THE MARCUS PERSPECTIVE

LOWERING THE BAR – LITERALLY – ON ADVERTISNG

Dirty Tricks Advertising Seeps Into The Legal Profession

            There was an ad in today’s Wall Street Journal that really disturbed me. So much so that, despite the fact that I’m in the middle of doing a comprehensive study of professional services advertising, I have to write about this now, because I think the premise of the ad is so egregious.

            It’s a quarter page ad with a thoughtful looking man – purportedly a prospective client -- looking pensive. (How do I know ? Because he’s stroking his chin..) The headline reads, “I need lawyers who are more concerned about managing my risks than their own.”

            The body of text reads, “If your lawyers seem more concerned about enumerating your options than helping you choose among them, you might wonder whose interests are really being served.”

            Now, as I mean to demonstrate in my forthcoming paper on advertising, most of it is pretty bad, and seems to have been written (with exceptions, of course) by agencies who haven’t the slightest idea about how the profession of law works.

            But this one looks like it was written by someone trained in political dirty tricks advertising.  Does the advertising law firm really thinks it has to insult the profession to make its point?  Does it really need to put down other lawyers, as if they were opposing candidates in an election campaign?

            I suppose the question of ethics may arise, but even before that is a question of professionalism and taste. I would be surprised if half the profession doesn’t feel sullied by this ad. I can’t wait to hear from the bar associations, who are quick to pick up on this kind of attack. I wonder, too, if prospective clients of this law firm might not be offended by thinking that all the firm has to offer is a put down of competitors.

            I think this ad – and I refuse to name the firm – sets law firm advertising, as fragile as it is  today – back considerably.

TAKE ONE SURVEY…

And Salt Lightly Before Believing

            There’s nothing like an election year to immerse ourselves in surveys. This, despite the fact that more often than not, they tell us less than we want to know, and even less than we should believe.

Everybody, it seems, wants to know the future, and it appears that the closest you can get to knowing the future is to accumulate a bunch of guesses. Great for a parlor game, but not much use for making important decisions. Everybody wants to know what other people are doing about important matters, which is a more valid reason for business surveys. Sometimes the survey informs business decision, and keeps a business from operating in the dark. Sometimes the results offer emotional salvation (According to the survey, I make more than the average of my profession)

            Surveys come in different forms, of course. There’s the big political survey that seeks to tell us where the voters stand on each candidate. There’s the advertising survey that seeks to tell us the efficacy of a new ad campaign, and there’s the brand name survey (“Have You ever heard of this product? What do you think of it?”). These are the kind of surveys mostly done by professional survey and market research companies.

            These companies are generally pretty good. They use sophisticated modeling techniques and computerized formulae to tell us (with a margin of error of 4 or 5 points either way) who’s going to win the next election and how high skirts are going to be next year. Highly scientific stuff – but, unfortunately not always right. When they’re wrong, they claim, often quite rightly, that the world moves faster, and opinions change faster, then they can survey. The problem is that they don’t usually claim it until after they’re proven wrong. Which is why  you have to take those surveys with a grain of salt.

            Then there are the attitude surveys (Why do customers (and clients) buy? What do you think of my service?). These are a problem, because too many people don’t really know what they think about a lot of things. (“I hired this firm because I needed a lawyer. But I chose this firm over that firm because …). Here’s where you get into trouble. The intellectual factors (I like their litigation track record) is only part of the answer. The other part is emotional (the managing partner reminded me of my father) is usually too Freudian to tell you much you can use in a business context. That survey requires a box of salt. 

            Then there are the localized, one firm, internally done surveys of client satisfaction. These must be taken with a box car of salt. Or as one respondent said, “If I didn’t think I was getting my money’s worth I’d have fired you.” These are too often done by marketing people with little sense of the science of surveys. The results are mostly useless.  Surveys like these are popular marketing devices, and not just the push-pulls, which load the questions to favor the sponsors’ products or services. Some surveys are reasonably accurate, but too often they’re the lazy marketer’s way to avoid original thinking. If you really want to know what your clients think of you, hire a professional who will sit down with clients for an intensive one on one discussion. Then you’re most likely to get substantive information.

            Probably the most difficult aspects of surveys are that too many people are not always objective in the answers they give. Many reasons for that – they don’t really know how they feel, they don’t want to appear unqualified to answer, they have their own agenda, they don’t always know the real reasons they do things and so forth. Many surveys delve into areas in which the answers are so rooted in the subconscious that the spoken response bears no resemblance to the hidden response.  Look back on your own choices in buying services. Are your reasons always the right ones? Do you really believe your brand of tomato juice is better than the other brands, or is it just that it’s the brand your mother bought? Clearly, the most suspect surveys are those that try to fathom the depth of motivations. We don’t always know why we do things, but we’ll answer those questions anyway.

Now, I grant you that surveys, even the home grown ones, are not universally bad. Some surveys are thoughtful and useful, with answers you can reasonably rely on. But most of them should be taken with a grain of salt, and using that grain of salt can be an art in itself.

            If you read the results of a survey just for a general idea of how people think about a subject, the inaccuracy of the results doesn’t really matter. But if you make decisions based on the results, then the survey had better be an accurate reflection of what the surveyed really think or did.   Those are the times when your intuition or experience supersedes even the most professional surveys.   

            Still, many surveys serve a purpose, if they’re taken with that famous grain of salt. Never, never, in judging a survey, abdicate your own intelligence, experience and intuition.

A survey may be useful if…

·        You understand the methodology. How was the survey done? Never trust a survey in which the methodology isn’t made clear. Written surveys are the most suspect, because too many valid respondents don’t bother, or don’t take it seriously. In-person responses that arise from intensive personal interviews by a trained professional interviewers are at the other end of the validity spectrum – the responses you can most trust.

·        If it’s a survey by a reputable publication or web site in which participants are invited to submit answers to a specific question.

·        If the respondents’ qualifications are strong. The best way to judge advertising, for example, is whether respondents are willing to make buying decisions based on it, or by name recognition. The worst way is on aesthetics, which only experienced professionals can judge with any reasonable validity.

·        If the sample is valid. It should be broad and based on the nature of respondents. For example managing partners know about partner compensation (but don’t always tell the truth, which is why you need a very broad sample).  They know about plans for the future, but sometimes hedge their responses for competitive reasons.

·        If the responses give you a valid sense of trend. A sample that’s too small is useless, regardless of responses. 

·        If you can trust the objectivity of the survey’s sponsor.

·        If you can trust the survey result sufficiently to use it in your own planning. 

·        And ultimately, if the survey has only a toe in the past  and two feet into the future.

In any endeavor, it’s invaluable to know what others think and what others are doing. But two things to keep in mind…

·        A survey, no matter how good or how well founded, isn’t gospel. It’s greatest value is as a guide to your own thinking and decision making. But it should never be more than one factor of many in your decision.

·        Your own experience, intelligence and intuition may be informed by a survey’s results, but the final decision should be yours.

Then the survey might be really useful.

IT’S THE GENES THAT DID IT

How Personality Differences On Wall Street May Have Contributed To The Current Economic Problems

            In a recent New York Times column, economist Paul Krugman suggested that bailing out the investment banking firms was one thing, but bailing out the individuals responsible for the current situation was yet another. He’s absolutely right. With all that’s been said in recent weeks about causes for the mortgage and other fiascos, very little has been said about the bankers themselves, beyond noting that it was bankers what done it. And oh yes, by the way -- a lot of them still got massive severance payments.

            Aha! In the several books I’ve written on investor relations, I noted that people not actually involved in Wall Street tend to lump all financial people in one category. They all deal with money and make more than most people, goes the popular opinion, ergo they must be smart. Not only is it not true – as someone once told me, money is dumb, it doesn’t care who it goes to. There are vast differences in levels of intelligence and personality types for those holding each of the broad variety of financial positions. It’s an old story, of course, that most clients of service industries don’t much understand what the bankers and the professionals really do to work their magic. They’re just interested in results.

            For example, differences may be found between, say, most stock brokers and most investment bankers. Each requires different skills and different personalities. And remember, there are dozens of different jobs in the financial field.

            But I’ve always found that there is a profound difference between the investment banker and the commercial banker. Over the years, I’ve done a great deal with both. And that difference, in both obvious and subtle ways, contributed and continues to contribute to the current economic problems.

            I observed, many years ago, that commercial bankers were apparently born with a risk-averse gene. So controlled were they by that risk averse gene that long after their world had changed, they were still insisting that they were dealing mostly with the depositors’ money. In fact, most of the money they had came from investment and lending income. When I wrote The Prudent Man, the first book on investing under ERISA, I learned that bankers had difficulty grasping the fact that ERISA was the first federal trust law (all other trust law was from the state), and certainly that ERISA was the first trust law that didn’t prescribe the specific instruments in which they were allowed to invest. It took a book, written with the help of about a dozen people, including several who had helped write the law, to explain the difference. In subsequent reporting on ERISA, I learned that for years afterwards, most commercial bankers still didn’t get it.

            In fact, in an article I wrote at the time for a pension fund magazine on preference between commercial banks and investment banks to manage pension funds, I quoted one pension fund manager as noting that, “Banks can’t turn around in the Atlantic ocean.”

            In 1933, in response to banks’ excesses, the SEC promulgated the Glass-Steagall Act, which prohibited commercial banks from functioning in the securities markets. But in the last quarter of the 20^th century, banks, envious of the kind of money that investment bankers were making, pushed hard against Glass-Steagall, and eventually overturned it. That’s when troubles began – and still persist. Commercial bankers thought differently about investment risk than did the investment bankers. Investment departments were established by the banks, only to find them failing. And not only because of the risk factor. The investment bankers were making more money than the bank managers were making. It was a fascinating exercise in envy.

            There were also the differences in the personalities of each group. Bankers are willing to make money more slowly than investment bankers. The investment bankers are more impatient, and their sense of urgency to seize what they perceive to be opportunity readily supersedes a sounder judgment of risk. I wrote back in the 1970s that the perspective of Wall Street ranged all the way from the opening bell of the Stock Exchange to the closing bell the same day. It took the commercial bankers a long time to catch on to how investment bankers work.

            Well, gradually the two groups have learned to accommodate to each other – but only to a limited degree. The lack of perspective allowed both groups to be blinded by greed and to ignore basic business principles. Thus, they didn’t see the danger and potential consequences of turning mortgages into investment instruments, and then granting low interest adjustable rate mortgages to people who could barely afford them. Naturally, they were so short sighted as to be unprepared for a potential rise in interest rates in the future on these promotional, adjustable rate below prime mortgages that were sold to high risk borrowers.

            Surely there’s a personality problem that allows supposedly savvy financial people to be so short sighted. If the commercial bankers contributed to this current crisis, it’s because they understand risk through some fantasy screen – they can see the future only in terms of the past, and still not understand it. The investment bankers, on the other hand, are so comfortable with risk that they’re blinded by the potential gain, and ignore the potential for loss. How else can we understand a Bear-Stearns decline into two bucks a share bankruptcy?

            There’s yet another consideration – or at least a question. In this era in which computers and other technology can quantify risk, how did Bear-Stearns, and possibly several other major investment firms, not see the risk in the mortgage business. If they couldn’t do the arithmetic on paper, they certainly had computers to do it for them. And particularly in the sub-prime business, which was in large degree a gamble on the future of interest rates?

            It’s scary, isn’t it, to know that we trust our money to these geniuses. Krugman is right. Get rid of these shortsighted, risk averse or risk inured financial wizards, and get some really smart people in there.

            Or as the famous philosopher, Yogi Berra, put it, “Ain’t nobody here knows how to play this game?

ARE THE GIANT FIRMS GOOD FOR US OR BAD FOR US?

            My friend (I’m proud to say) Bruce MacEwen (known as Adam Smith Esq.) (http://www.bmacewen.com/blog/archives/2007/08/deweyleboeuf_welcome_to_t.html), has a marvelous and insightful discussion on the meaning of the LeBoeuf-Dewey merger, now in advanced stages of discussion. A lawyer himself, and an economist, Bruce fully understands the rationale behind the merger, and explains it beautifully.

            His article, and the merger itself, focused my thinking on several questions that have nagged me for a long time. How are they going to run these mammoth law firms? What new management and governance structures will emerge? Will the cumbersome partnership structure evolve into a new form of governance for the big firms, and then filter down to the smaller firms? Where do the management skills come from? What do the mega-mergers portend for the smaller firms, and the solo practitioners? And of course, what’s the role of marketing, for both the giants and the smaller firms?

            I have never believed in prognostication – too many random variables – and it has long been shown that the media talking heads who make such confidence-laden predictions have a lousy track record. But I do believe that asking the right questions, based on history, can tell us a lot about possibilities and likelihoods.

            For example, we know that the best corporate leaders acquire their leadership skills by touching a lot of bases – and learning something at each one – on their way up from intern to CEO. Lawyers and accountants, even those with MBAs, learn a lot about lawyering and accounting on their way up, but very little about management. Where, then, comes the skill to manage the giant, thousand-plus lawyer firm? True, some managing partners are born leaders, and have great instincts for management, but what about the managing partner who got the job because he or she is a great rainmaker? It could be argued that the major international accounting firms have long been mammoths, but accounting is very different from law, and even there, few of the giant accounting firms have been well managed.

In the past, poor management and inadequate internal controls allowed rogue lawyers (and accountants as well, such as Arthur Andersen) to run amok and even wreck firms. Do the giants need new structures to sustain quality and integrity?

Is the traditional partnership structure a hindrance or an aid to managing the larger firm? If so, what will replace it? Many years ago, in one of my earliest books, I suggested that the growth of professional firms was ultimately going to require more capital than could be raised by a partnership, and that a way would have to be found to take law and accounting firms public. And isn’t that exactly what’s happening now? First one firm, then two, then three – and so on.

            What happens to the firm with, say, 40 or 50 lawyers? Can they compete against the giants? Yes, if they understand what’s changing the legal profession and respond accordingly. No, if they feel that what was good enough for the founder 50 years ago is still going to work for them in the future. Why? Because, historically in America, the WalMarts and the Home Depots ultimately drive out the mom and pop stores. There will always be, it may be argued, room for the smaller firm and the boutique. But I was there when the then-big Eight firms realized that there were only two ways to grow -- capture a Fortune 500 client from another Big Eight firm – or learn to service the smaller clients effectively and profitably. Thus began the small business practice, for which I wrote and ran many a marketing program They took a lot of business away from smaller firms. Can that history repeat itself? .

            Obviously, these mega-firms are not only changing the nature of the profession, but what forces are propelling the change? And how are those forces affecting the smaller firms? We are dealing with a dynamic – an urgent drive for motion, and the constantly changing relationship between professional firms and the clients they serve. It’s this dynamic that must be understood if a firm is to succeed in today’s market. It’s this dynamic that precludes prognostication, which is why I don’t make predictions.

            What’s more significant, and what goes to the big vs. small question, is the role of marketing. The giant firms, for the most part, now have large and powerful marketing operations, which is one way they got big in the first place, and which they need to compete against other giants. Many years ago, in the early days of marketing, I was asked what now seems to be a naïve question. “Is it necessary for us to start marketing?” Yes, I replied, because your competitors are now doing it. That’s even more true today. And in the big-firm little firm competition,l smart marketing is more important than ever before for the smaller firm.

            I suggest (not a prediction) that for the smaller firm to compete, it must ask some questions of its own…

• What skills do we need to protect our territory?
• Does our firm need to redefine itself to better address the needs of our market?
• What are the big firms doing to streamline their services, and therefore their ability to get and keep clients? (For example, professional marketing, client service teams, practice groups that are marketing oriented, value billing, etc.) Which of those practices can we adapt to our size?
• How sustainable is the traditional partnership structure in a new competitive environment?
• Where do we get the capital to grow?
• How well trained in management skills are our leaders?
• Are our marketing professionals really professional, or are they just party planners?
• And then, the question asked by such leaders as Peter Drucker, “What business are we really in, anyway.”

And the question for all – large or small – what do we understand of this new environment, in which change is dictated, as never before, by clients -- and how do we best structure to better serve the new clientele?

Who knows where this is going? Is the growth of the mega-firms aproduct of such client-related situations as globalization? Obviously, yes, at least to some degree. But is globalization fostered by the mega-firm, or the other way around?

If the mega-mergers tell us anything, they tell us that the legal – and accounting – professions are no longer just professions. They are businesses, and businesses that must be managed, and that must compete. The professions, like it or not, are in the throes of change. To ignore that reality is to risk being swallowed by those who do understand this new world.

BLAWGWORLD 2007

The Marcus Perspective, is included in a marvelous compendium of the 77 best blawgs – blogs for and by lawyers – now available online at http://www.technolawyer.com/r.asp?L11502&M1. Each blawg is represented by one posting. Check it out. Published by TechnoLawyer, it includes the TechnoLawyer Problem/Solution Guide. It’s a cross section of the blogs of some of the brightest minds – and best bloggers – in the blawgworld.

THEY LABORED LIKE LIONS AND PRODUCED A MOUSE

            At the recent ABA meeting, the wise heads that strive to preserve the virtue of the legal profession came up with a recommendation that law firms reject mandatory retirement programs, which are illegal in other industries.

What struck me was that they came up with the lesser solution to the greater problem, which, is, I think, the question of judging a lawyer’s capabilities by his or her age, rather than by capability. .

As a former young guy who is now one of those older guys, I can remember what I knew and could do as a younger man, and know now that I can still stay ahead of the curve, mentally as well as physically, as an older one. A stupid lawyer at 30 will be a stupid lawyer at 80. A smart lawyer at 30 will be a smarter one at 80 (which, I’ve been told, is the new 39).

Hey, ABA – you want to serve the profession?  Reexamine this whole age thing. In no trade, profession, or occupation can you reside in old paradigms. Maybe before the time of enlightened health concerns and exercise regimes,  under which a person over 65 was thought to have diminished physical and mental capacities, but not now.  I’ve been a fencer all my life, and won my share of medals – and I still do it. I even sometimes beat the guys I fence with every week, two of whom are former national champions and one of whom was an Olympic medal winner. And if you read this  blog and The Marcus Letter, as well as the myriad articles I still write, you can judge for yourself  whether or not I’ can still stay ahead of the curve. And I know a lot of lawyers, doctors, accountants, and others who are my age and older, and are still smarter and sharper than most people, including me.

If you want to talk about the old saw about making room for the younger folk as they come up the ranks, I suggest that it’s a specious argument. If your firm is growing, there’s lots of room. If it’s not growing, does it really matter about who stays and who goes?

Are law and accounting firms farmers, putting the old livestock out to pasture? Not likely. But using old views of people in today’s environment is not too bright either. Maybe the ABA (and probably the AICPA as well) need to reexamine the profession in light of today’s realities – current and future.  And then, at least, the mouse can roar.

THE BLACKLIST – IT CAN HAPPEN HERE

In the early 1950s, this country went through a crisis that seriously threatened the constitutional rights of American citizens as nothing had since our founding in 1776. It was the era of McCarthyism – a period of anti-Communist  fervor that did more damage to our Democracy than the Communists ever did. Subsequent investigations, and even the recent release of the files and records of the Communist Party of the USA, showed that while American Communists had ambitious dreams of conquering America from within, they completely overestimated their visions, and underestimated the strength and power of American Democracy. American Communists did virtually no damage other than sound and fury. This, however, was not true of the anti-communist zealotry that produced McCarthyism and that ultimate disgrace of our democracy – the blacklist of radio, motion picture and television writers and performers.

I write of this  for two reasons – the parallel we now face in fear-mongering as a political tool, which drove the anti-Communist hysteria, and the fact that I was there. As a young radio and television writer, and a member of the boards of directors of both the Radio Writers’ Guild and Television Writers of America, I was deeply immersed in the activities of the time. While I was personally appalled by what was happening, I was never seriously attacked because I had never been a Communist, nor, in fact, a communist sympathizer. I was, though – and still am – a proud supporter of fairness, Democracy, and the U.S. Constitution.

The story of the blacklist is beautifully – and objectively – chronicled in Shadow of Red: Communism and the Blacklist in Radio and Television, a new book by David Everitt, reviewed in full on The Marcus Letter. A fascinating story, meticulously told by Everitt, a noted author and journalist.

And why is this of significance to this blog and The Marcus Letter?  Because it concerns all Americans, and lawyers – the guardians of our constitution. Because it’s a lesson in mass communication and mass hysteria.  And most of all, it’s a warning about the use of fear-mongering as a political device. As Ed Murrow put it – see it now.

ACADEMIA STRIKES AGAIN – AND MISSES

            Calm down. Don’t panic – which you would clearly be entitled to do if the report on the study that supposedly (according to Advertising Age) raps Chief Marketing officers for having zero impact on sales frightens you.

            First, it just isn’t true. At least, in the legal and accounting professions, and probably elsewhere as well.  Never mind the academic conclusions of an obviously flawed study, the pragmatic experience that so many of us in professional services marketing (including me) have had shows that what we do works. Our programs do produce clients. And produce many other benefits as well.

            Second, I’d sooner trust the three-card Monte dealer than the marketing academic. With obvious exceptions, they are astigmatic observers of processes they rarely understand, except on an abstract theoretical level). And again, with exceptions, they have rarely had bottom line responsibility.  I once taught a course in professional services marketing in a major graduate business school. If memory serves me well, I was the only marketing faculty member who had ever worked in marketing for a company, and who had had bottom line responsibility. I was appalled at the chasm between their theoretical knowledge of the realities of marketing, and the practical aspects of it..  I’ve subsequently been appalled at the ignorance of marketing reality of many of the most prominent of the marketing academics, who speak from theory, not experience.  Just as appalling is the fact that many of them are retained by law and accounting firms as consultants. The blind leading the naive.  With no long held traditions of marketing by professionals, marketing knowledge isn’t always ingrained in the minds of even the best lawyers and accountants. Some very famous names in academic marketing are still using tired old clichés like the four “p’s”. In a parallel situation in Silicon Valley, my son Jonathan, who works for a major Silicon Valley company, described it by asking me, “If you had to hire a nuclear physicist, and ten resumes came across your desk, how would you know who to choose?”

            Third, this study, according to the report in Advertising Age, is so full of holes, so flawed, as to be useless. On top of which it’s based on manufacturing companies,  many of which suffered from such factors as missing market trends, or making poor quality products, or competition.  Marketing has worked magic, but doesn’t always work. For thousands of years civilization has felt the need for a hangman, but nobody has yet found a way to make the hangman loveable. If General Motors makes a poor quality car, in a passé styling, you can’t blame marketing if we buy Toyotas instead.  (True, marketing’s role is to understand the market, but if the company leaders don’t listen, you can’t blame the marketers – and that’s true in the professions as well.) There are so many more complex factors that affect sales and profitability than marketing that a study that seems designed more for the professors’ publish-or-perish protection than for genuine enlightenment is trash.

            And, reports Ad Age, the professors “…admit the study is limited because it focuses on financial-performance metrics, such as sales growth and profitability, and not on brand equity, and both [authors] were quick to offer caveats to the conclusion.”   That, it seems to me, is pretty slim reason to cavalierly distort the sometimes fragile relationship between marketers and the professionals we serve.

            What does this study mean to law and accounting firm marketers? Not a heck of a lot. I haven’t seen the full report yet, but the Ad Age coverage is pretty comprehensive. My judgment is that the study was superficial, didn’t consider such factors as the role of marketing in not only direct sales, but in those factors that contribute to sales (such as product or service improvement),  or indicate any understanding of the significant difference between marketing a product and marketing a professional service. This last seems to elude the academic world (see my dialogue with Professor Philip Kotler in The Marcus Report).

            And so marketers, and so managing partners, don’t panic. In the immortal words of Candide, having listened for so long to Professor Pangloss, “Come, let us cultivate our garden.”

            

THE CASE OF THE RIDICULOUS RULES IN A SUBLIME PROFESSION

            ‘Splain me something.

            In 2006, the New York State Bar Association asked for comments on proposed new regulations regarding lawyer advertising. They seemed particularly concerned about blogs, and the potential excesses of such as personal injury advertising. Shocking, yes, but no great surprise.

            For reasons I described in my letter to them, (scroll down on this blog), their reasoning was ludicrous.  And, I understand, they got many such letters.

            A few weeks ago, Northern District Court  Judge Frederick J. Scullin Jr. issued an injunction on enforcement of several provisions in the guidelines, which, unless a stay is obtained, eliminate several of the guidelines. A rational decision at the head of which might well be a slippery slope toward reason. The guidelines in question, said the judge, were unconstitutional.

            Significantly, the judge also noted that the state submitted no “statistical or anecdotal evidence of consumer problem with, or complaints about, misleading attorney advertising.”

            Some of the rules still are in force, but they are, in my opinion and as described in my letter, either redundant or just plain foolish. Moreover, I believe they show absolutely no knowledge of law firm marketing, or the value that marketing has to both the practice of law and the needs of the clientele.

            I am not a lawyer, although there are a few of us around who can read stuff like the U.S. Constitution, and legal decisions, like Bates v. State Bar of Arizona.  So…

             If  I, and many others like me (including many lawyers), knew at the outset that the new advertising rules, both in their proposal stage and in final form, were unconstitutional, why didn’t the wizards of the Bar Associations that promulgated or accepted those rules, not know it as well?

            In fact, many of us, particularly those of us who understand law firm (and accounting firm) marketing knew that these regulations were at least ridiculous, and at most onerous. You might want to look at the letter (few posts down) that I (among many others, writing in the same vein), sent to the New York State Bar.

            ‘Splain it to me. Please.

THE SILVER-TONGUED DEVIL AT THE BAR

There was a small article in The Wall Street Journal recently about John Desmarais  a patent litigator at Kirkland & Ellis, an international law firm. It seems that Desmarais keeps winning unwinable cases for his clients. His peers say that his success comes from his ability to simplify complex technical concepts for a jury.  Mr. Desmarais, whose undergraduate degree in chemical engineering helps him, he says, better understand the technical aspects of each case.

            This brings to mind a discussion I had with the head of a law firm client’s litigation group. I was editing the group’s page for the firm web site. The litigator wanted to talk about how articulate the firm’s litigators were in court.

            “In other words,” I said, “all good litigators are silver-tongued devils, and we’re just more silver-tongued than the others.”

            “Something like that,” he replied.

            “Nope,” sez I. “You can’t say that. First, it’s a claim you can’t prove. Second, the Canons of Ethics won’t let you. And if they did let you,  how does that distinguish you from other litigators?”

            “Why then do we win so many more than we lose?” he asked.

            “Because we are so meticulous in our preparation, and that’s where most cases are won,” I said. “And we can say that, because it’s true.”  And that, I’ll bet, is how Desmarais wins his cases.

            And so we did.

            There are a few lessons here. One is that so many lawyers have not yet learned to think like marketers, which is why they need professional marketers who do think like that.

            And second, most people, including lawyers, don’t always understand the source of their talent. It’s easy for Mr. Desmarais to say his success is built on his ability to simply for juries. But first, he has to simplify for himself – and that’s preparation.