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Introduction

Marketing, more than most areas of management, is an investment of time that can produce a very large return or a very low return. Quite often it is the latter. Marketing mistakes are being committed by many companies and professional marketers. The recent publication ” Marketing Myths That Are Killing Business — The Cure for Death Wish Marketing” by Kevin J. Clancy and Robert S. Shulman has a whole book full of bad marketing practices. A major theme of many marketing books is what not to do as much as what to do. It is therefore necessary, especially for lawyers who are generally untrained in marketing techniques, to discuss management and marketing principles. Knowing the right principles should lead to the development of successful applications.

A few general management principles that are important in today’s market will be presented first. Then some new and some old significant marketing principles will be discussed followed by potential advantages of the small firm / sole practitioner. Then specific applications will illustrate the previous principles.

Though I will be somewhat negative about present-day lawyer practices, I am positive about the changes that can be made by lawyers to improve.

Management Principles

Innovation: The title of the excellent book by Matthew J. Kiernan says it all “Get Innovative or Get Dead”. A law firm cannot rest on its laurels in today’s economic environment. With limited business for too many lawyers and little client loyalty a lawyer simply has to be innovative and different to survive let alone prosper. Innovation is the most important management principle in every management function but especially marketing. According to the dean of management studies Peter F. Druker “Because its purpose is to create a customer, a business enterprise has two — and only two — basic functions: marketing and innovation. Marketing and innovation produce results: all the rest are ‘costs’”.

Fortunately it is really quite easy for a lawyer to be innovative. All one must do is copy what other lawyers are doing or copy what other businesses are doing. Business writer Tom Peters in his book ” Thriving on Chaos” calls the latter ” creative swiping” . Peter Drucker in his book “Innovation and Entrepreneurship” presents a system of how to be innovative. One does not have to be a creative genius to be inventive it is a matter of following management principles. Drucker also makes the important point that the best innovative ideas are really simple rather than complicated.

A Bias for Speed and Action: We live in a world where there is a need for, and an expectation of instant gratification. With computers, faxes, electronic mail and cellular phones, clients need and expect quick replies to their requests. Some companies make their ability to act quickly their main selling point. Being the first to do something which is a basic ” positioning” theory, is also very important in today’s market. Ideas are quickly copied and therefore being first has a competitive advantage.

Lawyers have not made a prompt response a priority judging by the complaints of even how long it takes a lawyer to return a simple phone call. Lawyers have also seldom made the quick processing of a file a priority either. Being a relatively conservative group lawyers are often slow to make management decisions but tend to over study an issue. Look at how long it is taking even major firms to put up a simple web site or in some cases even to have e mail. Mr. Kiernan states that it is better to be 80% right than 100% right but three months late.

Be Proactive and Experiment: With the loss of the loyalty factor and the inability to rest on one’s size and reputation, a law firm must reach out and make things happen. Again lawyers being a conservative group are not noted for experimenting or changing the status quo. It is in our culture not to change the precedents that have been interpreted for hundred of years. We still have not even managed to produce wills that are easily understood by the public but prefer to rely on the old clauses.

Like innovation, it would not be hard for lawyers to be proactive and experiment because we are so far behind and do so little experimenting. To experiment, however, one must be prepared to fail. Lawyers, because of their large egos, are not easily prepared to do this. However if one does not try something new, how does one know what may be a major positive experience? From failures come new and better ideas as well as the motivation to succeed.

Ongoing Learning: It is important to learn continually the latest new theories or computer programmes to improve one’s practice. Failure to do so will make a firm look like a dinosaur to many of their clients. Clients will move on to the firm that seems to be keeping up with the times. Lawyers who have a web site indicate that is a main reason why they are there even though those sites are presently not bringing in a lot of clients.

Lawyers are too busy just doing the file work and perhaps keeping up with the law to spend enough time to stay abreast of management and computer technology. It is also in their culture to consider that management issues are beneath them. At any continuing education program if management issues are discussed at all they are given a low priority even in these tough times. But a lawyer who embraces learning management theories will have a major competitive edge in our information society. An alternative to reading entire books are services like ” Executive Book Summaries” that give eight page outlines of business books. Business magazines like ” Success also give short outlines of topical business books as well as articles on the newest theories.

Trend Tracking: A good business will consider the future as well as the present. Unfortunately lawyers and their organizations live more in the past rather than even the present. Again it is part of our culture that precedents are what are more important than keeping up with present and moving into the future.

Lawyers should try to predict based upon present events how their practice should be organized and even what areas of law they should be practicing. Futurist writers like Alvin Toffler, Faith Popcorn and John Naisbitt present their analysis of the future. Books like Gerald Clement’s ” Trend Tracking” discuss systems to identify and track trends.

Leveraging Your Advantages: Managers tend to focus on fixing up the weak spots of their organization — sending in their best people as trouble shooters. It is obviously important to work on problems but today where innovation and differentiation are so important, an organization should spend resources on its advantages. Those advantages will then seem even greater compared to the competition and will result in being more dominant in the market. This leveraging principle is especially relevant to the small law firm which must counter the advantages that a big firm has.

Marketing Principles

the four p’s of marketing — product, promotion, place and price: When lawyers think of marketing they first thing that comes into their minds is ” advertising” . Then one of those obnoxious U.S. lawyer ads is conjured up. Marketing is much much more. There are four elements in marketing — the 4 P’s — product, promotion, place and price. They are all important. A good marketing strategy will use them all and have the right mix of these elements. Technology can be used in all of the P’s.

Client Orientation: The client orientation principle should be self-evident for any business but historically it has not been for lawyers. Our hours of operation are generally like the old banker hours. We still congregate downtown where clients for many legal services despise going. Clients still get the impression that we are doing them a favour
by taking on their case. Our biggest faults however is not informing the client enough about what is going on and making decisions for the client that should not be made unilaterally by the lawyer. That is of course because we know better than the clients what is best for them.

Positioning: “Positioning” is a term coined by marketing gurus Al Reis and Jack Trout who have written a number of very good marketing books including the original “Positioning”, the recent “The New – Positioning” and the very readable “The 22 Laws of Marketing — Violate Them at Your Own Risk”. Their books like many marketing texts may scare a lawyer off because they seem to apply only to big business. Their examples may be from the world of big business but their relevance applies to small businesses including lawyers as well.

The main theory of “positioning” is that in our world today because of the overcommunicating that is taking place promotional messages must be simple. As stated in “The New Positioning” minds are limited, hate confusion, are insecure, resist change and can lose focus.

Left Brain / Right Brain / Whole Brain Marketing: In their recent excellent book “The New Maximarketing” writers Stan Rapp and Thomas L. Collins discuss the advertising theories of right brain and left brain advertising. Right brain advertising is much more creative and entertaining whereas left brain is more informative. Left brain products are unique, high involvement, intangible and high priced whereas right brain products are the opposite. The authors advocate a whole brain process which has the right mix of the two approaches. As providing legal services is definitely much more a left brain product it is important to ensure that right brain marketing activities do not overshadow left brain applications. This has particular importance when designing a World Wide Web site, a left brain medium also.

Demassification Of The Market: Demassification is a theory that originated with the futurist writer Alvin Toffler in his books “The Third Wave” and the more recent “Power Shift”. The theory is that basically rather than having a mass market place to produce for, and market to, there is now a trend to many ever changing smaller markets. Those markets require not mass production and mass marketing but customized production and niche marketing. The trend is intensifying with the major corporation offering many times more models of products than they once did. They simply must do so to stay competitive. With the ability to customize and to do it quickly the public now expects this more personal customization.

Evaluate / Research: Again, because of our lawyer culture that we are so intellectually superior, we do not make a habit of even doing the simplest evaluation of our marketing activities. How do we know if even the telephone book ad is worth doing or how our ad in a community paper is working if we do not do some simple evaluation? Instinct is not enough. How do lawyers know what clients think of their services or what they want in a lawyer without conducting even some basic research? This type of research is more complicated than evaluating an advertisement but still is within the capability of a solo lawyer or small law firm.

Patience and Persistence: Though we live in a world of instant gratification, lawyers must accept that harvesting the fruits of their marketing labour takes time. It also takes persistence. Many legal services are not needed immediately. Most prospective clients will not really notice an ad until they have seen it many times. Then they may wait months or even years to do something.

Sole Practitioner And Small Firm Advantages

The small firm or sole practitioner should actively use the benefits that it has over the large firm. Those benefits, based upon the other management principles presented, can be substantial.

A small firm, because of the fewer partners required for consensus, can act very quickly to be innovative and experimental. Larger firms tend to be much more conservative and will simply not be as innovative and experimental as small firm. The small flexible innovative firm can therefore stand out even more from the crowd.

A small firm or the sole practitioner can more easily create a more personable client oriented customized relationship. The small size of the firm alone gives the impression of being more personable. The small firm as opposed to the large firm, does not have to be located downtown. The smaller firm generally does not have to charge the large firm fees to pay for the expensive surroundings or so the senior partners can continue the life style they have grown accustom to.

Applications

The Product: There are three areas in which technology can be used to enhance legal services. Technology can be used to enhance the appearance of the physical products, it can be used to make the product easier to use and it can be used to make it a better product (obtain a better result).

Word processors and graphic programmes can make the letters, agreements and other paper products much more presentable. This can be done with a minimum of cost. My internal client survey shows that clients do not want expensive brochures and are satisfied with articles on plain photocopied paper. Based on feedback clients do like my innovative logo. Milton Zwicker has always recommended that lawyers give something tangible to the client. I have not gone as far as Milton’s plaques for clients but I do have my manuals and magnetic business cards.

Content is more important than style but style without excess and without overspending adds to the product. An attractive feature of Carswell’s Family Law Partner is the ease of printing out a case for factums and the clear composition of the material. Carswell’s has also adopted the practice of line numbering for easier reference.

Word processors have features that can make the products easier to use for clients. I use a generated table of contents for my separation agreements and am just starting on a generated index for them also. When I send out a draft will I use the line numbering feature so when clients phone back with a question they can easily refer (and always do) to the line number.

For the initial real estate appointment I have a Word Perfect table in which numbers can be inserted. I insert amount and the computer then calculates for a client what the total cost will be and how much money is needed for the closing. I then print it out the table. This work sheet is updated and used by my secretary also to see easily the exact amount of payment required just prior to closing. I also use a table for estate clients so that at the first consultation and throughout the administration the value of the estate is known.

Electronic mail is technology that enhances the product because it allows for easier and faster communication. I have been amazed by how many local clients prefer to use email rather than the phone. With the busy schedules of both client and lawyer it can be easier and faster. I have two overseas matrimonial clients where email has been invaluable and has reduced costs. Long distance charges are really minor expenses in the scheme of things but for some reason not to clients.

Technology can also be used to generate a better result therefore a better product. The obvious use is legal research but there are other many other products. The tax calculators in family law are invaluable as is the new insurance calculator for family law. I make it a regular habit of doing those tax calculations in front of my client or when they are on the phone so to show the client that I am using up to date technology. There are programmes that help develop negotiation strategy as well as programmes that promote creativity. The latter programmes could be used to produce some more innovative applications of technology for lawyers.

The World Wide Web Site: The topic of a web sites is being discussed in more detail in other seminars but I would like to discuss it briefly in the context of the management and marketing principles outlined in this paper.

The most important point is that legal services are a left brain activity and the web is also very left brain oriented. Therefore the graphics of a web site are really a very minor aspect of the site. Overuse of graphics can even be a major detriment to the web site as they may take so long to download that prospective visitors will move onto the next site. As the storage costs of having information, as opposed to graphics, are so cheap a web site can and should have as much information as possible. It should also be noted that some internet users do not even have the capability of seeing the graphics though their number will decrease over time.

A web site can be and should be innovative to stand out among the many other sites. I use some humour in my site as well as an interactive legal quiz and a survey contest to be innovative and different. As there are so relatively lawyer few web sites in existence, do not wait to put up one up — there are advantages of being one of the first sites — therefore a bias for speed and action. Try something completely different — experiment. It will be inexpensive to do so and easy to change.

A survey I recently conducted of lawyers with web sites show that few clients are coming to lawyers because of their site at this time (the same is true for most businesses on the web). But using web sites to find lawyers is relatively new and not everyone is on the web. The obvious trend is to have more people on the internet, if not at home then at work. Most lawyers in the survey believe that there is a future with web marketing and are there now just to start.

Even the few clients obtained because of the web site are better than no clients especially with the relatively lost cost of putting up a web site. Without over-taxing one’s resources the more marketing efforts the better.

As pointed out by Law Times columnist Alan Gahtan in his response to my survey, the web site allows a law firm to give a lot of detailed information about an individual lawyer. However many sites still have one paragraph biographies with a colour picture that takes time to download. I would suggest a very detailed biography like my two page resume on my web site. A web site (or at least email) gives a firm an opportunity to keep in touch easily with their previous clients.

Market Research: If one is going to start being innovative and experimental, research is necessary to produce the ideas and then evaluate the success of their implementation. It is quite simple to evaluate a promotional marketing activity — simply ask clients how they got your name. My secretaries cannot open a file unless, on the requisition to open the file form I have stated how the client came to me. My requisition form has codes for all the different ways clients can choose a lawyer. That code then goes into the Legal Pro billing system as a referring lawyer. My monthly and then yearly fees report states where my total billings comes from. From this information I have stopped advertising in certain publications and increased in others. I have also adjusted my marketing strategy based upon the results. If a client came as a referral, with the new client’s permission I send a thank-you letter.

Billing statistics, though the most important information to obtain, is not the only information a lawyer can and should obtain. Feedback from clients specifically on the marketing activities and the services provided can be very helpful. Clients should be encouraged to express marketing or management ideas. This information will simply not come forward on its own. It must be forced out of clients. That is why I have had for a few years my “Survey Contests”. Clients who fill out an extensive survey get their name entered into my contest to win free Wills and Powers of Attorney as well as baseball tickets to the Ottawa Lynx (I cannot afford NHL hockey tickets). There are two winners — one drawn at random and one chosen for the best suggestion. The contest has resulted in many entries and a few good ideas — including the push I needed to get on the Internet. The survey also accomplishes many other functions besides generating ideas and feedback. It shows innovation and client orientation. The survey allows a client to show appreciation and gives us unappreciated family lawyers a well deserved but generally missing positive feedback. A client preference questionnaire helps me to properly customize my services. The production of surveys can be made easier with computer programmes such as ” Survey Pro” which also tabulates results. Databases can also be used to tabulate results.

Data Base Marketing: Demassification has greatly encouraged the use of data base marketing both for prospective clients and previous clients (previous clients being ones who do not retain a lawyer on an ongoing basis as corporate or institutional clients do).

In “The New Maxi-Marketing” the authors suggest that a business collect a smaller number but a more appropriate group of clients to market to and then target that group more strenuously. That smaller group is obtained by focusing on public data bases by something as simple as local postal codes or buying relevant data bases from professional marketing companies and refining the data base even smaller. The authors also suggest something that I have done twice on an annual basis. First I have done some mass marketing in my community newspaper, telephone book and radio ad. That mass marketing has asked for a response — a request for further information in the form of my free Wills and Powers of Attorney packets. I then follow up on the many people who have not made appointments in November with my annual Wills and Powers of Attorney promotion. There is the school of thought that if prospects do not become clients within a short period of time they are lost forever. However I like the teachings of the salesman whose philosophy was that prospects should be followed up ” until they buy or they die”.

Distributing this follow up was made very simple last year as I recorded all requests for packets on a data base which then produced mailing labels for all those who had not become clients. The data base also produces a monthly report on how many prospects individual ads are producing so I can evaluate the ads not just by the fees generated but the possible future clients.

The most under-utilized aspect of data base marketing for lawyers is their previous clients data base. For some reason lawyers seem to write clients only when they are switching firms or when they are moving their premises though ongoing newsletters are becoming quite popular with the larger firms. I have instituted a more customized newsletter which is much more labour intensive but I hope will be more successful than the mass market newsletter. The newsletter will have sections of general interest to all clients but then certain sections will pertain only to that client. Those sections will deal with such a matters as updating a will, obtaining a divorce as the one year waiting period is up, obtaining powers of attorneys, being advised as to the cost of living index relevant to their agreement, being advised as to the new support guidelines and how it compares to their support payments, reminders about insurance and pension provisions of their agreement. As more and more clients obtain email, these types of newsletters will be cheaper to produce and distribute.

I have developed my own customized data base rather than use the Contact Management software or Legal Pro’s mailing list. I believe this will make it easier to produce the personalized newsletter. I also use that data base when a former client telephones so I can easily recall what I did for the client rather than pull a file from storage.

Conclusion

No one would argue that lawyers are doing a great job at marketing. The reasons for our poor performance are many. We have not had to market until recently and therefore do not have the experience. It is in our culture that management practices especially marketing is beneath us. We are snobs. We are conservative. We are naive. We think because we are relatively intelligent that we know it all. We are afraid of experimenting and failing. It is in our culture to go slowly and uphold the old methods.

Marketing is now a necessity for all lawyers. A firm can not survive on a few “rainmakers” any more. I believe that everyone in the firm must be involved in the marketing process (though an article in the latest ABA Law Office Management would disagree that not every lawyer has to be a rainmaker). Marketing can be done in such a way as to improve the quality of legal services. This can be done if there is an emphasis on improving the product, promoting in an informational way, locating in a convenient place and pricing appropriately.

Good marketing works. Billions of dollars are not spent by businesses each year on marketing because they like throwing away their money. However, as the famous quote goes — “I know I am wasting half my marketing budget, I just do not know which half”. Marketing applications must be properly constructed and then properly evaluated.

Marketing can also be a lot of fun for lawyers and a break from an otherwise very serious occupation. Technology can be and should be used to improve the marketing of legal services.

Try it — you’ll like it and it’s good for you.