Wednesday, December 20, 2006
Posted by Alan Childress
Jeff did not ask for elaboration on today's post on Amtrak billing, but here is my $ two one-hundredths (where's the cents sign on this thing?). I enjoy a good correlation error. I always thought the CEOs of tobacco companies should be arguing that cancer causes smoking. At least surely there is some expert on retainer who would prove that even if smoking correlates with cancer, that's not proof of causation--maybe the same gene that causes cancer carries a desire to smoke! My favorite pop culture example of Post Hoc, Ergo Propter Hoc error (in a West Wing season-one episode of the same name, quoted below the fold): Jeb Bartlet did not lose Texas just because he made a joke about big hats.
I think Jeff's caution or insight is especially important because we are dealing with real humans here who have public reputations: the fired in-house lawyers who are now being treated as if they are part of a clean-up from an "ethics scandal" when, to me, no one has yet shown any specific ethical breach like overbilling.
It is quite possible they were let go as part of a routine management change. I think it more likely this is connected to the swirling ethics concerns and rumors, but I don't assume it is because they did anything wrong. I assume, so far and until some proof otherwise, appearing to clean house is the politically (and public relationsally) expedient thing to do right now. The GCs may be sacrificial lambs, scapegoats, or other animal offerings to a nationally enquiring press and Congress.
In the original reports, such as those we linked here, the basic accusations seemed like many things were being presented as scandalous when they may not be--and many look exactly like how lawyers work in the non-choochoo world. One instance of that may be Jeff's detailed example of "block billing," which may be at its worst a breach of some billing arrangement in the retainer, and possibly federal regulations of billing specificity--if Amtrak is subject to the government-client ones, but they were negotiating about that all along. But it does not by itself mean overcharging. Indeed, if I were going to overbill this particular client, I would be fastidious about following their procedural requirements and just specify a lot of made-up work--I would not fall into the lapse of writing my time the way I do all the other clients. [My if-I-were-overbilling conceit with apologies to O.J.]
That's Jeff's example, and it is a good one I think, because my own experience in billing clients with two big [reputable] law firms is in line with his: we usually did block billing and everyone was fine with it as long as the time was real. I'd add that we had occasional banking or insurance clients who wanted more specificity and line-itemization (maybe more often than Jeff's 99% suggests), and we tried to comply. But the inevitable lapses were never seen as unethical or sneaky; they led to calls for reminders to be clearer and of course to client renegotiations--perhaps even excuses but hey we asked for it--about write-offs. The only scandal would be a possible write-off of actually-earned time and some client-relations hiccups.
My own example of the possibly-false scandal in the original reports is their suggestion of something awry from the fact that some of the in-house counsel came from the very law firms that were now doing Amtrak work. Imagine that! How cozy!! I am shocked, shocked to find that--you get it. Not only is that uber-typical in the trackless world (yet here it was presented as if it is by itself a conflict of interest and unethical). But indeed the changing-roles relationship has its own built-in checks: Jeff has previously argued, in different words and citing an empirical article that supports the point, that there is no more virulent anti-smoker than a reformed smoker.
Without more, these Amtrak lawyers don't deserve to be treated as if there is something inherently wrong with the fact that they left a law firm to go in-house to the firm's corporate client--and then eventually accepted and paid some time sheets that did not separately itemize each legal task but instead grouped them with the same level of billing detail as if they had been on separate lines.
Vintage Aaron Sorkin, adapted from an unoffical continuity site here, my favorite line underlined:
A few minutes later C.J., who's trying to put out a fire caused by a joke the President told, tells him:
"Sir this may be a good time to talk about your sense of humor."
"I've got an intelligence briefing, a security briefing, and a 90 minute budget meeting all scheduled for the same 45 minutes. You sure this is a good time to talk about my sense of humor?
"...It's just that this isn't the first time it's happened."
"...She's talking about Texas, Sir," Toby says.
"...USA Today asks you why you don't spend more time campaigning in Texas and you say 'cause you don't look good in funny hats.' "
"It was 'big hats'," Sam corrects her. . . .
"...The point is we got whomped in Texas," she says.
"We got whomped in Texas twice," Josh adds.
"We got whomped in the primary and we got whomped in November."
"I think I was there."
"And it was avoidable. Sir."
"C.J., on your tombstone, it's going to read, Post Hoc, Ergo Propter Hoc."
"Okay, but none of my visitors are going to be able to understand my tombstone."
"Twenty-seven lawyers in the room, anybody know Post Hoc, Ergo Propter Hoc," he asks. When no one answers, he calls on Josh like the professor he claims he has been. Josh fumbles with the little Latin he knows. The President calls out "Next!" but he gets no volunteers so he calls on the one person he knows would know. Leo hasn't volunteered, but when called on he translates:
"After it, therefore because of it."
"...It means," the President lectures, "one thing follows the other, therefore it was caused by the other. But it's not always true; in fact it's hardly ever true."