The Supreme Court is supposed to house the smartest and brightest among the lawyer class. Sadly, that is not the case. With respect to its three Democrat appointees, Justice Elena Kagan consistently demonstrates that she can write a sentence and offer an opinion or dissent that isn’t just a collection of words. She generally gets to her point. Good for her. Her opinions are often based on feelings rather than the law, but at least she doesn’t embarrass herself with long-winded gibberish. Justices Sonia Sotomayor and Ketanji Brown Jackson, on the other hand, write with the flair of middling fourth graders writing “what I did for summer vacation” theme papers. Just filling pages.  Lawyers often write a lot of nonsense. I’ve seen lots of 20-page pleadings that would have been better at 10. More is not always good. But it is billable.

Talking or writing a lot doesn’t always translate into knowing what you are talking about, but in the practice of law, it translates into billable time.

Take Justice Jackson, who eclipsed all other justices during oral arguments in terms of speaking time. In the 58 cases heard, Jackson talked a lot. How much? Over 75,000 words. My guess is during her time in private practice, Jackson devoted a lot of her billable time to talking or writing useless/worthless motions. That’s not productive time, but gosh, it is billable.

During oral arguments in Dubin v United States, an identity theft case in which Dubin overbilled Medicare, Justice Gorsuch mentioned in an offhand comment that lawyers “round up” hours or, plainly speaking, overbill clients. Knowing chuckles from the lawyers in the audience could be heard. What do all the Justices have in common? They all were, at one point, billing for their time. They all billed clients for a living.

Lawyer overbilling is an “open secret” in the legal profession. It’s a form of “theft” that I saw repeatedly during my career. Insurance companies have tried to tamp down the practice, but it’s like stepping on a cockroach — you kill one, and a different one will pop up tomorrow.

One of the most common types of over-billing is the young associate who needs hours and inflates his or her time at the end of the month. When an associate is hired, they agree to a set amount of hours billed every month. It might be 180; it might be 200; it may be more, but that associate better hit that minimum mark, or they will be shown the door, and quickly. An associate who is 20 hours short on the day billing slips are turned in won’t just “oh well” the shortage; the associate will start to “make work.” “Receipt and review” of documents will populate lots of billing slips.

But a lot of “R&R” is repeated or pretend work. That associate has already looked at those documents. And, a fair amount of two-minute useless phone calls are billed in six-minute or 15-minute blocks. Or, it is just plain old fraud. In one of my early associate jobs, a partner had billed out his day before the day had started. He was out of the office golfing, but his billing slips showed 12 hours of lawyer work. I quit soon after seeing his 12 hours of billing sitting on his desk — at 7 a.m.

Often, young associates would show up to motion hearings that had nothing to do with their clients. In multi-party litigation, it’s easy to do. And law firms know that. I recall one hearing where a young lawyer made an appearance on my motion that he and his client had nothing to do with. When he made his appearance, I asked him, on the record, “Why are you here?” He was embarrassed, but I assure you, he still billed for the appearance. 1.5 for the hearing (It was more like 30 minutes). 1.5 hours for travel (yes, lawyers bill lawyer time for travel) and likely 30 minutes billed for “memo to file.”

At one point, I was recruited to another firm, and it was a typical grind. I was assigned a case and wrote a report to the insurance adjuster that was about five pages. A partner stormed into my office and told me that he expected at least 20 pages and that my billing had better reflect his “make work.”

It didn’t matter to him that that was basically soft fraud. He made his money off of the billing of his associates. Once I told him that no adjuster reads 20 pages (a fact he knew), the knives coming out of his eyes told me I wasn’t “part of the team.” Play the game, or get out. I got out. John Grisham has written books about lawyers committing billing fraud and getting out, sometimes on a gurney or in witness protection.

Is there a solution? Sure. Make sure that all lawyers are moral and ethical. The guardrails last for a while. Then the cockroaches return. In short, no, there is no “solution” other than making sure lawyers are honest. Lawyer jokes aside, not all lawyers are honest. Not all lawyers are “billing frauds.” Gorsuch took a swipe at the “open secret” in a mostly forgotten off-the-cuff remark. Lawyers in the courtroom nodded their heads in agreement because they know. We all know.

I ended up working for myself. I under-billed clients or billed for the time I actually did. What a concept.