Giving It Away (Or, Case Studies Of Business Development That Worked)

In-house columnist Mark Herrmann shares actual, real-world examples of how giving away ideas and work product to prospective clients can help you land business.

I’ve explained before why business development is tough. Among other things, everyone says they’re good; why should I believe you, in particular?

I’ve also suggested things you could do to develop business: Create a smart, useful, CLE class and offer to present it over lunch (and a cookie) at the office of a corporate client or prospect.

Gin up a new, clever idea, and explain to a client (or prospect) why you could help that client implement your idea efficiently and effectively.

I thought I was being a pretty helpful guy in those columns.

But what do I hear in response? Two things: First, “Herrmann, you idiot, you want me to give it away? Developing a smart, useful CLE course takes time and effort (for which I’m not compensated), and there’s no guarantee that the client will hire me. The client will probably just accept the CLE class and then go on with its life.”

And, second, “Herrmann, you idiot, you must provide specifics! It’s smug to sit back in your in-house catbird’s seat and say that business development is tough. Why don’t you give actual case studies of business development that has worked?”

Okay; you’re on.

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I am an idiot, and I do want you to give it away.

And here are actual, real-world examples of why that’s a good idea.

How did I personally develop business? I gave it away. As I’ve explained before (but it was years ago, so you may have forgotten), when I was a fourth-year associate, I published a law review article proposing a novel thesis on a relatively obscure procedural issue. That means I gave it away: I spent many nights and weekends writing an article on spec. I didn’t know if any journal would accept my piece for publication; if published, I didn’t know if the article would ever attract any business.

A journal accepted the piece. The partners at the small firm where I then worked were quite impressed that a mere associate had done something that most of the partners had not achieved over the course of an entire career. And I then got lucky (or luckier). A guy was sanctioned for misconduct related to what I’d written about, found my article, and retained me to handle his appeal. A couple of years later, the same guy was working on a (very large) case in an entirely different field, and decided that he could use more firepower, so he called me again.

Did I give it away? You bet I did. Did I get screwed because I had given it away? It depends how you define “getting screwed.” I surely ran the risk that a whole lot of effort would amount to nothing. And I don’t doubt that scores — maybe hundreds — of lawyers at other firms read my article, deployed my novel argument for the benefit of their clients, and never paid me a cent.

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It’s an outrage!

But that outrage is called business development. My firm received about $50,000 (in 1989 dollars) and an additional $1 million (in 1991 and 1992 dollars) as a result of my article. That was real money back then, and it was pretty good work for an associate.

I continued to give it away over time, writing four books, scores of articles, and a dozen law review articles, which collectively gave away to the world every thought I’d ever had. Most of those publications yielded no business, but the few that did put my kids through school and paid the mortgage. (I explained here how a strategy of speaking and writing created what grew over time into a $10 million practice for my firm.)

I gave it away. I must be nuts.

How about another case study of business development that actually worked?

I heard on the radio that Richard (“Dickie”) Scruggs — then a feared mass tort lawyer, and now an ex-con — had filed lawsuits against about 20 non-profit hospitals for allegedly having abused their tax status. This struck me as an opportunity: Scruggs was using the press to announce his onslaught, so clients would not yet have retained counsel. And it would take the right firm — one with non-profit tax, class action, MDL, and health care experience — to defend these cases intelligently.

So I gave it away: I tracked down copies of the complaints. I asked one litigation associate to draft a detailed outline of a motion to dismiss, and another an outline of a motion opposing class certification. I asked a tax partner to prepare a memo analyzing the tax issues. And I rummaged around within our firm to learn which of the non-profit hospitals we represented, which lawyers had the client relationships, and who had contacts with the non-client defendants.

I spent a non-billable day doing all that stuff, and another non-billable half-day putting the outlines into final form and assembling the materials into a cohesive whole.

Having invested all that time, I then gave it all away: I shipped the materials off to my partners with the client contacts, along with a draft cover note allowing the relationship lawyers to transmit the materials intelligently to the clients. The cover emails of course said that we’d be delighted to discuss with the clients whether it made sense for us to represent them in the cases. Going out on a limb, we also said that we anticipated representing multiple defendants in the cases and so could, with appropriate waivers in place, charge a blended rate of $300 per hour for work that we did inuring to the benefit of a single client, but only $100 per hour for our work that inured to the benefit of all of our clients collectively. (We explained that we didn’t yet know how many clients we would ultimately represent, but, if we represented four clients, we would be receiving a blended rate of $400 per hour for the collective work, so the fee deal would work to our mutual benefit.)

Many clients did not retain us. I gave it away, and they abused me! They took my detailed outlines, handed them over to other law firms, let those firms steal my work product, and never paid me a cent. I was screwed! It’s an outrage!

But a bunch of clients — something like six or eight — retained us. We took a slight hit on the $300 per hour we charged for individualized work, but we more than compensated by receiving a blended rate of $600 or $800 an hour for all of the collective work.

Because I was an idiot: I gave it away.

One last example: Every time — every time — a potential client sent me a copy of a complaint and asked to interview me about possibly representing the client, I gave it away. I’d spend every free second between the time I received the complaint and the day of the interview studying the complaint, analyzing publicly available facts, and doing legal research about the complaint. I’d then put together as comprehensive an analysis as I could about how I’d go about defending the case, including legal arguments, analyses of leading cases, and thoughts about factual avenues that might be worth pursuing. (In the words of one of my then-partners, “You don’t land business by being a nice guy; you land business by proving that you’re smarter than everyone else.”)

After committing my very best ideas to writing, I gave them away. Either before or during the meeting with the potential client, I gave the client the outline and explained that those were my thoughts.

Some of those potential clients, incredibly, didn’t hire me. They just stole my ideas and handed my thoughts to some other law firm. It’s an outrage! I was screwed!

But, more often than not, I won those representations. And there was simply no way that would have happened if I hadn’t spent a lot of uncompensated time thinking about the clients’ issues and then giving away my ideas.

Now, I sit in-house. I see some outside lawyers who give it all away: They prove that they’re smart, and they ask me to hire them.

And I see other lawyers who figure that business development means meeting me at a conference, handing me a business card, and later inviting me to lunch.

Who do you suppose we retain?

Lunches are cheap. Giving away lunches makes clients remember that you exist, but it doesn’t make clients think that you’re smart.

Business development is much harder than that. You must really give it all away. Give away your very best ideas. Give away your heart, your soul, and every scrap of ingenuity you can muster.

Most of the time, the world will screw you.

That’s life.

But you’ll occasionally get lucky.

That’s business development.


Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer 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 and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.