THE MARCUS PERSPECTIVE

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.

PARTNERSHIP IS FOREVER, SORT OF

The Rash Of Fired Partners

            A recent Wall Street Journal article, headed Partnership Isn’t Tenured, noted that in the past few years, large numbers of partners have been fired . Not because they were lousy lawyers, but because they weren’t revenue producers.

            The funny thing is that if you asked a lawyer about the practice of law, you get every kind of answer about professionalism, public service and the like. But apparently revenue, unspoken as it may be in public, still reigns. That’s funny, because as Peter Drucker pointed out, the purpose of every business entity is to get and keep a customer (read client). The product you produce, or the service you perform, is how you fill the channels opened by marketing. If lawyers – and accountants, too – recognized that, they’d have more successful firms.

            Many years ago, when I was young and callow, I attended a retreat for the Big Eight firm I was working for. They were throwing a tribute to a bunch of partners they were firing, in kind of a Norse burial ceremony where they send the body out to sea in a small skiff and set fire to it. Makes a great flame, but not enough light to read by from the shore. I asked one of the smarter partners – the still esteemed Don Aronson – why they hired these guys in the first place, and then made them partners. He explained to me that they were made partners during business booms, when they needed partners to deal with the burst of new work that was coming in then.

            No more naiveté after that for me. I realized that law and accounting are businesses – until you ask the lawyers and accountants to run their firms like a business, instead of like a bunch of intellectual elitists. Even now, with all the growth of professional firms and all the increased competition, they tend to seek profitability by either demanding more revenue from each partner, or by merging.

            Cost cutting for increasing profitability by firing less revenue-productive partners is the hard way, in part because they’re throwing out skills that may ultimately serve the firm. It’s kind of like the old Russian fairy tale about the family in a sled being chased through the snow by wolves. They fended off the wolves by throwing a child or two off the back of the sled to slow the wolves down.

            Appropriate cost cutting is good, in its place. But learning how to market is better. It not only increases revenue, but it serves the clients better. And you get to keep the good ones by teaching them how to market. But that’s the business way. Unfortunately, there is little tradition in law or accounting firms for that kind of thinking. It exists in some firms, but not in enough firms.

EVERYTHING OLD IS NEW AGAIN

Offering The Media Your Expertise

There must be some pretty smart marketing people at Perkins Coie. They took a standard marketing technique and made it work for them, and then managed to get the legal press all agog  about their success at it. Two bites of the apple where most people get either one or none. That’s professional public relations at work.

What they did was latch on to the high profile litigation of another firm another firm, by offering the local press their services in clarifying the legal points of the case. The press, apparently, accepted eagerly. An admirable job. Moreover, the device was eagerly covered by the legal press. Kudos to them.

It is indeed admirable, if not exactly new. Being a source for the local  -- or even the national – press is much desired by marketing folk. But although public relations people have been doing it for at least 50 years that I know of  -- we were doing it at Ruder & Finn when I was there in the early 1950s -- and I did it for a client just a few months ago --  very few public relations people seem to know how to do it. It’s not easy, but it’s not impossible.

First you should understand how journalists work. Obviously good journalists frequently need sources of expertise to give substance and accuracy to their reporting. Most journalists have a stable of such experts in their Rolodexes. These are specialists they know they can trust and rely upon to give them the right answers, and more particularly, good sound bytes. It’s on those Rolodexes (classic or electronic) where the lawyers and accountants and financial experts  and scientists that are so often quoted are found. On  the broadcast media, that’s where the talking heads come from. To break into that Rolodex takes work and time, but it’s worth it.

There are several ways to do it. The simplest way is to write a letter or email, offering your expertise. The legendary Richard Weiner, one of the knowledgeable and successful public relations consultants in recent times, suggests that most media people now strongly prefer email.
“Two hints about email,” he says. “The subject line determines if it will be opened. It's the equivalent of a headline in a news release, but it must be short. Second, put the backgrounder, news release, or other item as part of the email and NOT as an attached file. Some media do not open unrequested files.”

If the story you’re writing about has a byline, than that’s the address. If it doesn’t, call the newsroom and see who’s covering the story. An alternative is to simply address it to the news desk. It should be a personal letter, not a press release, and should be written in almost conversational tone. But that letter should contain a sample. An interpretation of a new law or regulation. A clarification of legal or accounting points in an ongoing story. It should be clear, straightforward, and obviously useful. It should have a journalist’s sense of urgency and value.

The letter itself should, if possible, lead off with the news bit, then go into who you are and the nature of your expertise, and then comes the offer of availability.

Now… they may or may not use it. Don’t worry, and keep sending similar letters or emails as the circumstances arise. Eventually, the journalist will come to know and trust you, and then you’re in.  Understand that unless you’re very lucky, it will take time and several letters before you’re a trusted expert. Do not, by the way, follow up with a phone call – unless it’s to add something to your letter. Most journalists are too busy to chat – your letter will do it and a phone follow up just to see if the journalist got it will just be an annoyance and counterproductive. The journalist, unless he or she has long covered your beat, is probably not qualified to know who’s trustworthy and who isn’t, which is why it can take time. But believe me  -- ultimately, it works.

In some communities, and with some publications, you may be able to reach   a particular journalist by phone. Deal with it in the same way as in the letter.

It’s important to know, if possible, which reporters have your subject as a beat. Journalists on a beat generally know their subjects well, so your submission had better take that into consideration. The downside is that sometimes a journalist will know more about the subject than you do, which means you may have to do some homework. Google makes it easier than it once was. You can Google a journalist to find out what he or she has written on the subject in the past. A measure of journalistic sophistication works wonders.

In some cases, if you think you have a hot story, or an important piece of information on an ongoing story that’s too complex to put in a short letter, inviting the journalist to lunch sometimes works. But it better be a strong story. Today’s journalists don’t do that as often as they did in the old days. Serious journalists are harder to court, and certainly are rarely available until you’ve established your potential value to them by letter or phone. Email sometimes works, depending upon the journalist.

If you’re offering an exclusive to one journalist, say so, and mean it. Otherwise, multiple submissions, done judiciously, are acceptable.  An exclusive is better  in a community with several media outlets, if one of those outlets is significantly more important to you than the others. Besides, if one media outlet prints your material often enough, you’ll start getting calls from the others – a truly nice feeling.

Ignore the mythology. With a reverent bow to the old ink stained wretches, today’s journalists, in the few serious journals that are left, are smarter, better educated, and more serious than the old guys and gals. Generally, and with exceptions of course, don’t depend upon buying them with gifts and meals – it’s not in their Karma any more. They don’t need your lunch – they need the news.

As with any publicity, don’t expect that the quote is going to get you clients the next day. But the name recognition and your expertise will ultimately register, and serve you in being chosen  for consideration by prospects when they need legal services.

In the final analysis, getting to be a resident expert, or getting your client to be one, is worthwhile, but hard work. But who ever said that good public relations was easy?