Despite the myriad of benefits associated with flat fees – from rewarding efficiency rather than time to eliminating onerous timekeeping – most attorneys still haven’t adopted them. One concern that attorneys have about flat fees is that the arrangement will encourage client phone calls every minute or leave attorneys holding the bag against a zealous opposing counsel prone to filing motions on everything.
Still, attorneys aren’t without protection. One source is your own expertise and data. When you look back over client invoices, consider how long it took to resolve cases generally and base a price on that. If a litigious opposing counsel is an outlier, the extra hours will average out against those cases that resolve quickly.
But a sow (scope of work) is the most powerful tool that lawyers have to prevent the possibility of a client or opposing counsel hogging your time. With regard to opposing counsel, you can do some research and figure out their practice in certain cases. If your opposition is known to be aggressive, you could propose a clause stating that the flat fee applies for responses to two motions only, and any others will be billed at an hourly rate. The same practice applies for clients – if you want to avoid lengthy calls, encourage unlimited emails under your agreement but charge extra for phone calls. And if you’re concerned about emails round the clock, tell clients that the agreement covers unlimited responses to emergency emails (you can define emergency in your agreement) and a charge for other emails will apply. A tight scope of work offers the best protection plus it’s empowering to clients by helping them understand your practices and preferences.
For more ideas on flat fees, take a look at the above video, or my article from a few years back, Six Ways to Avoid Paying a Price for Fixed Fees.