Oregon State Bar Bulletin — APRIL 2005

Managing Your Practice
Why negative advertising fails
By Henry Dahut

When clients choose to take their business elsewhere, they often make it their mission to tell the world why. This can happen when there is a palpable inconsistency between what a firm says it stands for — for example, what it says in its promotional material — and how it actually runs its business. Sometimes a firm’s promotional material uses an emotional trigger — most often the potential client’s fear, which is usually born from the legal trouble they find themselves in. Other promotional campaigns appeal to a client’s greed and ego, and one can argue that both of those are also rooted in fear. While addressing clients’ emotional components makes sense, fear-based campaigns can drive clients away and set the wrong tone for establishing the attorney-client relationship — one that ideally should be based on a sense of trust and respect.

Campaigns that play on negative emotional triggers such as fear, greed and ego have dominated the legal landscape in recent years. Such campaigns are frequently backed by huge budgets and play to clients’ vulnerabilities. Each type of campaign is problematic in its own way. Campaigns focusing on fear disempower clients; appeals to greed obsess them; and catering to their egos creates in them a false sense of power. Rarely, if ever, are these approaches effective in the long run; they appear to work in the beginning, but quickly lose steam and crash.

Recognize Any of These Tag Lines?
Don’t lose your rights! Save your business!

You’ve seen such consumer-targeted ads on television and in the yellow pages, but fear-based campaigns are not always the work of small firms, nor is the audience made up solely of consumers. Such campaigns may be used at very big law firms and with very sophisticated clients.

One prominent national law firm (now bankrupt) spent tens of millions of dollars on a national television campaign directed at corporate America. The central message was: Retain our firm when the future of your business depends on it. At first glance, this campaign seemed fairly benign, yet the message was intended to generate fear for those in serious business trouble. Implicit in the ads was: If you don’t use our firm, you may not have a future. Not having a "future" implies being rendered nonexistent. That’s advertising talk for saying you’re dead, and no other fear is as powerful, motivating or pervasive—and Madison Avenue advertising firms know it.

It’s easy for such messages to backfire and make potential clients feel vulnerable, exploited and powerless. It’s rare that clients are benefited by having their fears and worries reinforced or amplified.

Instead, people — and businesses — in legal trouble want to know you have the information and resources that will be useful to them. They want to know: How bad is it? How bad can it get? What do I need to know? What should I expect? What are my options? What does your experience tell you I should do? Ad campaigns that let potential clients know you have the answers to these questions are more likely to succeed than those that play mostly to fear.

Greed-Based Campaigns
Don’t settle for less! Get what you deserve! We’re tough! We ’re aggressive!

It is said that greed is just another form of fear — the fear that there is not enough and will never be enough to feel truly satisfied and complete. In this sense, greed may also be viewed as a type of vulnerability.

Fear is a primordial emotion derived from our instinctive ability to perceive and respond to danger. This fight-or-flight instinct has been hardwired into our minds. Greed, on the other hand, is not entirely instinctual. It’s been said that greed is one of those miserable forms of ignorance that keeps us from knowing our highest potential.

Some lawyers lure clients with promises of large financial gain to play to the clients’ greed. While most lawyers stay within ethical bounds in this regard, some cross the line without even being aware of it. This is especially true in the area of personal injury.

While it has been argued that "fighting language" used in advertising demonstrates a lawyer’s zeal and unfettered advocacy style, it appears to the general public as self-serving rhetoric. Small type at the bottom of such lawyers’ ads disclaiming any implicit promise of specific results or recovery does not solve the problem.

Most professionals agree that advertising intended to appeal to a client’s greed is manipulative and insulting. It can unwittingly inflate a client’s expectations and erode a lawyer’s credibility. And in the end it does little to advance the image of our profession.

Ego-Based Campaigns
We handle only the very best clients — like you.

Traditionally, larger firms have relied on entertaining clients in hopes of getting more business. Unfortunately, lawyers who are more interested in strutting their legal feathers than listening to their clients can squander these valuable opportunities to learn about clients’ specific needs.

Breaking bread with a prospective client has been the hallmark of rainmaking, but as any skilled rainmaker will tell you, it must be done masterfully. Here is how one jaded rainmaker described the courting ritual:

First, it requires the right restaurant — preferably one that shows a flair for glamour. At the table, a drink before dinner is customary followed by a few war stories that demonstrate our firm’s courage and our relentless dedication to our clients. Then it’s time to drop a few names. We handle the very best clients. Ideally, the alcohol has entered the client’s bloodstream before I unleash a few of my better jokes.

The good humor is intended to lighten the mood and demonstrate wit, after which it’s time for a few well-rehearsed questions aimed specifically at the client’s legal matter. Bang! Bang! The client is taken totally by surprise. He fumbles his words. The moment becomes awkward. I listen intently. I nod with understanding — and, like the patient lad I am, I wait for the client to tell me a bit about his problems. And at just the right moment, I steer the conversation back to our firm and how we can help him out of that horrible mess he got himself into.

When the check comes, I always let it sit for a few moments. This shows patience. Then I pull out the firm’s Gold Card and pay for the meal. This shows generosity. If the restaurant permits, I might offer the client a cigar — a way of implicitly acknowledging our bond. And of course, the deal sealer, a small envelope bearing front-row tickets to the big game.

All of this, of course, is window dressing. Clients may engage in the courting process, but inside they frequently distrust it. They see it as condescending, manipulative and self-serving. They don’t believe the lawyer’s interest in them is sincere. They are more inclined to believe the lawyer views them as just another stream of billable hours.

Clients know when they are being romanced, and it can backfire in big ways. One partner shared this unfortunate experience, which happened while courting a rather large insurance company:

It was the eighties, and we were looking for more business from this one insurance company. We found out that one of their top claims people loved to go bird-shooting – doves to be exact — so we arranged a holiday hunting trip and invited some of the claims people as the firm’s guests.

It was early morning and we were sitting in a field of mud just waiting. When we heard the sudden flurry of the birds, one of our guns accidentally discharged, and some of the pellets ended up in the backside of one of the claims adjusters. Luckily, they dispersed well and he was not seriously hurt, but the trip ended rather abruptly. When the president of the insurance company found out about the incident, he was livid and reprimanded his people for accepting our invitation. We never did see another file from them.

Marketing of this kind is as stale and unproductive as yesterday’s three-martini lunch. What clients really want is to be listened to and respected.

Campaigns That Focus on Solutions
What clients really want is a lawyer who will help them make sense of their problem and figure out how to solve it—not scare them about what could happen, promise them a lucrative outcome, or tell them how valuable they are. To solve problems well, lawyers must hone their interpersonal communication skills and make them a priority equal to that of other lawyer skills. Law firms all too often balk at spending money on developing such skills in their lawyers, and law schools (for the most part) have missed the boat by failing to make such skills building a necessary part of a student’s curriculum. This is mostly because law schools view their roles as training young minds to be paper warriors.

Unless the client really opens up, and unless the lawyer really takes the time to understand, the lawyer will not truly know how to advise his or her client. Knowing the law is great, but clients really want to know how it pertains to them and how it will specifically affect their lives, which requires that the lawyer understand what’s important to them. The context of a client’s life situation must be considered and factored into our work if we are to be true problem solvers.

Context-based Marketing
Context is the full dimension of the life events and surrounding circumstances that gave rise to a client’s need to see a lawyer in the first place. Understanding the context of a client’s problem requires a broad understanding of clients and their circumstances.

Context-based marketing is a process in which service is defined and implemented within the context of the specific needs and desires of the client.

Lawyers are most useful when they help clients to uncover the full scope of their interests. Sometimes this requires that lawyers assist clients in separating the facts and logic of a problem from its emotional side. Proactively helping clients to discover the full range of their options can help them to identify possible solutions they would not previously have considered.

Lawyers often ignore their clients’ life concerns and focus solely on their legal questions. When this happens, lawyers miss an opportunity to build clients’ confidence and trust in the firm. Clients don’t expect us to fix all their problems, but they do want us to at least acknowledge their pain and understand their major concerns.

Suppose a client is seeking counsel because of a divorce. Most lawyers will see their scope of responsibility as falling within the legal task presented, to the exclusion of other client concerns that may be just as important to the client. A lawyer who takes the time to really listen will learn about the all-too-often-ignored logistical and emotional side of legal trouble. In cases of divorce, these may include the need to relocate quickly, to find a safe place to store valuable possessions, even the client’s escalating depression. All of these concerns are very real and sometimes as threatening as the legal trouble itself.

Lawyers who ignore such elements of the client’s life context lose a valuable opportunity to serve the client at a deeper, more personal level. It is when you become masterful at understanding your clients’ expectations that you are able to go beyond them — to perform the unexpected! When you do so, clients will not only remain loyal, but will also make sure that every piece of their legal work goes your way — and they will spend more time talking up your firm than most of your partners do!

Take a look at your firm’s promotional material. You may be surprised at what you find. Work toward building a service-based, solutions-driven marketing philosophy — one that emphasizes educating clients about their options — and become a full information resource beyond the four corners of your legal pad. In short, find out what your clients need and want, and then go out of your way to help them find it. In the end, one generous gesture can mean thousands of dollars more in new business and have more marketing impact than most ad campaigns can muster.

Henry Dahut sits on the executive committee of the State Bar of California Law Practice Management and Technology Section. His business and legal experience spans over 20 years, and he is the author of Marketing the Legal Mind –A Search for Leadership. For more information, visit his web site at www.HenryDahut.com, or write him at Henry@HenryDahut. com.

Henry Dahut sits on the executive committee of the State Bar of California Law Practice Management and Technology Section. His business and legal experience spans over 20 years, and he is the author of Marketing the Legal Mind–A Search for Leadership. For more information, visit his web site at www.HenryDahut.com, or write him at Henry@HenryDahut. com.

© 2005 Henry Dahut

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