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Inside Straight: Building A Practice -- A Case Study

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How do you build a practice for a law firm?

Everyone has a theory; I’ll provide a case study.

In 1997, Congress was about to pass a law that would have been great for America, but horrific for business at the law firm at which I then worked. The firm thus (intelligently) created several committees to try to create new practices that could keep lawyers busy if the promised bill became law. I was asked to chair the “drug and device product liability business development committee.”

At the time, my firm did essentially no pharmaceutical product liability work. I’d helped to defend a set of medical device cases, which was about as close as anyone had come to actual experience in the pharmaceutical products field, so I was the natural choice to lead this effort. When given that assignment, what do you do? How do you build a practice essentially from scratch?

Get famous. Make contact. Repeat. That’s all there is, and all there ever will be. But how do you do it?

First, how do you get famous?

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My little committee started a campaign of (1) writing articles, (2) giving talks, and (3) meeting folks in the drug products field. Publishing articles is easy: Journals are desperate for material, and if you have anything that resembles an idea, you can write it up and find a place for it in print. (Some lawyers set the bar even lower, self-publishing stuff in their law firm newsletters. I always preferred publishing articles in the real press first, and reproducing those articles in our firm’s vanity materials later, to show the world that our thoughts had originally passed some editorial review process.) After an article has appeared in print, send copies to clients and potential clients, so the world knows that you exist.

I figure details matter here, so you can decide whether you personally care to undertake this type of business development effort. I went back through a collection of old reprints, and these are the numbers: I wrote or co-authored three articles in 1998, seven in 1999, four in 2000, one in 2001, two in 2002, and five in 2003. I also co-authored a book, Statewide Coordinated Proceedings: State Court Analogues to the Federal MDL Process, in 2003, and then worked on the revised edition that came out in 2004. (I didn’t say this was easy. I said this was one way to develop a practice.)

When you write articles, don’t do it alone. Contact in-house lawyers, and explain that you’d like to co-author articles with them. That gives you a chance to impress an in-house person with the quality of your mind and written work, and it lets the two of you work together. That’s a good way to convince a potential client that you’re competent. So that’s a start on getting famous: Write articles.

Giving talks is also easy. If you write articles, people who sponsor seminars are likely to find your name and ask you to speak. Even if they don’t, CLE providers are always searching for people willing to assemble course materials and give a talk, so it’s easy to find a lectern and an audience. (Some law firms set the bar for talks lower, arranging in-house CLE programs, perhaps over lunch. That’s nice if it works, because that gives a bunch of your lawyers a chance to chat up potential clients in a small group setting. But in-house CLE is also a dicey proposition: It’s embarrassing to run a CLE class and have only a very few — two or three — clients attend. And in-house programs are relatively expensive to arrange and run. I generally preferred the other format: a CLE provider (or trade group, or whoever) would attract the audience and rent the space, and we’d then speak to the audience that the sponsor provided.)

Can I provide details here, as I did for the publications? I can’t reconstruct precisely how many talks I gave as part of the business development initiative, so I’ll estimate: I was probably giving four to six talks each year to fuel this effort.

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When you speak, don’t give your talks alone. If you’re invited to participate on a panel, tell the sponsor that you’ll find an in-house person to sit on the panel with you. Start making calls to find an in-house person interested in the opportunity. (Even if people decline the opportunity, they’ll be flattered that you asked, and you’ll have made contact.) Tell the in-house person that you’ll prepare all the course materials and you’ll distribute an outline of the presentation a week before the date of the talk. That makes the in-house person’s life easy, and it again gives you a chance to impress a potential client with your competence. That’s the second piece of getting famous: Give talks.

That covers getting famous. What about making contact?

Meeting potential clients is a hard part of this effort. Ask your colleagues at your firm to do some cross-selling (or, at a minimum, cross-introducing) for you. Have your partners who do transactional, intellectual property, or tax work for drug clients introduce you to the in-house product liability folks. Depending on your firm, this type of cross-selling may or may not be possible. If your partners hoard clients, they may not want to introduce you to their client contacts. On the other hand, if your firm manages to convince its lawyers to work for the common good, cross-selling should be relatively easy.

The members of my little drug and device committee were not uniformly industrious. Some folks refused ever to write an article or give a talk, preferring instead to bill time and, they thought, be rewarded for what counts. (That’s not a crazy choice in many law firms. Firms seem to under-appreciate business development efforts and over-appreciate business development successes, not realizing that one often leads to the other.) Other members of the committee played along for a while, giving a talk or writing an article here or there. By the time three years had passed and our efforts had come to naught, however, everyone on the committee had basically given up. We stopped meeting regularly, and I alone continued writing, speaking, and meeting through the years.

I wasn’t actually doing any legal work in this field, mind you. I was doing other types of product liability cases and mass torts, but I wasn’t representing anyone in the pharmaceutical industry. I was just talking the talk. In a sense, my prolonged bluff was remarkable. Folks attending various conferences told me that I must have “a huge pharmaceutical product liability practice, because I see you speaking at all these conferences, and your name is everywhere.” The sad truth was that, despite our massive efforts, we still had essentially no business in this area.

Our first nibble came in late 2004. (If you haven’t done the mental arithmetic, that’s seven full years — seven years! — of effort, with no payoff whatsoever, before we finally managed to convince a client to retain us in this field.) That first retention was plainly tied to the business development initiative, because a person who I’d (1) known for years, (2) spoken with on panels, and (3) co-authored articles with called to say that we’d be invited to participate in an RFP. We landed that RFP — “we’ll take a chance on you guys, even though you don’t seem to have much experience in the pharmaceutical world” — and finally started laboring in our chosen field.

In 2007, our pharmaceutical product liability practice was worth eight figures to the firm. The publications that rank law firms proclaimed us to have one of the country’s leading pharmaceutical product liability practices (which may have in fact been true by then). What should my reaction have been — “Eureka!” or “Thank God”?

Where do you go from there?

Push harder, of course. Rather than mail reprints of articles to potential clients, I decided to invite potential clients to visit my writings. I figured this would avoid burdening uninterested recipients with unnecessary stuff, and I could establish an on-going relationship with more readers. I teamed up with a lawyer at Dechert and launched the Drug and Device Law Blog.

Why did I reach outside my own firm for a co-blogger? First, I knew from personal experience how hard it was to convince lawyers to write even one article per year as part of a business development initiative. I was about to ask (and rely on) someone to write one or two articles per week. This takes a very special brand of insanity, and I knew (from having worked with him in the past) that Jim Beck was my kind of lunatic. Second, Jim’s firm had a longstanding drug products practice, and Jim had many contacts in the field, so Jim would be well-placed to let the world know that the blog existed. Finally, I anticipated that Jim and I would be writing many words, and we were thus likely to inadvertently write something that we later regretted. If the blog was hosted by two different people at two different firms, each firm had plausible deniability: It was always possible that the other guy was responsible for any post that came back to bite us.

We published one (real, substantive) post on the blog every weekday. When we started the blog, in late 2006, we were writing largely for ourselves, our parents, and a couple of other readers. But perseverance pays off. Within three years, we were drawing 30,000 to 40,000 pageviews per month. (I’ve posted previously about the costs and benefits of blogging. It was hard to trace any substantial business directly to the blog alone, but the blog did dramatically raise the profiles of the two of us who were feeding that unforgiving beast.) We had finally gotten “famous,” in the sense of being relatively well-known to the people who retain lawyers in our specialized field.

In 2009, Oxford University Press contacted my co-blogger and me about writing a book on the defense of drug and device cases. Jim declined (because he’d already written a book on the subject); I accepted. My plan at the time was to use that book as yet another selling point, sending free copies to clients and potential clients and leveraging the book into opportunities to give CLE presentations in-house at drug companies and thus to make more contacts.

Sadly, there’s many a slip ‘twixt the cup and the lip. At year-end 2009, I went in-house, leaving behind the defense of drug and device cases and getting no compensation (other than a feeling of pride) when I finally held the book in my hands two years later.

I’m now out of the business of promoting a law practice. Because I’m no longer playing the game, however, I can be (and have been, in this post) brutally honest about the costs and benefits. The costs? A ton of time and effort, spanning many years, which many (silly) law firms will view as nonproductive. And the firm may ultimately be proven correct. For all your efforts, your business development initiative may not work.

The benefits? If you keep at it for longer than you’d care to admit, and if you get lucky, you can build, largely out of whole cloth, the practice that you’d like to have. Although I’ve discussed in this column only my own personal case study, the fundamentals of building a practice in any field are the same: Get famous; make contact; repeat.

Am I proud of what I did? Sure. (I’ve now re-read the column I just typed, and I fear that I haven’t concealed my pride particularly well. So be it: I worked awfully hard, for an awfully long time, at fairly significant personal and professional sacrifice, to try to achieve something. And it worked. What can I say? I’m proud.)

Why did I choose to give it up and move in-house? Once every 25 years, you should try something completely new. It’s good for the soul. Life can surprise you.

Would I consider going back? When I started writing this post, I would have said no. But now I’ve gotten myself all worked up reflecting back on the excitement of it all. (Somehow, the good memories linger on, while the memories of the slings and arrows fade away.) Would I go back? Who knows? Life can surprise you.

I’m not sure whether this column will encourage or discourage people from trying to build a practice. The process for building a practice (if your firm doesn’t have one or is unwilling to bequeath one to you) is obvious: Get famous; make contact. The main question is whether, for you personally, the game is worth the candle. On that score, I’m afraid I have no insight.

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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