Nobody wants to talk about litigation at Lincoln’s funeral

I feel sorry for litigators!  It’s hard for you to know where the next dispute is going to come from. On top of that, nobody wants to talk to you! Clients don’t like to think about conflicts so tend to feel uncomfortable talking about them.

Are there ways of overcoming this and what should litigators do to market their practice? Here are approaches that I know work.

1.      Target sectors where companies have a lot of repeat litigation work.

The sectors that come to mind are bank lending, insurance, shipping and to a lesser extent construction. Once you’re in with a client in these sectors, the work stream should follow and be less ‘lumpy’ (ie chargeable hour levels going up and down). These clients might not always provide the sexiest cases – but the figures should be good, particularly if much of the paperwork can be handled by relatively low cost juniors or paralegals.

2.      How about talking about how to avoid disputes?

A classic marketing technique is to turn the issue around and use positive language. Don’t just talk about the problems – talk about the solutions. This approach lends itself to developing an advisory product, a bit like an audit, to help diagnose areas of risk where disputes might occur. By delivering this audit, litigators can start to get to know the client and start building a relationship. They might then be seen as a safe pair of hands when a dispute arises.

One law firm developed some software to help diagnose the risks of product liability claims arising from various manufacturing processes. Leading manufacturing clients were impressed and many good client relationships were initiated.

3.      Have an elevator pitch and don’t mention litigation

Americans introduced the concept of the elevator pitch (was it the challenge of having appropriate conversations with clients travelling up 43 floors in their Madison Avenue offices?). It’s a good discipline to be able to say what you do in 30 seconds or so.

So what should litigators say when asked what they do?  How about something like this:

“I help clients avoid disputes and when they arise I help resolve them as painlessly as possible”

4.      Have reasons why your service is different and potentially better than competitors

You might have some technical insights worth emphasizing which will give you credibility, such as:

• You know more about how to freeze assets/use Mareva injunctions/Anton Piller orders/protect IP rights
• You know how best to use expert witnesses in specific cases
• You have insights in issues that relate to other relevant jurisdictions

You might have legal processes that might impress clients, such as:

• Case management or document management systems that make the client’s life easier
• Use of legal process outsourcing (eg use of lawyers in India, Northern Ireland etc) to potentially make the legal costs lower
• The use of extranets to help communicate progress more conveniently to clients

5.      Market internally to your non-contentious, commercial partners

Litigation is an obvious product for cross selling. Your non-contentious partners might get advanced notice that a dispute is in the air. Indeed, they may have drafted the contract under question! So make friends internally and be seen as a safe pair of hands that isn’t going to spoil the relationship for your commercial partners.

This, in my view, is probably the best approach initial approach and many litigators don’t do this well enough.

Addendum

Following an exchange on this topic on the Managing Partner site on LinkedIn, Patrick McKenna offered the following additional thoughts:

• Proprietary Research / Thought Leadership
Fulbright & Jaworski (US) has for some nine years now compiled an annual published research report on “Litigation Trends” drawn from their survey of over 350 senior corporate counsel’s litigation experiences and expectations.

• Annual Retainer Program
Some firms have effectively marketed a flat-fee annual retainer program that allows the senior executives from a client company to access the lawyers in the firm on quickie matters that do not require extensive research. Those same firms have found that this initiative can have them at the forefront of potential conflict and dispute issues before they even go to litigation.

• Legal Autopsy
A number of progressive marketers now offer their clients a litigation post mortem – a no-charge review of why and how the crap-hit-the-fan to (1) help the client learn from the experience; (2) suggest preventative measures going forward; and (3) get access to the senior executives of the client company so as to be top-of-mind with future litigation matters.

• Emergency Response System
A number of firms market their emergency response systems with respect to particular areas of litigation. One firm that works extensively with the transportation industry focuses their initiative to coordinate a rapid response team of attorneys, investigators and experts in a five geographic areas to investigate and reconstruct accidents, evaluate exposure and either prevent or minimize claims

My thanks to Patrick for offering these good ideas. Patrick McKenna can be contacted at http://www.patrickmckenna.com