In a prior blog post entitled “The ‘Does Anyone Have A Form That I Could Use’ Practice Section,” I poked gentle fun at a state bar practice section I belong to because most of the posts on the section listserve were from attorneys asking other attorneys if anyone had a particular form document that the inquiring attorney could use. Due to the volume of such requests, I had found it both amusing as well as telling that an awful lot of what attorneys do in most any practice area has to do with using forms.
And it seems that you no longer have to ask a fellow attorney for a form. You can just Google the name of a Motion or other type of legal document and you often will find a form. I have done this countless number times when reviewing legal bills from attorneys throughout the U.S.
Recently I had occasion to look up a Notice of Motion and Motion to Compel Testimony and Production of Documents in California. I suspected that the document the attorney billed 2 hours to prepare was a form document. So I Googled it, and sure enough I was taken to a form document. This form document not only had the basic form Notice and Motion, but it also had the argument for the attorney to use in support of the Motion including the supporting case authority. Comparing the attorney’s Motion with the form Motion, I could see that 90% of what was in the attorney’s Motion was in the form Motion. And the 10% the attorney had added did not take 2 hours.
Of course, a good attorney will not just take a form document as is. If she is unfamiliar with the case law cited to in the form, she will have her paralegal check a few of the cites to see if they are still good law and she may add a few words here and there to customize the form for her use. But the time spent to customize a form is not the same as the time it might take the attorney to prepare the document from scratch.
Attorneys do not like to admit they make use of form documents. But the plain fact of the matter is that all attorneys use form documents. And there is generally no problem with attorneys using form documents (aka, previously prepared work product). In fact, clients should encourage their attorneys to use form documents wherever possible as this can often save substantially on legal costs.
Where the problem with using form documents occurs is when an attorney bills the time not to amend the form document for use, but for the time it might have taken to prepare the original document from scratch. When an attorney does this, it is called “value billing.” That is, the attorney is billing for what she thinks is the value of the document to the client or for the estimate of time that she thinks she would have been spent on preparing the document from scratch. In a prior post entitled “Metadata Mining for Evidence of Stupidity and Greed,” I gave an illustration of how a partner only spent 20 minutes to modify a document that had been previously prepared (and by an associate at another law firm), but billed the client for 5 hours.
When I prepare litigation & billing guidelines for a company, I always put in a clause that obligates the attorney to use or modify for use previously prepared work product wherever possible and to bill just for the time it takes to modify the prior prepared work product.
Individual clients of lawyers should also insist that language be included in any fee agreement that obligates an attorney to use previously prepared work product wherever possible and to bill only for the time it takes to modify the document for use. The client needs to insist on this language because no attorney will ever voluntarily include this type of language in their fee agreements. For in reading hundreds of fee agreements over the years I have yet to see language in a fee agreement that would obligate the lawyer to use form documents wherever possible.
Of course, whether or not there is language in a fee agreement obligating an attorney to use form documents wherever possible, attorneys should always just bill just for the time it takes to modify a form document. But sadly, my experience has been that too many attorneys will take advantage or their clients’ ignorance on the issue and “value bill” for amending a form document.
To see if your attorney may be using a form document such as a Motion, just Google the name of the Motion and see what turns up.