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By this declaration, litigators summarily reject the marketing and sales advice urged upon their transactional peers. This perception is based on the flawed belief that "litigation" is what your clients are buying, and what you're selling.

I'll acknowledge that there are some actual differences between litigation and transactions, not least of which is that litigation is most often reactive, i.e., the company is defending itself against legal action brought by another. That seems to be lawyers' primary basis for dismissing marketing and sales advice.

There are two flaws in this stance:

1. Litigation is uniquely reactive. In fact it's only one of many reactive purchases in the global economy. Here are just a few:

  • financial services
  • car rental and repair
  • electrical, plumbing and other household repairs
  • countless examples in healthcare

In each of these reactive circumstances, we seek the supplier with which we're familiar and that we associate with the problem we face, or that someone we trust and respect recommends for the same reasons.

So, how did we (or our referral source) acquire that familiarity, and come to associate a supplier with our problem? It's no accident. Usually, the supplier went to a fair amount of time, trouble and expense to capture our attention, communicate with us, associate themselves with specific issues, and repeat all that frequently enough for us to feel like we "know" them, at least in a specific context.

This is called "positioning," which is a component of marketing. Literally, you're positioned to be in the right spot (in the buyer's mind) when the time comes that they suddenly face the problem you solve and must do something quickly.

The confusion is due, at least in part, by lawyers' preference for misusing "marketing" as a palatable synonym for "selling." In that context, the argument that litigation is different makes sense since you can't proactively sell litigation any more than a dentist can proactively sell a root canal.

Marketing and selling are different activities, with different aims, requiring different skills. Once you clear that up, litigation is no different than the other services listed. You have to position yourself to come to mind so you can get found by the person for whom a solution need has arisen.

2. They're buying "Litigation." 

This is a big part of the disconnect, derived from the mistaken belief that your transactional peers are out proactively selling "corporate services," and you can't proactively sell litigation.

Nobody has ever bought sales training, or a root canal, or a new transmission, or litigation. Why would anyone want any of those things? What they're buying, respectively, is new clients, pain cessation, mobility, and in the case of corporate services or litigation, they're buying some business aim such as stopping someone from doing something, enabling themselves to do something, recovering losses, etc. In each instance, they're not buying what you do, but the impact of what you do.

Trying to sell any legal service, per se, is a well-dressed form of begging. You're trying to get the client to change their purchasing allocation to include you, presumably to the detriment of one or more incumbent lawyers. "Please give us some of your Employment work." (The only thing missing is the tin cup and baleful look.)

Litigation is no different than anything else. You can -- and must -- engage your market in a sustainable conversation about a problem that, unless they're outliers, they're reasonably likely to experience at some point. The key is "sustainable." People have short memories, and they're bombarded by thousands of marketing messages daily, so you can't expect to imprint yourself on their consciousness with a single article, speech, or blog post. To motivate them to include you in their world, you must continually have something to say that's relevant to their world. That's the only way you'll come to mind when it's time for them to hire someone like you.

Mike O'Horo

Do you feel like the time you spend at networking events is largely wasted? Stay tuned. Very shortly, we'll release a free eBook, "The Five Most Painful Networking Mistakes Lawyers Make."