Boutique Law Firms, Small Law Firms

From Biglaw to Boutique: Kissing Frogs

Tom Wallerstein

For attorneys starting their own firms, one of the more difficult things to learn is how much time to spend on a prospective client. Attorneys take various approaches. Some attorneys say, reasonably enough, I don’t work for free, and will do little more than quote their rates. Attorneys who employ mass marketing will offer a “free consultation,” but that generally amounts to little more than a way to encourage unsophisticated clients to call them as opposed to someone else.

If your business model depends on high volume of a particular type of case, it probably doesn’t make sense to devote too much effort to soliciting any one particular client. But if you are pursuing fewer, higher-stakes or more complex matters, then you very well could struggle with how to strike the proper balance….

There are a number of ways you might spend time on a prospective matter before you are hired. For example, you could analyze the issues and try to formulate potential strategic responses. You could conduct legal research and prepare summarizing memoranda. You could research not only the prospective client, but also the adversary, the adversary’s counsel, the judge, and the industry in general.

A client might send you background documents to review — e.g., the complaint and the underlying contract. Surely you should review those before meeting about a potentially lucrative engagement. In fact, if the client doesn’t volunteer them, I generally ask for those types of background documents in advance. But be careful what you ask for. I’ve had more than one prospect send me dozens and even hundreds of documents which would take many hours to properly review.

If you are inclined to do a lot of background work, you could then synthesize that into a formal presentation.

There are certainly good reasons to be wary about spending too much effort working up a potential case. Perhaps more than any other professionals, lawyers are acutely aware of the value of their time. Assuming you have the workload, time spent on a client pitch could be spent performing billable work for someone else.

Another potential downside of spending too much time working up a prospective case is that a client may just take all your hard work and then hire someone else to implement it. I’ve read about this happening in other industries, and I have experienced it first hand as well. I recall at least one example where my colleagues and I spent dozens of hours putting together a detailed roadmap for how the case might be litigated, only to have the client hire a competitor and request that they implement the strategy we had devised.

This certainly is frustrating, but you have to remember that succeeding in litigation involves far more than simply having a successful strategy. A poor trial attorney will not obtain good results at trial even if he is working from perfectly crafted witness examination outlines.

Even though the work is not billable, there are very good reasons for putting substantial work into your pitches. The more effort you put in, the more likely you are to succeed. A client will be impressed if you can show, in your very first meeting, that you thoroughly understand the issues and have already formulated a strategic response. Because many attorneys decline to do the unpaid work up front, those who do can really distinguish themselves.

Engaging in substantial pitch work also shows how thoughtful, diligent and hard working you will be if you are hired. Undertaking hard work prior to being hired is a concrete way of showing potential clients — not just telling them — what kind of attorney you are.

But even if the pitch does not land you the engagement, that doesn’t mean it was wasted effort. Every pitch you do amounts to live practice for the next one. Just as your deposition skills will improve with practice, so, too, will your pitches. Moreover, every pitch is an opportunity to establish a networking connection. If you handle it correctly, even someone who declines to hire you may remember you for a future engagement, or recommend you to others.

The key to the approach I am recommending is to focus on the clients and their problems, and not on you or your firm. Mark Herrmann is not the only in-house counsel who chafes when attorneys use his time to talk about themselves instead of the problems they are being considered to solve.

Of course, it is possible to overdo it, and spend too much time analyzing a case for someone who will never end up hiring you. Lawyers who do not have an abundance of other billable work, such as those who are just establishing their own practices, are especially prone to this mistake. Some clients have completely unrealistic expectations about what litigation will cost or what can be achieved. It makes little sense to spend hours working up a case for someone who has no intention or ability to pay your hourly rate.

And some prospects, in the guise of evaluating whether or not they should hire you, will unfairly press you for free advice. You have to remember, and remind those clients, that your legal analysis is one of the things they will be buying if they hire you. At some point you may have to tell a prospect that the questions they are asking are questions they need to pay for you to answer.

Moreover, even if the pitch is not preventing you from undertaking other billable work, it still imposes an opportunity cost of taking you away from other, potentially more fruitful, business development efforts.

Of course, doing substantial work in furtherance of a pitch is not billable if the client ends up not engaging you. And even if the prospect does become a client, they would be right to balk at being billed for work undertaken before they hired you.

It’s not hard to motivate yourself to pursue some particular business development strategy if that strategy pays immediate and obvious dividends. If you do the full-fledged pitch described above, and the client hires you for a significant matter, then you won’t have trouble justifying doing that work the next time. But if you do that work and it doesn’t succeed — and of course, it won’t always, or often — then inevitably you will question whether it was worth it.

Working up and engaging in pitches is not a get-rich-quick road to business development. There are times when you must fall, and there are times when you must live in doubt. You will spend countless hours with no obvious payoff. You will be rejected, and feel discouraged. You will question your investment of time and energy.

But this aspect of business development, like many others, is a numbers game. To mix some metaphors, you have to kiss a lot of frogs before you land the big fish. If done correctly, the pitch can be its own reward. And, eventually, kissing those frogs may allow your practice to leap ahead.


Tom Wallerstein lives in San Francisco and is a partner with Colt Wallerstein LLP, a Silicon Valley litigation boutique. The firm’s practice focuses on high tech trade secret, employment, and general complex-commercial litigation. He can be reached at tomwallerstein@coltwallerstein.com.

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