A Self-Inflicted Access to Justice Scourge

November 19, 2020

By Bob Glaves | CBF Executive Director

In recent posts, I have been highlighting the larger systemic changes we need to make to significantly move the needle on improving access to justice, and for good reason. As we continue to push forward on those critical fronts, however, there is much we can do on our own right now that can make a real difference.

The fact is that many of our access to justice challenges are self-inflicted, none more so than our use of the billable hour in the consumer legal market. Put simply, when we use that means of pricing our services, we are not selling what people want or what they need, and the result is that we increasingly are pricing everyday people out of the market.

What People Really Want

When people seek out legal services, they typically are looking to solve a problem, manage a risk, make a deal, right a wrong, or find peace of mind on an issue that is important to them. In their minds, a good lawyer is a means to achieve one or more of those ends as effectively and efficiently as possible.

To the extent that time is a factor in their goals, people tend to value getting things done, and ultimately reaching a solution, as quickly as possible.

There are other things people value too, but you get the idea: they are coming to lawyers for solutions to their problems.

What Too Many of Us Are Selling Instead

Rather than aligning our pricing with the solutions people are seeking, most of the profession instead offers them the billable hour. Whatever the rate being charged, the billable hour focuses inward on what the lawyer is doing, rather than outward on what the client is looking for and actually receiving.

This mismatch of what people are seeking and what too many lawyers are trying to sell them is the source of many fundamental access to justice problems that I have detailed in prior posts. I want to highlight one of those problems in particular that was underscored by a new study from across the pond.

People are More Likely to Retain Lawyers When the Price is Clear Up Front

One other thing valued by people and small businesses who do not have unlimited budgets (i.e., most people and businesses) is transparency and certainty in pricing. When people don’t know what something is going to cost and what they are going to get for it, they often just assume they can’t afford it.

For these reasons, the UK has for several years now been mandating transparency in pricing for many legal services, and a newly released study shows it is making a real difference in improving the market. Of particular note, more than half of the people and businesses surveyed in the study assumed legal services would be unaffordable going into their search. However, after they reviewed pricing information on lawyer sites, only 10% believed it was unaffordable.

There are other interesting findings on the value of pricing transparency and certainty in the study, and I encourage you to read more about it. It really underscores one of the biggest problems the billable hour creates for access to justice: not knowing what the cost will be and the value the client will receive. And people generally won’t buy things of uncertain cost or value unless they feel they have no other choice.

As for Excuses, We’ve Made a Few Lot

If I had a dollar for every excuse we’ve heard about why lawyers can’t price their services other than by using the billable hour, we might be able to solve the legal aid funding crisis.

The volume of excuses, however, does not change the fact that other businesses and professions have managed to figure this out, and a growing number of lawyers and law firms have as well.

Imagine you went to buy a cup of coffee every day and paid a different price depending on how long it took them to make it. Same good coffee, but you would pay more on the days it takes them longer when what you really want is to get in and out of there as quickly as you can.

Of course, in real life that would not happen and you would not stand for it if it did. In fact, if anything, they might be offering you a discount, an apology, or your next one free when there is a delay.

We could extend that analogy to many other areas of our lives too, and somehow these other businesses are figuring out how to tell us a price and being clear about what we get for it. As many lawyers already are proving, we can do it too, and in the process make legal services more accessible right away.

Charting a New and Better Path

I saw a great quote during a meeting yesterday that really resonated on this point:

“Just because we’ve always done it this way doesn’t mean it’s not incredibly stupid.”

And we haven’t even always done it this way! It wasn’t until the 1970’s that the billable hour started to become the pricing norm, and the legal services market for everyday people worked much better for lawyers and clients alike before then.

The way back starts with lawyers committing to doing it differently. The CBF and our Justice Entrepreneurs Project have resources to help make it happen, and new and improved versions are on the way in early 2021. 

It does not mean charging one fixed price for a case from start to finish, though that may make good sense in some instances. Subscription pricing, variations on the contingent fee arrangement, pricing by phase of the case, and limited scope representation are among the other key tools in the pricing arsenal.

The bottom line is we have it in our power to make our services more affordable and accessible to everyday people through better, more flexible pricing approaches. And we can do that right now!