“I saw a job post the other day. It required 4+ years of experience in FastAPI. I couldn’t’ apply as I only have 1.5+ years of experience since I created that thing [FASTAPI]… Maybe it’s time to re-evaluate that “years of experience = skill level.”

- Sebastián Ramírez (Creator of FastAPI)

Introduction

Organisations equate experience with proficiency, competence and capability. The legal profession is no exception and this fallacy is exemplified by how costs are assessed where a lawyer with more years of experience is deemed more valuable than a lawyer with fewer years. 

This is even the case when a lawyer with 20 years of post-qualification experience (“PQE”) that has won no cases or closed no deals is deemed more valuable than a lawyer with only three years of PQE that has won or closed every single case or transaction he/she has ever worked on.

The question is whether assessing costs on a PQE basis is an antiquated practice that needs revisiting.

The Current Situation

According to the solicitors’ hourly rates (“SHRs”) for party and party taxation in the civil courts in Hong Kong, SHRs are positively correlated with the number of years of practice, in recognition of seniority. 

As a result, when the court assesses legal costs during the taxation process, parties are ordered to pay more for “more experienced” lawyers even if the quality of service does not correlate. 

Conversely, transactional lawyers with more years of PQE are also able to charge their clients higher hourly rates than younger ones even if the output does not correlate. 

This fallacy is also commonly seen during the recruiting process in law firms where the standard practice is to require candidates to have a certain number of years of experience in a specific practice area. This fallacy has also, ironically, led to partners (whom might have below average achievements) making judgments on the following lines:

“It is not possible for a candidate with your years of PQE to have such levels of achievements / experience…”

- Common Fallacy of Hirers

A perfectly suitable candidate may have been pre-judged / mis-judged by underperformers setting the bar based on their own sub-performance. 

Factors to Consider

Knowledge and skillsets from other industries should be considered when deciding costs. A newly qualified lawyer may have studied or worked in other industries and developed knowledge and skills transferable to his or her practice in law. =

For example, US law firms with intellectual property practices welcome PhD graduates in technology or science. Besides, even though experience may mean accumulation of knowledge and skills, lawyers with more ‘focused’ experience may have a one-track mind and apply one line of thought to new problems and issues. 

There may be a contrast with the mind-set of junior lawyers with non-legal backgrounds that may not be as restricted as their more experienced colleagues. The juniors may be able to think out of the box and offer more creative ways to solve problems. 

Lawyers have to deal with a mass of information every day. Most of the time, the information is not organised or useful. The ability to consume a lot of information and draw logically well-formulated conclusions is vital for good lawyers. Experience does not necessarily improve this ability. 

Some lawyers with many PQE years may waste a lot of time dealing with all the information they receive because they do not have the ability to sift useful information to save time for their clients. 

Conclusion

It is time to let go of the experience bias and the PQE illusion, and revisit our assessment of legal costs. The relationship between competence and experience is analogous to maturity and age. Like maturity does not come with age, competence does not come with experience. 

The existing costs assessment regime under para.1(2) of Part II of the First Schedule in O.62 of RHC, (e.g. specialized knowledge) would seem to enable the Courts to take factors such as pre-legal experience into consideration, unfortunately, the provision is not actualized to its full potential because it invariably over complicates the cost assessment process.

That being said, the technology exists to overcome this impasse. Artificial intelligence and big data can collate and apply the relevant factors of a practitioner to provide a more practical assessment. So, remember:

• A lawyer can be inexperienced once, but incompetence can last a lifetime.
• If given a chance, junior lawyers can put their capabilities and skills to good use and become winners. At the end of the day, what matters is how well you do something, not that you have done something before.
• Don’t overrely on PQE or you might unrealistically disqualify the most qualified candidates.
• Be wary of the “blockchain lawyer” advertising 20-plus years experience. You might be hiring a dinosaur to operate a computer. 

– Joshua Chu, Solicitor,
ONC Lawyers

– Anna Lau, Solicitor,
Ravenscroft & Schmierer (Solicitors & Rechtsanwälte)

– Stefan Christian Schmierer, Ravenscroft & Schmierer (Solicitors & Rechtsanwälte)