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Lawyers debate over
where the practice of law is going whenever the subject
of advertising comes up. The fact of the matter is
that lawyers have been advertising for a long time.
Lawyer advertising and solicitation were common and
generally lawful in the nineteenth century. Classified
ads for legal services appeared on the front pages
of newspapers, along with those for banking services,
cartage companies and businesses important to the
development of an industrial nation.1 The
most renowned lawyer who advertised in that era was
Abraham Lincoln. In addition to newspaper advertising,
Lincoln wrote letters soliciting business from the
railroads, which were among the wealthiest clients
in central Illinois in the mid-1800's.2
In 1908, the American
Bar Association adopted the Canons of Ethical Conduct
and banned all lawyer advertising via Canon 27, permitting
only business cards.3
For seventy years, the
ban stayed in place. However, with the United States
Supreme Court's decision in Bates, the ban
ended.4 Presently, the debate over advertising
is significant only for historical purposes. We know
that lawyers, including one U.S. President, used to
advertise and the practice was commonplace and accepted.
Then, it was banned for 70 years. Now, we are back
where we started. Funny how history repeats itself.
Still, some lawyers gripe and complain about advertising,
not for the usual reasons, but because they perceive
that it is costing them business.
The fact of the matter
is that the issue is not "whether to advertise
(or not advertise)." The issue is one of employing
a good business model in order to develop, maintain
and expand one's practice. Lawyers should be thinking,
every day, about how they are going to build and maintain
their practices. This is especially true for lawyers
in Arkansas who are primarily solo and small firm
practitioners. Gone are the days when the small firm
or solo practitioner could count on enough "walk-in"
personal injury clients with claims that would provide
much-needed income to supplement the firm's or lawyer's
hourly work. The family whom the lawyer had represented
in the past on various civil, business and domestic
matters is no longer wed to that family lawyer. With
the advent of legal advertising, today's small firm
and solo practitioner must think of new ways to build
and maintain their practices.
Lawyers who began practicing
before the Bates decision may have a more difficult
time dealing with this issue than lawyers who began
practicing afterwards. It takes a little work to change
one's perspective on the practice of law. Being active
in one's professional associations, earning a good
reputation, and working hard don't necessarily feed
the bulldog. A lawyer can't help the client he never
gets to represent.
Lawyers are in the professional
service "business." They should think about
what it is that they have to offer to clients and
other lawyers, as sources of referrals, that is unique.
How does the local mom and pop hardware store stay
in business when Wal-Mart comes to town? How do other
small business owners compete? What is it about the
service or product that they offer that makes a customer
pick them over someone else?
These are questions
that lawyers need to ask themselves. What hangs in
the balance may be the continued success of their
practices. In order to help people, the door has to
stay open. This is the reality of the marketplace.
The first consideration
is basic. That is to see that one is prepared for
clients to receive prompt, professional and courteous
service. With the use of cell phones, PDAs and personal
computers at home and at the office, there is no reason
a client should have to wait more than a few minutes,
or at most a few hours, for a phone call to be returned.
Staff should receive the training they need in order
to offer the kind of service a client expects. Good
communication establishes trust, and trust is the
key to any successful attorney-client relationship.
Another consideration
is whether to outsource special needs such as legal
research and expert consultation. The lawyer should
consider what environment he or she works best in.
This can mean having a full staff consisting of paralegal(s),
secretary(s)/office manager, associate(s) and law
clerk(s), or a partner and a secretary, or even more
basic, an office-sharing arrangement where pooled
secretarial staff is made available. There are many
highly successful attorneys who outsource their staff
needs on a case-by-case basis. These attorneys usually
have a very large referral network, and enjoy excellent
associations with other lawyers. On the other hand,
having a full complement of staff and associates provides
the lawyer and client with a certain level of comfort
and confidence since all the parts are in place and
ready to go into action. Every lawyer has to make
a decision about how he or she wants to practice law.
Proper staffing is an integral part of the construction
of a successful practice.
The next issue is deciding
what the lawyer has to offer that clients would want.
What special skills, experience, training or education
does the lawyer have that would cause clients to want
to hire him or her over someone else? We can't be
all things to all people. What's our product? What
do we have to offer that is marketable? If you hired
a business or public relations consultant to advise
you on how to get your practice off the ground or
become competitive, most likely she would ask you
what you had to sell. In other words, what is it that
you do, or what experiences or other assets do you
have that would make a client want to hire you? And,
this is not necessarily confined to determining what
cases you handle best. One has to think outside the
box. For instance, are you a "people" person?
Do you enjoy getting out and being around other people
in your community, your church, your "hobby"
friends and associates? Are you a good coalition builder,
and do you just have a knack for getting along with
folks? This is an asset that needs to be mined. You
are a potential rainmaker, and should be spending
time "making rain" rather than pounding
out briefs in support of a response to a motion for
summary judgment that "Dick shot Jane."
There are lawyers who love nothing more than to spend
a good day at the computer keyboard crafting a fine
brief. Hire them, and then you run the business and
bring in the clientele. They will do a better job
than you and for less cost to the client.
Another consideration
is what kind of business do you want? Individual personal
injury cases, class actions, mass torts, commercial
litigation? You might ask yourself the question: "What
am I good at?" Details or concepts? Fine print
or big picture? There is a world of difference between
handling individual medical malpractice cases and
class action pharmaceutical multidistrict litigation
cases. Being realistic about what you can accomplish
is essential. One doesn't begin handling commercial
airplane crash cases just because it sounds like it
might be fun or lucrative. Arkansas has its share
of small plane crashes, yet we do not see very many
Arkansas lawyers handling those cases. Why is that?
Curious minds want to know. Perhaps you will discover
the answer and become Arkansas' leading expert on
these cases.
You may have developed
a special expertise that can be mined into something
that would constitute a "niche" practice.
It's a basic fact that every trial lawyer believes
he or she has at least the minimal skill to handle
a car wreck case. It would make little sense to devote
much in the way of resources toward developing a "car
wreck" practice. Yet, you may think of a new
way to make a mouse trap and find that many car wrecks
are caused by the way in which our intersections are
designed and that the height and positioning of stoplights
are a key factor.
A niche practice provides
one with the opportunity to market and build a practice
with other lawyers. No competent, thoughtful lawyer
wants to reinvent the wheel and expose himself to
malpractice and make poor case intake decisions. By
developing an expertise in niche areas, referral business
is encouraged and nourished. It also has the benefit
of building up good networking associations. You get
to know who is good at what, and who can be trusted
to take good care of your clients. Improved intake
decisions and case evaluations lead to profitability.
Many of us are susceptible to letting the prospects
of a large fee result in our making a bad intake decision.
These cases, with their large potential fees, become
unprofitable as a result of the expense and risk of
bringing them to trial. Perhaps it is because they
do not settle for a reason that is not apparent during
case evaluation. But, as litigation expenses mount
through the phases of case development—investigation,
written and deposition factual discovery, the preparation
of expert reports, depositions of experts, dispositive
motions, trial preparation and finally trial—the
"per hour" fee can begin to diminish to
the point of a net loss for the attorney, and the
client. Being able to recognize economically unfeasible
cases on the front end is essential. Having a provision
in your fee contract that you may withdraw if the
case proves to be economically unfeasible is not only
important, but it is recognized in the Model Rules
of Professional Conduct.5
Perhaps the most important
question in building and marketing a practice is,
"How does one do it?" Gerry Spence used
to tell this story in response to lawyers who would
ask him how he would get juries to award a client
large, proper compensation: Spence would explain,
"The same way you got the cookie from your mother
when you were a child. You have to ask for it."
Amazingly, many lawyers are reticent to ask a jury
for money because they don't understand how or why.
Yet, it is the only remedy a jury can provide an injured
party. Likewise, they are reluctant to ask for business
or just don't know how to ask for business. Perhaps
it is a fear that it is rude or coarse or gives the
impression that one has no business. However, there
are effective, appropriate ways to ask for business
and build up a referral network at the same time.
A newsletter is one way. It is appropriate and professional
to periodically send out a firm newsletter letting
other lawyers know what is going on in your practice
and what cases you are handling. Good newsletters
are informative, readable, short, eye- or interest-catching,
and let the recipient know why referring business
is a good and profitable idea. It doesn't have to
be fancy. It can be a simple letter on your letterhead.
Add items of interest such as the firm taking a weekend
to participate in framing out a house for Habitat
for Humanity. If a lawyer in your firm just completed
her first marathon, then for sure let her know! This
is one of those "I'm ok, you're ok" deals.
Sources of referrals want to know that the lawyer
they are referring business to is "ok."
They want to know that they are hard-working, honest,
talented, regular folks who have hobbies and families
and lives outside the practice of law. They want to
know you are a good lawyer, but they also want to
know that you are a regular guy or gal. If it comes
down to referring business to (a) a lawyer who is
outstanding in his field, but personally is a contentious
dilettante, or (b) a competent lawyer who can get
the job done, but is also one hail-fellow, well-met
kind of person, (b) is going to get the business.
For those lawyers who
do refer you business, a nice thank you note or even
inexpensive gift is an appropriate gesture. A Zagat's
Restaurant survey or Quotable Quotes by Will Rogers,
Mark Twain, and so on are examples of interesting
remembrances that will be appreciated by the recipient.
Lawyers imprint cozies, pens, and coffee mugs with
their office logo, web address, phone info. and give
them away. The idea is the same as any marketing plan—to
keep one's name in front of referral sources.
A creative and distinct
Web site is a necessary part of the equation. There
is some evidence that an informative Web site helps
a client solidify a hiring decision. It doesn't necessarily
generate business, but if a client is considering
two lawyers and one does not have a Web site or an
informative and interesting Web site, it could make
a difference in the hiring decision.
"Branding"
is another one of those marketing terms that lawyers
may cringe at but are foolish not to think that it
doesn't have its effect. When referring sources think
of an attorney, they will more likely retain a name
if there is some branding taking place. It can be
a simple philosophy expressed on one's business card
and letterhead, or it can be a logo, or whatever.
Once again, the idea is trying to separate or lift
oneself up out of the crowd.
None of this is magical.
Marketing a practice is not so much a science as it
is an effort to open doors. It may not even open up
the doors you thought it would. The effort may lead
you in an entirely different direction than you started.
The key is to do something proactive. Be smart. Be
competitive. Be aware that maintaining the status
quo can be death to a law practice. In order to have
the kind of success it takes to keep staff and associates
happy and productive, send our kids to college, pay
for the occasional but much-needed respite from our
practices, and give us an opportunity to "retire"
(if that can happen), then one can't begin early enough
to develop a business plan and think about where he
or she would like to be in 5, 10, 15 and 20 years
down the road. Just hanging out a shingle and being
a good lawyer isn't enough anymore to feed that proverbial
bulldog. It doesn't help clients get deserved representation.
It doesn't help the justice system thrive and grow.
It doesn't help keep good lawyers in the profession.
So, start thinking a little outside the legal box
and take a lesson from the pages of books by modern,
successful business people. Be proactive. Develop
a plan and stick with it. You'll be amazed at how
taking a little time to think about what it is you
are doing, and where you want to go with your practice,
will produce profitable results.
Endnotes
1. See Louise L. Hill, Lawyer Advertising (1993) and
Lawyer Advertising at the Crossroads:
Professional Policy Considerations, ABA Commission
on Advertising (1995) (Hereafter
Crossroads Report)
2. Lincoln, by David Herbert Donald, 1996
3. Canons of Professional Ethics, American Bar Association
(1908). See also Lori B. Andrews,
Birth of a Salesman: Lawyer Advertising and Solicitation
(1980).
4. Bates v. State Bar of Arizona, 433 U.S.
350 (1977)
5. Rule 1.16-Declining or Terminating Representation,
Arkansas Model Rules of Professional
Conduct.•
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