Marketing Change - Differentiation Amid Upheaval

Clients have demanded changes from their law firms for years, but the economic downturn accelerated this process.  Law firms have begun to adapt business concepts that have proven to be effective in other business segments.  The most progressive law firms have embraced these changes and proactively seek opportunities to showcase their new capabilities to clients and prospects.  Leaders at these law firms have also discovered that change can be more profitable and help the firm stand apart from those clinging to the old ways.  Marketing takes on a whole new meaning at firms where growth is predicated on news ways of doing business. To read the full article published in The Legal Intelligencer, click here (a subscription may be required.)

Nobody's Somebody Everywhere

I'm continually amazed at the curious phenomenon common to the legal profession, where we anoint to celebrity status certain lawyers who appear to have mastered a particular subject matter. It goes beyond wishful thinking and bleeds into blind optimism that somehow we are as world-famous, if not world-class, as we think. I visited four cities during one busy week recently, meeting with something like twenty law firm clients of all shapes and sizes to discuss trends in legal marketing and business development.  In separate conversations at three different firms, legal marketers described one of their top lawyers as "One of the best, if not the best, in the country in this practice area."  This would be a startling coincidence, as the cities and firms I visited could best be described as a random sample from the NLJ 250.  What are the odds that of all the practice areas, and of all the firms in this group offering these practice areas, and of all of the lawyers in these firms engaged in these practice areas, I was sufficiently fortunate to cross paths with the top practitioner three separate times? Astounding!

The stark reality is that not every accomplished lawyer is a celebrity.  And even those who have mastered their domain and are indeed shining lights in the profession are often little more than transient blips in the daily lives of the business professionals who hire them.  Ouch.

I've written previously about this concept, which hearkens back to our school days.  Imagine the coolest guy or the most popular gal in your high school.  Now imagine your hero transplanted overnight to a different school a thousand miles away.  Will Miss Popular or Mister Big Man on Campus be afforded the same privileges and adoration by the fawning class immediately upon arrival?  Isn't it more likely that some measure of their "success" is a function of time and location and isn't readily transferable, at least not immediately?  I say this with the greatest amount of respect for the exemplary credentials and accomplishments of the many lawyers I've hired and on whom I've relied over the years in my corporate career:  I simply can't recall your names, even though by and large I valued your contribution in addressing my business issues.

A couple years ago I gave a talk to a group of lawyers assembled for a conference in a South American country.  After I had returned to the airport and while sitting in the business lounge awaiting my flight home, I suddenly became aware of a large number of thick-necked men in dark suits roaming about and a growing sense of hustle in the airport staff.  One beefy man was evidently assigned to watch me, as he stood a short distance away gazing alertly in my direction.  In time a private plane pulled up on the tarmac outside the ground floor lounge and a non-descript man in a natty suit disembarked and was accompanied into the lounge by several stern men, and when the bags were retrieved they all disappeared in a flash out a side door.  To this day I have no idea who this dignitary was, although he was clearly of some importance to the locals.  However, I have a distinct recollection of annoyance, as whoever he was delayed all air traffic for a short time, including my departure, which put my later connecting flight at risk.

This anecdote came to mind recently when I was chatting with a General Counsel after we participated on a panel discussion together.  We were both invited to speak at a law firm partner retreat, sharing anecdotes and best practices between in-house counsel and outside counsel.  She admitted some reluctance, because though she had recently concluded a successful and quite large transaction with the firm's help, she was not delighted with the performance of one of the senior partners.  He and his team delivered excellent legal advice, she reported, but she was constantly chasing the partner for budget updates and she was regularly negotiating invoices that reflected much higher fees than she had agreed to.  Each conversation followed a predictable path:  the partner would patiently (and somewhat patronizingly, she added) explain why the nature and complexity of the transaction allowed little predictability, and the partner claimed that other clients happily paid his fees because he delivered the desired results.  The partner would then agree to write down a portion of the invoice and the cycle would repeat the following month.

But it was the other predictable conversation that troubled her more:  the divisional CFO would request a quarterly budget update for her transactions, the invoices on this matter would exceed budget every quarter, and even when she negotiated a write-down and added cushion she was left in the unfortunate position of explaining and justifying the budget exceptions.  Again and again.  To the person who signs her paycheck.  Not surprisingly, the CFO didn't know the sterling reputation of the lawyer, didn't have an appreciation for the complexity of the legal matter and accordingly at the conclusion of the transaction he strongly suggested that this lawyer not be re-hired for future work based on his "poor" performance.

While there are several learning opportunities here, a key takeaway is the lawyer's misguided sense of importance in the client's operation.  His lack of interest in providing budget predictability was, to the ultimate buyer of the lawyer's services, an indication of poor performance.  The renowned reputation of the lawyer, the presumably high quality of legal work product and the successful conclusion of past engagements meant little.  Too often lawyers lose business without realizing it.  My friend the GC wasn't planning to "fire" the lawyer but she would protect her integrity and her future legal budgets by simply not re-hiring this particular partner.  She was, she shared to little surprise, inundated with unsolicited approaches from other capable lawyers who might deliver the same result but with less surprise and stress.  It wasn't the overall cost, she reiterated, it was the constant uncertainty and failure to adhere to a budget that troubled her.

At a recent conference held at the Opryland Hotel outside Nashville, I was dashing to a very early breakfast meeting when I passed a young man in a cowboy hat strumming a guitar while sitting alone in an empty side lobby.  "What a curious time and place for the hotel to arrange entertainment," I thought as I sped by.  When I returned an hour later, this same young man was at the head of a long line, signing autographs and posing for photographs.  As it turns out, he was a well-known country music star who had just concluded an  interview on the Grand Ole Opry radio station conveniently located within the hotel (who knew?).  Several dozen fans came out to hail the star and he caused quite a commotion.  Don't ask me who he was, because the sum total of what I know about country music and its talented stars could be written on a guitar pick.  But that's the point.  I wasn't this young man's target audience so to me he was merely a curious diversion on the walk back to my hotel room.

Whether you're a practicing lawyer who believes that you're a star in your field, or a marketer asked to cater to the needs of one of these many stars, be sure to first ask some tough questions: Am I selling only a reputation or am I selling solutions to my client's business challenges?  Have I confirmed what constitutes a quality work product for this client on this engagement?  Am I confident that my contact and the person who pays the legal bills share the same definition of quality work product?  Am I working as hard to keep this client satisfied as I worked to win this client in the first place?

It's hard work to achieve the many accolades and laurels that accomplished lawyers are awarded.  But let's be sure not to rest on those laurels, particularly if there are hungry rivals waiting to delight your clients.  Your reputation alone may not be sufficient to win, and keep, work from dissatisfied clients.  And it might might be humbling, but extraordinarily helpful, to acknowledge that your reputation might not mean all that much in the first place.

The Legal Futures Conference, October 28-29 in Chicago

I have the good fortune to be a Fellow of the College of Law Practice Management, a group of highly esteemed and accomplished professionals who have spent their lifetimes improving law practice in a myriad of ways.  My own humble efforts in this arena were recognized some years ago when I was nominated and inducted into this group.  For me, a high point of my year is attending the College's annual conference where I can attend riveting discussions delivered by people I admire, and on occasion deliver some of my own remarks to the group on issues of the day. This year's conference is shaping up to be an inspiring event, as the list of profound topics and worthy speakers is unparalleled.  Titled "2011 Futures Conference: Challenging the Law Practice Model" with a special symposium on "Defining Value in Value Billing," I submit the following examples of the extraordinary content to be discussed:

What is the Future of Price: Defining Value in Value Billing with Ron Staudt, Toby Brown, Paul Lippe and Ellen Rosenthal

Disruptive Technologies/Innovative Thinking with Marc Lauritsen, Richard Granat, Maura Grossman and Kingsley Martin

Law Practice Without Borders with Jordan Furlong, Simon Chester, BieBie Que and Pam Woldow

Future View: Do You See What I See? with Sally Fiona King, Ross Fishman, Dave Hambourger, Chris Murray, Chris Petrini-Poll

Innovation, with Velocity with Tom Clay, Raymond Bayley

Finally, I will be presenting along with several esteemed colleagues.  Session moderator Ron Friedmann describes the session as follows:

Law Factories vs. “Bet the Farm” Firms Will law firms of the future need to segment clients in new ways? Might some firms focus on “industrialized” practices: hyper-efficient work using automation and low cost resources? Might others focus on “bet the farm” cases using mainly top legal talent? Or do we need to focus on the “bread and butter legal work” middle ground? If the market segments, will it do so by practice, by firm, by matter type or along some other dimension?

Toby Brown, Vinson & Elkins; Timothy B. Corcoran, Hubbard One; and Mark Robertson, Robertson & Williams, join me to lead a highly interactive session. Each of us will kick-off the session with a maximum 2-minute intro. We will organize and facilitate break-out discussions around a series of questions, including:

• What does it mean to industrialize law practice
• Can a single firm play both ends of the spectrum (factory and farm)?
• How big is the middle “bread and butter” segment and can this be industrialized?
• What large firm practices have industrial elements
• What consumer practices have industrial elements
• If paradigm is true, what are the implications for marketing. For professional development? For ethical compliance?
• Should law school teach lean six sigma, process mapping, or industrial engineering?
• Alternative service providers - cause or effect?

If you don't recognize the speaker names above, then you aren't paying very close attention to the colossal systemic and sustainable changes being wrought in the global legal services marketplace today.  Google any one of the names and you're bound to learn something.  Better yet, attend the conference and learn from all of them.  The conference is intended for law firm leaders, managing partners, executive directors, chief marketing officers, directors of professional development, law school deans and anyone else interested in the future of the business of law.

This year's Legal Futures Conference will take place in Chicago on October 28th and 29th, and is presented by the College of Law Practice Management in conjunction with the IIT Chicago-Kent College of Law.  For more details about the conference, click here.  To register, click here.

I hope to see you there!

Respecting the Rule of Law Even When It Hurts

It seems as if the entire Internet went wild when Casey Anthony was acquitted of the charge of killing her daughter, Caylee.  Anthony was found guilty of lying to police during the investigation but isn't expected to serve additional time beyond the period of incarceration prior to her trial.  There was, and continues to be, great hue and cry over the outcome of the case, with nearly all pundits decrying the outcome as unjust, a miscarriage of justice, a travesty. The defense lawyers are accused of introducing junk science and the jurors are deemed to be idiots.  After all, the evidence as presented in the press and trial broadcasts overwhelmingly portrayed Casey Anthony as white trash whose social life was hampered by her child, and once the child was gone she obstructed the police investigation while continuing her partying ways.  Clearly the judicial system broke down and justice was not served by letting her go free.

Or was it?

I have no particular insight into this case, and I watched and read substantially less about the case than the pundits and television lawyers who can readily rattle off evidence and timelines and motives.  Nevertheless, from my standpoint, the judicial system worked.  Whether the verdict was the right one I'm not qualified to say.  Was Casey Anthony an unfit mother?  Quite possibly.  Did Casey Anthony kill her own daughter and get away with it?  We may never know.  Should she go to jail because it sure seems like she's guilty?

Our criminal justice system is based on the premise that the accused is innocent until proven guilty.  And our system requires that the government convince an impartial jury, based on lawfully obtained evidence, that the accused is guilty of the alleged crime beyond a reasonable doubt.  Failing to do so requires an acquittal.

This means that sometimes bad guys go free, possibly because the prosecution performed poorly, or the police obtained unlawful evidence that could not be introduced into trial.  We've all read accounts where defendants confessed to a crime, yet the confession was not admissible in court and therefore the guilty party walks away.  Surely an exception can be made in these cases?

What about the many cases from yesteryear that have been re-opened once new evidence or new investigatory techniques are introduced?  How many residents of death row have been fully acquitted of the crime for which they have been imprisoned and scheduled to be executed -- not just had doubt cast on their guilt, but absolutely ruled out as a possible suspect knowing today what we didn't know at the time of trial?  In some of these cases there was also a confession, though as it turns out it was inaccurate.

Of course defense lawyers will seek every advantage, including venue shopping to find sympathetic  judges and retaining jury consultants to learn what techniques are more likely to nudge a jury toward an acquittal.  Defense lawyers will hone in on every mistake made in the investigation, cast doubt on the credibility and motives of honest civil servants, introduce theories that distract from damning evidence and foment doubt.  But this is what a fierce advocate is supposed to do.  If the system works, then by and large the government will prevail over these tactics and the accused will be found guilty if he or she is indeed guilty.

Sometimes these tactics lead to a guilty party walking away, but each instance serves as a learning opportunity for the police and prosecution and presumably they will improve their approach next time.  It breaks your heart to hear of a guilty criminal who escaped punishment only to commit another crime.  But it doesn't mean the overall system is flawed.

On a macro level, this is how the judicial system is supposed to work.  Contrast that with the mob mentality exhibited recently in countless blogs, tweets, news articles, editorials and Facebook posts, in which so many people who are so certain of Anthony's guilt believe that anything short of a guilty verdict means the system is broken.  Some have even hinted at taking matters into their own hands to deliver swift justice.  How can this possibly be deemed a better system than due process under the law?

Imagine someone accused of a heinous crime.  Imagine that through mere sloppiness or outright malfeasance the arresting and/or investigating officers took some shortcuts that helped cement the case.  Imagine that the prosecutor operates under the understandable assumption that anyone caught so deeply into the system must be guilty and therefore no leniency or plea deal is offered.  Imagine the defense lawyer who ponders the overwhelming evidence and decides that it's not worth a robust defense since a finding of guilt is inevitable.  Imagine the jury and the judge are eager to get on with their busy lives so the proceedings aren't given the proper respect but rushed through.  Any one of these could be enough to send an innocent person to prison.  Is it so hard to believe that on occasion, one or more could occur?

Who did you have in mind as you pondered this?  How does it change things if you consider it's your mother, or sister, or nephew caught up in this farce and you know -- not hope, not suspect, not desire, but really know -- that she or he is innocent of the crime?  Do you see how a system rigged to presume guilt could steamroll an innocent party?

Now replace your kindly mother, beloved sister, or rascally nephew with a low-income, poorly-educated, inarticulate, slovenly stranger, the likes of which you've seen only from afar working at minimum wage jobs.  Given the same facts, why does this person deserve any less protection under the law?

I'm not nearly as eloquent on this topic as I'd like to be. There are many other opinions out there, some of which I agree with, some not so much, even when the conclusion is the same.  For me it boils down to cherishing a judicial system that makes it harder rather than easier to find someone guilty, else we become a society that allows mob rule or conventional wisdom or religious tradition or our leaders, elected or otherwise, to decide our fates.  And I'm just not ready to accept that.