not fully explained how expensive litigation can be, we often find that cases are more often likely to reach a settlement after a couple of defense lawyer billing cycles. This is particularly so when the employer defendant realizes that the case is probably at least a year from getting resolved.

Again, there are good employment defense lawyers out there that properly counsel their clients about the risks and costs involved in an employment claim – that really look out for the best interests of their clients. I know. I have met a few of them.

If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm is dedicated to protecting employees’ rights and solving employment disputes.


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