Are Men to Blame for BigLaw?

Vivia Chen, chief blogger at “The Careerist” and legal career maven, recently published a blog post reflecting on a study by a Hastings law professor, Joan Williams, documenting that men logged more hours at work than women. Ms. Chen’s post is great and I invite you to go read it. Briefly, Ms. Chen explores the application of this study to women in the law, and particularly in BigLaw, and reflects on Williams’ inference that there is something inherent in women that will forever keep them from narrowing the gap in hours worked.
At the end of her post, Ms. Chen poses two questions to her readers:

• Do you believe Big Law will ever become saner?
• Is it the male work culture that dictates the hours—or is the job just inherently crazy?

My answer to both those questions is “no” but to tell you why, let me take the questions in reverse order:

Is it the male work culture (i.e. “machismo”) that dictates the hours—or is the job just inherently crazy?

The job is not crazy but the profession is. And while machismo may be partially to blame, it’s not the only reason.

Yes it’s true that the majority of the profession has traditionally been male (though women now out-number men in law school) but it’s also true that those guiding the profession to date have also been “lawyers.” Some of the traits common to all lawyers such as risk-aversion, drive, and competitiveness, can also be seen as at least partially responsible for the current state of the profession.

Lawyers of either gender, but particularly those at BigLaw, do what’s safe and the billable hour is a very safe way of generating revenue. You simply sit down, start working, and send out bills. Charging by the hour does not require risky investments in innovation or capital.

Lawyers, particularly lawyers in BigLaw, are also very driven, competitive, and successful. They completed at least nineteen years of formal schooling, usually at or near the tops of their classes, bested numerous aptitude and subject matter exams, and satisfied other necessary professional and extra-curricular requirements to achieve respected degrees and high-paying jobs.

It’s not hard to see why that risk-averse and driven population concluded that the number of six-minute increments accrued to one’s clients’ bills, and by extension the number of hours spent at work, would be the means by which success in BigLaw, and in the law practice in general, is determined: it’s easily measured and scalable, and can be very lucrative.

Therefore, while machismo may be to blame, it may also be that lawyers’ innate risk aversion, drive, and competitiveness are responsible for the specific, unique, and, somewhat perverse, incentives that now dictate the legal profession.

The more troubling question is not how we got here but where are we going?

This is where Ms. Chen’s first question comes in: Do you believe Big Law will ever become saner?

I do not. The system has become too entrenched and the incentives too great to unwind.

Partners who have made it to the top of the pyramid have little motivation and even less incentive to change the model that now benefits them quite handsomely. Associates, be they men or women, who express dissatisfaction with their condition can be readily replaced by another associate eager to take a prestigious high-paying job and put up with the inhumane treatment. (I’m reminded of the reaction of a BigLaw partner to one associate who indicated that “. . . working seven days a week no matter what salary I was getting was crazy.” See the rest of her fabulously-told story on one of my favorite sites, Leave Law Behind.)

The only option is to overhaul the whole system. I’ve blogged elsewhere about ReInvent Lawand why innovation in the legal profession is challenging, so I won’t go into that here. I will say that lawyers seeking true professional and personal balance are battling an entrenched and well-resourced foe that is not likely to acquiesce quickly.

In conclusion, while men may have influenced the BigLaw model, attributing success at BigLaw to male machismo, or failure there to its lack, may not be entirely accurate. Instead, the system reflects the values of its members both male and female. For better or for worse, lawyers themselves have made the billable hour unquestionably central to the traditional practice of law.

Either way, the responsibility to change the prevailing model, dominant both at BigLaw and throughout the industry, and make that model more accommodating to both women and men who want successful and balanced careers falls on the shoulders of all attorneys in the profession today.

The most important question is not who broke it or as Ms. Chen asks will it ever fix itself but, rather, how are we going to fix it?