As an attorney considers a business development program, there are many strategy options available. Selection of a strategy is critical since it will determine most of the specific marketing activities related to it. Just as a military general selects the strategy (say, to attack the enemy's left flank), many specific actions or tactics result from that strategy (such as creating new supply lines and relocating artillery). The importance of this strategic approach is as important for attorneys as it is for anyone involved with the delivery of goods or services to the marketplace. Some attorneys argue that law firms cannot effectively practice the type of marketing strategies that other businesses use to plot out the direction of their marketing campaigns. Further, they would say that this type of language and thinking would be even less applicable to an individual attorney, whether affiliated with a firm or a sole practitioner.
This article is not written to provide the point that attorneys need to develop marketing strategies identical to those of manufacturers of products. Rather, it explores some of these concepts as they apply to individuals. From them, attorneys may begin to think in terms of developing their own strategy for marketing.
Ries and Jack Trout, astute analysts of marketing strategies, have written the two hallmark books: Positioning: The Battle for Your Mind and, more recently. Marketing Warfare. They see marketing as serving the client but also a war with the competition over turf, or clients. Both books deal primarily with mass marketing consumer products, yet both books teach a great deal about business development strategies.
The works of Philip Kotler and Paul Bloom, who authored Marketing Professional Services and other books and articles, also illustrate some of the options available to individual attorneys. Through these materials, high ways to marketing success can be opened for the attorney to drive with ease rather than taking bumpy back roads.
The most likely success rate in terms of business development is incurred by the attorney who attempts only to maintain the status quo by providing the same service to the same clients. Since this is a close to effort-free strategy, why not adopt it? A four-component square illustrates this basic concept. The greatest amount of effort possible is assumed by the attorney who provides a new service (new to that attorney, at least) to an untried type of client. Clearly that attorney's efforts involve his or her own capabilities in providing service as well as understanding what this new client type needs.
An easy-to-understand assessment of how all effort pans out in terms of legal services and clients is demonstrated on an expanded version of the four- point grid, showing in the effort matrix, a 16-square grid. Eight elements combine in pairs to create unique situations. Four client-related elements combine individually with four practice-related elements to provide a client/practice combination. The four client-related elements are
The four practice-related elements are
- Current client type (lowest effort)
- Same client type (lower effort)
- New, but similar, client type (higher effort)
- Never-served, different client type (highest effort)
- Same service (lowest effort)
- Related service, same practice area (lower effort)
- Similar service, related practice area (higher effort)
- New practice area (highest effort)
Combinations of these elements provide 16 variations of effort potential. Imagine that the number for each listing represents a degree on an effort thermometer. Relatively effort free would be defined by number 1. High effort would be defined by number 16. Numbers 2 through 15 represent gradations between lowest-effort and highest-effort client-related, practice-related elements. Type of activity and effort required to accomplish is as follows:
- Current client type/same service (lowest effort)
- Same client type/same service (lower effort)
- New, but similar, client type/same service (low effort)
- Never-served, different client type/same service (moderate to low effort)
- Current client type/related service, same practice area (moderate effort)
- Same client type/related service, same practice area (moderate to me dium effort)
- New, but similar, client type/related service, same practice area (me dium to moderate effort)
- Never served, different client type/related service, same practice area (medium effort)
- Current client type/similar service, related practice area (medium effort)
- Same client type/similar service, related practice area (medium to probable effort)
- New, but similar, client type/similar service, related practice area (probable to medium effort)
- Never served, different client type/similar service, related practice area (probable effort)
- Current client type/new practice area (probable to high effort)
- Same client type/new practice area (high effort)
- New, but similar, client type/new practice area (higher effort)
- Never-served, different client type/new practice area (highest effort)
Should every attorney seek out the activities requiring the lowest effort and greatest likelihood of success? Not automatically. The decision to accept and even welcome hard work and a chance of failure depends on the individual involved. For some attorneys, one combination might require too much effort for their individual inclinations and therefore be unsuitable. For other attorneys, the same combination might not allow enough room for growth and development. Each attorney must outline his or her capabilities in a personal profile assess his or her existing practice and client base and then make an effort judgment.
The final judgment is based on the placement of the attorney's existing practice and desired practice within the 16-square effort grid. How much effort is involved with the attorney's current practice and clientele? How much effort will be involved in the desired practice and clientele? How many gradations are there between those two levels of effort? If the existing practice is a number 1, which is to say the lowest possible effort, and the attorney wants a practice and clientele in number 16, the highest possible effort, he or she should make gradual steps toward that goal. If the difference between the status quo and the desired status is only 1, 2 or even 5 gradations, the attorney can make a much more rapid change.
POSITIONING IN THE MARKETPLACE
One of the key points of "positioning" is that the first person to hold a position will have the very important advantage of being first and therefore being dominant. For example, the first attorney in a town to establish himself or herself as an environmental litigator will naturally be perceived as the best and most expert if he or she maintains position and does a good job. In the process of becoming so established, an attorney would presumably be quoted in news articles as the expert, would conduct continuing legal education (CLE) sessions, or would otherwise be recognized as a leader in the field. All of these are communications which will further reinforce the image of expertise.
Also by traditional means, that attorney would develop relationships with other attorneys which would result in referrals. So by all these methods and perhaps others as well, the attorney would be recognized as the leading environmental litigator in the area. That person may not necessarily be the most qualified or the most competent lawyer, but he or she would "own" the position in that market by virtue of first arrival. With the growth of that area of law, such a position would be enviable. If that person were reasonably successful in court or negotiations, their practice would be fairly rewarding, up to a point. From a strategic standpoint, the established environmental litigator has both the best and most difficult position—best by virtue of being first and therefore "owning" the position and most difficult because the dominant leader cannot attack the competition in an offensive stance but must be on the defense.
In this context, as with sports or warfare, defense means that one must be on guard to react to the moves and strategies of the competitor's offense. The defense's objective is to hold the position. At some point the work available would exceed the capacity of the leader to care for it. The attorney could allow some of the work to go to other attorneys and perhaps lose the leadership position or could pursue a marketing option called a "defensive offense."
THE LEADER'S DEFENSIVE OFFENSE
One of the few options open to leaders in a marketplace is to compete with themselves, or as Ries and Trout say, "attack yourself." This method is virtually the only way they can go on the offense. For example, the established attorney might set up a complete department focusing on environment tal litigation. In this manner, the leading attorney would in effect be attacking himself by using other attorneys in his or her own firm. Each attorney would naturally have slightly different techniques both technically and functionally; that is, each attorney in the department would not only use different methodologies for the legal aspects of a matter, but each likely would establish relationships with clients by a different manner. Through all of this, however, the first lawyer would still be perceived as the leader and in fact would probably strengthen his position by virtue of being the leader of a department.
What about other attorneys who want to take over the leader's position or "attack"? The key question for the others is: Where would the leader be vulnerable? The only likelihood for a successful offensive attack would be if the leader had an inherent weakness and other attorneys had enough strength to mount and sustain an attack against that weakness. Clearly it is a judgment call whether the leader has a secure hold on his clients, or turf, and whether the attackers could be successful in their challenge.
Another method to attack the market leader is to carry out a flanking move. For instance, a large firm, presumably with substantial resources, that wanted to take on the market leader could hire an environmental litigator. If they discovered a portion of the market unserved, such as residential property developers, then the firm's offense has a chance to succeed by quickly attack ing a weakness of the market leader versus going head to head. To assure successful achievement of their objective, the second firm should attack quietly and quickly because the surprise element will be important for them.
Coincidentally, since the second firm found that the residential developers were not well served in other practice areas, they could establish a department by client area and in fact own that turf outright! This "flanking move" in essence means that the second firm has broken off an unserved segment which the leader may not even miss! Of course, the second firm would now be the leader in that segment and potentially subject to other competitive moves against them.
A third approach is for a firm to take "guerilla action" against the market leader. This scenario is for small firms and even sole practitioners who have been watching the growth in a certain practice area. Using the example of environmental litigation again, many attorneys are in a position where they understand that virtually every sale of land represents a potential client matter. At the same time, that attorney does not think they have the resources to compete with either of the existing firms in the market. What's left for them to do?
Most attorneys can then adopt a guerilla strategy rather than trying to take on the leaders in a frontal attack or even a flanking move. They should target and hit small segments that are left unprotected. Perhaps no single target represents a significant segment, yet several together could well support a small practice. For example, the suburban developers may not be well served. The environmental issues of the suburban developer's real estate transactions are being handled by a downtown law firm that may be expensive and hard to access. The action then for sole practitioners and small firms already located nearby is to establish expertise and credibility in environmental litigation. By doing this, they can hope more easily to capture enough turf, or clients, to generate sufficient fees to be profitable in that area of law.
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