Boutique Law Firms, In-House Counsel, Litigators, Small Law Firms

Inside Straight: Getting Business By Inventing Business

I recently had lunch with a guy who had worked at a law firm, gone in-house, and later returned to a law firm. (It’s actually more than that. This guy’s bio is: assistant U.S. attorney; associate at K&E; partner at Bartlit Beck; deputy general counsel at Bank One; and now at his own small firm. That’s called either “done it all” or “can’t hold a job.” Because this post will share with the world an idea that he proposed, I’ll credit him publicly: He’s Lenny Gail of Massey & Gail, a small shop based in Chicago and D.C.)

Lenny asked at lunch, as folks frequently do, what I’d learned about business development by having gone in-house. I answered honestly, as I occasionally do: When I was outside counsel, I always thought that business development was a game of chance. You tried a hundred different things, with no clue what might pay off, and then random chance struck and business arrived inexplicably, out of the blue.

As in-house counsel, my view hasn’t really changed: If you’re on our list of preferred counsel and we use you regularly, we’re likely to hire you again. If you’re a newcomer, there’s not much you can do or say to draw that first retention. Everything you say at our introductory meeting simply repeats what some other guy told us about his firm last week, and virtually nothing you’ve done is so breathtaking as to make you irresistible.

Lenny nodded, and we drifted back into our iced teas.

The real problem with getting retained is the first nibble. As outside counsel, once someone retained us for one case, it was a lock that they’d retain us for another. The client would come to know our people, our firm, the quality of our work, and the results we obtained. Parlaying one opportunity into many was easy; the hard part is getting the first chance. As in-house counsel, that continues to strike me as true for many (but not all) firms.

How do you get the first nibble?

Offer to do the first case (or the first six months of a case) at a deep discount or for free? Maybe, but law firm management won’t like that idea. And it might not work anyway. Maybe law is a Giffen good, and you’ll sell less of it if you lower the price. The client might think, “You’ll do a case for free? You’re retained!” But the client might also think, “You’re offering to do a case for free? You must be a truly awful lawyer!” Who’s to know?

Lenny nodded again, speared a tater tot, said that his view was about the same, and then posed a question: “Suppose I researched your business and a legal theory, and I called you up and asked for an hour of your time. I wanted to talk to you about a lawsuit that your company could file that would do your business some good. The lawsuit might recover money damages, or it might obtain a useful injunction against a competitor, or it might create some other business advantage. Would you talk to me about that and, if my idea made sense, would you hire me to pursue the case?”

This is a great idea. Having heard it, it strikes me as obvious, and I can’t believe I’d never thought of it before. I have only one excuse: I spent my career as outside counsel primarily as a defense lawyer, so I wasn’t in the business of thinking up lawsuits for the plaintiffs’ side. As in-house counsel, I would surely spend an hour listening to a lawyer who sounded rational by phone and told me that he saw some legal advantage that my client was overlooking. And, if the idea made sense, I’d almost surely hire the law firm that had ginned up the idea. After all, that firm had the creativity to unearth the concept, and the firm put in the time and effort to research the law and investigate our business. Come to me with that proposal, convince me, and I suspect I’ll hire you.

I asked Lenny what his experience was with this form of business development.

He said first that it’s a tough row to hoe. You have to learn an awful lot about a business, research the law, and generate an idea that a sophisticated business hasn’t independently considered. That’s a lot of groundwork for a speculative shot at new business.

And, Lenny said, the two times he’d tried this so far had both failed. Each of the two clients agreed to listen to his proposal. But the first client said it didn’t want to be that bellicose, and the second identified a subtle aspect of its business that made the proposed lawsuit untenable.

That’s 0 for 2, but I still think it’s a good idea for business development. It’s mighty tough for new outside counsel to land that first retention, and one way to get in the door would be to identify and research an opportunity that we’d overlooked. If you have any experience with this approach, please share in the comments. I’ll be all eyes.


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 (affiliate link).

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

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