Is Proofreading Billable Legal Work?

24 May, 2020

By Ivy B. Grey

What is billable legal work? Possibly not proofreading.

The task of proofreading is both all-important and unimportant. Billable and nonbillable. Because the cosmetic perfection of legal documents serves as a proxy for our legal abilities, proofreading gains outsized importance. It is so important that, according to Lexis Nexis, lawyers spend up to 10 hours per week doing it. And much of that time is written off. This creates an untenable situation where legal professionals spend too much time on a task that they won’t get paid for doing.

How can this be resolved when we know that simply skipping proofreading is not an option?

Billing for Drafting, Editing, and Revising

Let’s step back and consider the many tasks that go into creating a legal document.

Drafting is the act of writing out the information that you have synthesized. It includes crafting arguments, analogizing rules, and documenting the solutions that you’ve created for your clients. This part of the process is billable legal work and clients are happy to pay for it.

Revising and editing is the process of improving content, clarity, structure, and substance. Because you’re working to clarify meaning, this part of the process is also billable legal work. Use tools like jEugene and American Legal Style for PerfectIt to ensure that your writing is error-free. These programs are inexpensive so you can afford to buy them for yourself. Your reputation is worth it.

Discounting Proofreading and Polishing

Now think about proofreading. It is the process of reviewing a completed written document for inconsistencies, spelling, grammar, and punctuation errors, formatting mistakes, and typos. It’s also where you check Bluebook citations and defined terms.

Some aspects of proofreading require legal knowledge, for example, to recognize a substantive error created by a typo or other inconsistency. And other aspects are merely superficial and administrative. In truth, these categories exist on a continuum. As you perform more rounds of proofreading, you move from one side to the other. When you fix and filter out the major errors, your work shifts from substantive to superficial.

By the time we get to the third, fourth, or fifth round of review we inherently recognize that our work may not billable, yet we feel it must be done. That’s when we write off our time. But where should we draw the line?

What Aspect of Proofreading Is Billable?

Proofreading is unquestionably important. Typos in legal briefs correlate with negative outcomes. And the act of proofreading does include context-specific judgment and knowledge. Think about why we proofread legal documents:

It helps to proactively eliminate confusion.
Sloppy and confusing writing can lead to malpractice, litigation, and other unwanted outcomes.
Consistency in documents builds confidence in your position.
Error-free writing encourages the reader to focus on (and accept) your ideas.

This indicates that there is some “independent legal judgment,” as required by Lola v. Skadden, involved in at least part of the proofreading process.

Automation Changes the Calculation

So we can see that some aspects of proofreading have always been billable for lawyers and some can be delegated. However, while billing full rates for proofreading might have made sense thirty years ago, it may not be true now. There are three reasons:

Under Lola v. Skadden, we must contemplate what constitutes legal practice. Here, the rule appears to be if the work can be automated, then it’s not the practice of law.
Under Model Rule 1.1, Comments 5 and 8, we must consider what technologies lawyers should be using to be considered competent. Lawyers must use the technology tools of the trade, which includes MS Word.
Under Model Rule 1.5, we must reflect on what is reasonably billable. Lawyers have an ethical obligation to work in a cost-effective manner and to avoid churning hours. If lawyers are not using readily available and inexpensive technology then fees may not be truly earned.

So caselaw defines legal practice as that which can not be automated. And the Model Rules now tell us we should not spend billable time manually performing easily-automated tasks, particularly when the lawyer knows that the task could be automated. This provides some insight to where certain parts of proofreading fall within the billable continuum.

Legal Proofreading Can Be Automated—In Part

The mechanical aspects of proofreading can be automated using simple, inexpensive rules-based technology. This includes checking documents for internal consistency errors, including hyphenation, capitalization, paired punctuation, bullets, numbers, figures, and headings. No client wants to pay $250 per hour for a lawyer to do this work—and they shouldn’t have to.

Another proofreading task that can be automated is checking for formatting, spacing, spelling, and capitalization errors in Bluebook citations. Since legal research is performed only by lawyers and paralegals, clients associate Bluebooking with value, yet there are limits to how much billable time can be devoted to this task.

After Lola v. Skadden, the fact that a significant portion of legal proofreading can be automated raises questions about whether it qualifies as billable legal work. Furthermore, the fact that automated proofreading tools can cut manual proofreading rounds by half (or more) creates a tension between lawyers’ billable hour targets and clients’ legal spend budgets. Learn how you can automate your proofreading process to save time and make more money today.

Reasonable Billing for Proofreading

The best way to resolve the tension is to use low-cost automated proofreading tools where they save time, and bill for the part that requires legal knowledge. The Model Rules and Lola v. Skadden point to this conclusion.

Automated proofreading tools allow a lawyer to perform one close, manual round of proofreading (which is billable) and then use technology for the remaining proofreading rounds (which are billable when assisted by technology but not billable if done manually). PerfectIt is the ideal fit for this scenario.

PerfectIt with American Legal Style is a proofreading and editing tool that checks for errors using familiar spell-check-like functionality and informative commentary. It finds errors such as misplaced periods, transposed letters in court and reporter names, incorrect capitalization, and missing or extra spaces in Bluebook citations. It also checks for consistent capitalization of defined terms and use of acronyms, legal-specific typos, and errors in terms of art. It leaves every decision up to the lawyer, but it lets you make those decisions faster and more effectively than doing multiple rounds of manual proofreading. That’s why it’s used by over 500 law firms, including three in the AmLaw 100.

With proofreading software like PerfectIt, lawyers do not waste time that cannot be billed and clients do not overpay for work. At the same time, quality improves, there are fewer write-offs and projects are completed faster. It makes sense for both lawyers and clients.

Conclusion

Thinking about automation and efficiency as the enemy of a profitable legal practice is the wrong way to conduct the business of law. It not only violates ethics rules, but it inevitably leads to billing write-offs too. You can start producing better legal work in less time, but for higher value, today. PerfectIt helps you cut the time spent proofreading so that you can balance the competing demands of the business and practice of law. To see how you can avoid write-offs and make sure all the time you spend proofreading is justifiable, download the free trial and start saving time today.

About Ivy B. Grey, JD, LLM

Ivy B. Grey is the creator of American Legal Style and an advisor to PerfectIt. Her work on technology competence and ethics has made her a respected thought leader in legal tech. In 2018, Ivy was recognized as a FastCase 50 Honoree and a Women of Legal Tech, class of 2018 honoree by the ABA Law Technology Resource Center.

Ivy practiced in the field of corporate bankruptcy law for ten years before making her transition to full-time legal tech in November 2018. Ivy received her LL.M. from St. John’s University School of Law and J.D. from the University of Houston Law Center.