Biglaw, In-House Counsel

Inside Straight: The Incumbency Advantage

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Ed. note: This is the latest installment of Inside Straight, Above the Law’s new column for in-house counsel, written by Mark Herrmann.

Think for a minute about business development for law firms.

Your firm wants to expand its litigation presence in a particular practice area.

What do you do?

Many firms figure they’ll march out their superstars and knock a potential new client’s socks off.

The firm will look to its heavy-hitters, none of whom have ever tried a case in the field in which the target client does business, or given a talk or written an article in the relevant field, or given the subject a moment’s thought.

But the heavy-hitters will go into the conference room and explain that they are the world’s finest trial lawyers, they have great trial experience, and litigation is, after all, just a toolkit. A person who can try one case can try ’em all. Hire us.

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Will it work?

Not often.

The company has been defending cases against it (which naturally involve the company’s particular products or services) for decades. The company has relationships with many law firms, and scores of lawyers, going back years. The incumbent lawyers know the company’s products, processes, and personnel. The incumbents know the company’s general corporate policies and whom to call to answer questions. The in-house lawyers are comfortable with the incumbents, because the company weeded out the uncomfortable lawyers years ago.

Why change?

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Incumbents have a huge advantage, and outside firms often overlook that fact.

Moreover, even if the corporation wants to make a change, why should it change to you?

You say that your trial lawyers are great.

The firm that was in here last week said that its trial lawyers are great.

I see all of your lips moving, but who am I supposed to believe?

I know there’s a newspaper article that says that one of your lawyers is a star. But the guy in here last week had a press clipping, too. And he’s tried 150 cases to your 20. Or he’s tried 20 to your 150, but the stakes were higher in his 20, so he says those trials matter more.

From the inside perspective, the incumbent is the preferred choice.

The challengers are a distant second-best, and picking from among the challengers is basically a crap shoot.

Judging from most beauty contests, law firms underestimate those two things — the incumbency advantage, and the need for something tangible that actually sets your firm apart. If firms were to think harder about those subjects, they might be more satisfied with their business development efforts.

Mark Herrmann is the Vice President and Chief Counsel – Litigation at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law.

You can reach him by email at inhouse@abovethelaw.com.

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