Berbay's Blog: Marketing for law firms, engineers, CPAs, architects and other professional services

I recently attended an Association of Business Trial Lawyers luncheon program called “Everything Trial Lawyers Need to Know About Appeals.” The program featured Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals; Justice Elizabeth A. Grimes of the California Court of Appeal, Second District, Division 8; and Miriam A. Vogel, a retired California Court of Appeal judge currently with Morrison & Foerster.  Here’s a summary of their worthwhile advice:

Save your breath. Chief Judge Kozinski advised attorneys to heed judges’ signals that they don’t need to continue arguing. He said if, during oral arguments, opposing counsel has finished speaking and a judge asks you if there’s anything in the brief that hasn’t been adequately addressed, they are signaling to you that you’re winning, and that you need say nothing more. Everybody, Judge Kozinski said, would appreciate avoiding an additional 15 minutes of you preaching to the choir. Along the same lines, Justice Grimes said that if a judge suggests you reserve your time for rebuttal, that too is a signal that you don’t have to say anything else.

Cite your sources. Judge Kozinski also recommended that attorneys bring written supporting material for anything they mention in oral arguments. He said he’s surprised by how often during oral arguments a judge asks a lawyer to provide the citation and the context, but the lawyer doesn’t have the information with them.

Know your audience. Miriam Vogel pointed out that in the state appellate system, you know which judges you’ll argue before, so you can and should gear your argument to them (In the federal appellate system, many seats are currently unfilled and other judges fill in, so you won’t know whom you’ll argue before.)

Don’t use abbr. Trial lawyers have their own shorthand—FAC for First Amended Complaint, for example. Don’t use those abbreviations in a brief, Vogel said: Judges don’t use them, they may not possess the same expertise you do and, as some judges have been on the bench for decades, the shorthand may have been different when they were practicing.

Spin a yarn. Attorneys should write briefs somewhat as if they were writing them for a general audience, Vogel said. After all, she noted, as readers of briefs, judges are more like laypeople than other attorneys: they aren’t familiar with the facts of the case and they’re generalists. Briefs should have a theme and tell a story (i.e., have a beginning, middle and end). They shouldn’t take the case’s facts for granted. In fact, Vogel suggested, brief writers should guard against this by having somebody unfamiliar with the case (a colleague, for instance, or even their partner) read the brief and explain back to them what the case is about. Using an engaging style and tone is important, Vogel said; the judges and their staff attorneys read briefs all day, so giving them something readable puts you ahead of the game.

Please answer the question. The program participants stressed that attorneys shouldn’t interrupt judges’ questions, and should answer queries immediately and directly. If you don’t have an answer right away, they said, it’s OK to be silent while you consider it. If you really don’t know the answer, don’t extemporize, fib or B.S.—just request to brief the point within a reasonable time period.

Listen up. The program participants also made the point that oral arguments, despite their name, are more important for listening than for talking. Speaking more than you need to in oral arguments just means giving yourself more chances to put your foot in your mouth. More importantly, when the judges speak to you, that’s the only time in the appellate process when information is flowing from the court to you, rather than the reverse. That information, then, is really valuable in strengthening your case, and you would benefit by paying careful attention to it.

An article that recently appeared in the Los Angeles Daily Journal, “Coming in out of the Cold: In-house Counsel Say Cold-Calling Is Not Always Best Sell for Firms,” had me re-reflecting on a professional services marketing truism: No marketing strategy is a “silver bullet.” Rather, most marketing strategies can be successful if they’re implemented well.

The article was a summary of a session at the Legal Marketing Technology Conference where a panel of general counsel discussed what is the best way for lawyers to approach them about getting work. Many lawyers “cold-call”—or, more accurately, send “cold letters”—to general counsel at companies whom they know are being sued. The letters typically introduce the attorney or firm and offer their services, touting their experience in the practice area in which the company is facing legal action. The question the general counsel were talking about was: Does that work?

One panel member said it doesn’t—or at least, he had never called a lawyer who sent him a cold letter. Other general counsel, however, said they had called cold-letter-senders—when the letters were executed well. For example, one general counsel said she had replied to cold letters that proposed alternative fee structures. Another said the letters that caught her attention included a thoughtful proposal about the particular litigation the company was facing.

Pitching a custom-made, if brief, legal strategy requires more effort than just sending a form letter. But reading these general counsel’s comments, it seems that’s what it takes.

The question isn’t, “Do cold letters work?”, it’s, “What kind of cold letters work?”

It’s not, “Is this a silver bullet?”, it’s, “How do I shoot this?”

In the last few blogs, I shared insights on working with in-house counsel based on advice provided by a panel of in-house counsel at a Los Angeles Intellectual Property Law Association meeting. The last blog covered the panel’s tips for getting your foot in the door with in-house counsel. And now that you have their attention, how do you get the work? Here’s what the panel had to say.

• Be willing to accept smaller matters to start, even loss leader projects. Do superior work and bigger assignments will follow.

• The first case you handle has to be in your sweet spot, so be realistic about what you’re selling. If you’re experienced in patent prosecution, don’t sell litigation. If your experience is limited to working with electrical engineering companies, don’t push chemical engineering work. In-house counsel won’t be happy if their internal clients report to them that you struggled with their engineering jargon in a deposition.

• Do what’s best for the client. Let’s say a current in-house counsel client asks if your firm can handle a real estate matter; however, your firm’s expertise is employment law, but you’ve just hired a senior associate who has some real estate experience,–be honest about it. If they need a real estate expert, tell them you’re just breaking into that field, but may not have the in-depth expertise they require. Refer them to another firm that has the necessary experience.

• Keep your retainer agreement simple. An overly complex one can be a barrier.

• Demonstrate that you’re cost-conscious by offering a discount, special fee arrangement, fee cap or volume discount. Be creative in your cost approach. For example, consider referring some of the documentation review work to a firm in a less expensive geographic location. Keep litigation costs down. A competitive fee structure may not get you the business, but not having it can lose you the business.

• Don’t commit to participating in a beauty contest unless you can “knock it out of the park.” If it’s worth your time, do it right. You don’t want to be remembered for your half-baked presentation. You can increase your chances of success by calling the prospect to ask questions beforehand. Five minutes of intelligence on what really matters to them can make all the difference. Besides, chances are you’ll be the only one who cares enough to call, so you’ll stand out.

• If you offer to conduct a complimentary in-house MCLE program, talk to the prospect beforehand and find out exactly what the staff needs to learn so you can tailor your presentation.

Click to read more about our marketing and public relations experience for intellectual property law firms.

For more information about the Los Angeles Intellectual Property Association click here.

To read the first post of this series, click here.

In the last few blogs, I shared insights on working with in-house counsel based on advice provided by a panel at a Los Angeles Intellectual Property Law Association meeting. In this blog, I’d like to switch gears and share some tips the panel offered for getting your foot in the door with in-house counsel. How do you meet these people in the first place, and how do you get their attention?

To read the first post of this series, click here.

• In-house counsel tends to be active in professional organizations and serve on civic, non-profit boards. Follow their example and you’re bound to meet them; however, equally important is to build a social network by doing things you like.

• Keep up with former colleagues at other firms. You never know who will take a job as in-house counsel or become a referral source for you after you’ve moved on.

• Since it’s risky for in-house counsel to bring in a new firm rather than simply calling the “old” one, they won’t hire you just because you send them a letter. They want certainty. So what can you do if you’re pitching your litigation services and they’ve never seen you in court? You could invite them to view your participation in a mock trial at the Trial Advocacy Project, marksman hearings or some similar venue where you can showcase your skills in action. Even if they don’t show up, at least your invitations will keep your name and expertise in front of them.

• A good way to get in-house counsel’s attention is to inform them immediately (within a half day) when you see a case filed against their organization. They may not be aware of it yet. Send them an email and explain how your expertise and experience relate to the case. State very specifically why they should consider hiring you. For example, don’t just say “I do IP work,” but refer to your experience handling matters involving the specific technology at issue, before a specific judge, etc. Don’t send a copy of the complaint.

• In-house counsel welcomes useful, actionable information. While an analysis of a recent court decision may be useful, it’s not something in-house counsel will keep around. Instead, send business-oriented intelligence they will save for future reference. One panel gave such an example that caught in-house counsel’s attention and that he’s kept: A listing of the costs of filing patents in each of five different countries.

• A merger or acquisition might be an opportunity for an entrée, so keep your eye out for them. In an effort to consolidate, the company may want to replace a larger law firm or one based elsewhere with what it sees as a more agile firm.

Once you have your foot in the door and are in front of in-house counsel, what does it take to get the work? That’s a whole other challenge, which will be the subject of the next blog.

Click to read more about our marketing and public relations experience for intellectual property law firms.

For more information about the Los Angeles Intellectual Property Association click here.

In the previous blogs, I shared insights on building productive relationships with in-house counsel based on advice provided by an in-house counsel panel at a Los Angeles Intellectual Property Law Association meeting. The panel also offered practice management tips specifically for associates who want to distinguish themselves in their work with in-house counsel so they can get ahead and make partner. Many of these points are good reminders for partners as well.

To read the first post of this series, click here.

• Exceed in-house counsel’s expectations. View every contact as an opportunity to distinguish yourself through your expertise and superior client service.

• Familiarize yourself with in-house counsel’s organization and the industry. Read the annual report. Know who the company’s customers are and why they are buying its products.

• Think beyond just meeting your own deadline. Remember that in-house counsel is working on several matters, not just yours. Like you, in-house counsel has multiple deadlines, so be sensitive to timing and do what you can to make their life easier.
• Always respond to emails and voicemails promptly. Getting back to in-house counsel quickly again and again builds the relationship. If you leave a voicemail asking in-house counsel to call you, be prepared for the call. Don’t ask them to give you a call any time and then be unprepared when they do. If you need time to prepare, tell them when you’ll be ready to talk.

• Take the lead and be in-house counsel’s point of contact, but know your limitations. For example, if you’re asked a question that exceeds your authority or expertise, let in-house counsel know you’ll have to check with a partner. Keep them informed of your progress in obtaining an answer.

The next blog will cover the advice the panel provided specifically for law firms and getting your foot in the door.

Click to read more about our marketing and public relations experience for intellectual property law firms.

For more information about the Los Angeles Intellectual Property Association click here.