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There are only a few things worse than sitting down to type out a motion, letter, or any other piece of writing and being struck with a case of writer's block. However, for attorneys, the writer's block problem is amplified because of the ethical issues surrounding billing. Can you bill the client for banging your fists against the keyboard while staring blankly at an empty word document?
Like bathroom breaks, or other short breaks, whether continuing to bill your client while working through your writer's block will depend on what you're doing to do so, and what's on your mind while doing it. While each state has its own set of legal ethics, generally, whether or not you can bill will depend on where your head is at.
A Billable Hour for Your Thoughts
With all the different strategies for working through writer's block, it might not be the worst idea to start with ones that are clearly billable. For instance, reviewing prior pleadings, trying to create a basic outline, or even researching and using a form from a practice guide, would all be considered billable. But, as you know, as a lawyer, you can bill for simply thinking about a case.
Although time spent staring at a blank screen might be billable if you're thinking, planning, outlining, or at least awake and trying, it's a little less clear when you take a walk, or decide to get some exercise. If you are actively thinking about your client's case while walking or exercising, then it might be alright to bill for that time. But, if your activity to get the blood flowing leads to distraction, you probably need to stop the clock.
So, if rather than getting moving while actively thinking about your work, you pick up a novel, or video game, or login to social media, billing that time is likely not appropriate, even if it helps you get back to work. The same goes for calling your spouse, or a friend or family member, or stopping by a colleague's office to chat.
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