The research clearly demonstrates that the billable hour business model is an organisational system that undermines the legal professions’ wellbeing.
So why do legal organisations persist in using a system that is detrimental to their key resource?
Some may suggest that the billable hour model is at the heart of a productive legal organisation. Reich’s review of the business case for lawyers’ wellbeing concurs that the billable hour is the definitive indicator of productivity in law firms. However, Reich posits that the billable hour is merely a measure of time doing a task. This highlights that time on a task does not equate to productive work. It does not consider the quality of the work done, how efficiently that work is undertaken or the utility of the work. Thus, Reich suggests the billable hour is a measure of and rewards diminished productivity.
The Australian Productivity Commission appears to support this position. It recommends the country work smarter, not harder. The Commission suggests that investment in capital to provide workers with resources needed to do their jobs efficiently helps to increase productivity more effectively than increasing hours of work. Similarly, Reich suggests that legal organisations that invest in the wellbeing of their people will enjoy higher productivity because they have discarded the inefficient billable hour model that encourages overwork.
It is well documented that the billable hour model encourages overwork. Cognitive science demonstrates that overwork undermines performance (a common measure of productivity) and wellbeing. Cognitive fatigue occurs when people undertake tasks for long periods of time. The science suggests that taking regular 5-minute breaks, approximately every 40 minutes, ameliorates cognitive fatigue. This results in less sleepiness, fatigue and demotivation. Consequently, a work system that encourages staff to take regular breaks, rather than working over large blocks of time, is one that enhances focus, motivation, performance and productivity.
Zooming out from cognitive mechanisms to links between wellbeing and productivity, there is extensive scientific literature that supports the Australian Productivity Commission’s call for working smarter not harder. Recent research that synthesises the findings of some of this research (using met-analytic and systematic review methodologies) confirms that better worker wellbeing is associated with higher productivity. The research suggests that the relationship exists at individual, group, leader and organisational levels. Thus, wellbeing and productivity are not solely the individual employees’ responsibility.
This echoes Cadieux et al.’s research, which suggests that lawyers’ wellbeing is influenced by individual, organisational and social phenomena. This research shows that the billable hour model is an organisational system and practice, commonly a part of the culture of legal organisations, that undermines lawyers’ wellbeing. It follows that organisational changes are required to improve legal professionals’ wellbeing and support productivity.
In a profession that relies on the expertise and honed cognitive skill of its members, legal professionals need to work in conditions and within systems that support optimal cognitive performance. Since the research clearly demonstrates that overwork and the billable hour model are detrimental to wellbeing, worker performance and productivity, they are cultural and systemic factors at odds with the professions’ needs.
The profession must act to cut through the smoke and mirrors of traditional organisational practices, like the billable hour, that no longer serve the profession. The legal profession’s key resource is its human capital. Thus, as Reich and the Australian Productivity Commission indicate, the legal profession needs to invest in its human capital to improve productivity rather than require its members to put in long hours. Wellbeing is not just good for legal business; it is fundamental to the on-going viability of legal business.
What are your observations and perspectives on productivity and wellbeing in your legal workplace?
If you are a legal leader, how would reviewing your business model and work practices around billing and working-hour expectations enhance wellbeing and you and your staff’s productivity?
Support for Lawyers understands legal professionals. Legal leaders, our professionals can support you in your role and assist you to prioritise wellbeing in your legal organisation to maintain mental health and wellbeing for the long term.
At Support for Lawyers, we believe that when whole firms or organisations engage with us wellbeing is embraced as part of normal workplace culture and business as usual. This is responsible business practice and is protective of everyone.
Talk to us about how our preventative approach to enhance wellbeing can support you, your staff and your legal organisation.
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Brady, M. (2019). VLSB+C lawyer wellbeing project: Report on legal professionals’ reflections on wellbeing in the legal profession and suggestions for future reforms. Victorian Legal Services Board + Commission. https://lsbc.vic.gov.au/resources/lawyer-wellbeing-report
Cadieux, N., Cadieux, J., Gingues, M., Gouin, M.-M., Fournier, P.-L., Caya, O., Pomerleau, M.-L. Morin, E., Camille, A.B., & Gahunzire, J. (2022). Research report (final version): Towards a healthy and sustainable practice of law in Canada. National study on the health and wellness determinants of legal professionals in Canada, phase I (2020-2022). Université de Sherbrooke, Business School. https://www.researchgate.net/publication/365867261_Research_report_Final_version_Towards_a_Healthy_and_Sustainable_Practice_of_Law_in_CanadaNational_Study_on_the_Health_and_Wellness_Determinants_of_Legal_Professionals_in_Canada_Phase_I_2020-2022
Gilsoul, J., Libertiaux, V., & Collette, F. (2022). Cognitive fatigue in young, middle-aged and older: Breaks as a way to recover. Applied Psychology, 71, 1565-1597. https://www.doi.org/10.1111/apps.12358
Gutiérrez, O.I., Polo, J.D., Zambrano, M.J., & Molina, D.C. (2020). Meta-analysis and scientific mapping of wellbeing and job performance. The Spanish Journal of Psychology, 23, e43, 1-22.
https://www.doi.org/10.1017/SJP2020.40
International Bar Association. (2021). Mental wellbeing in the legal profession: A global study. International Bar Association. https://www.ibanet.org/document?id=IBA-report-Mental-Wellbeing-in-the-Legal-Profession-A-Global-Study
Kelk, M., Luscombe, G., Medlow, S., & Hickie, I. (2009). Courting the blues: Attitudes towards depression in Australian law students and lawyers. Brain and Mind Research Institute. https://law.uq.edu.au/files/32510/Courting-the-Blues.pdf
Nielsen, K., Nielsen, M.B., Ogbonnaya, C., Känsälä, M., Saari, E., & Isaksson, K. (2017). Workplace resources to improve both employee wellbeing and performance: A systematic review and meta-analysis. Work and Stress, 31(2), 101-120. https://www.doi.org/10.1080/02678373.2017.1304463
Reich, J.F. (2020). Capitalizing on healthy lawyers: The business case for law firms to promote and prioritize lawyer well-being. Villanova Law Review, 65(2), 361-418.
