Linking To Briefs To Develop Business

Why does it make sense to share briefs you've previously written with the outside world?

Most litigators prefer to conceal their work:

“We don’t give away copies of briefs we’ve written in the past! That’s our work product! If we give it away, then people won’t pay us for our ideas!”

Smart litigators gladly share what they’ve done:

“Here’s a brief we wrote last year in a case very similar to yours. We’d be happy to handle your case for you. Or, if you prefer not to retain us, you’re welcome to give our brief to the firm that you do hire. Maybe it’ll get their juices flowing.”

Why does it make sense to share? Because (if your brief is any good) sharing proves that you’re competent; without that evidence, you’re just another random lawyer flapping his lips about how great he is.

Don’t you have to worry about people stealing your work? No.

People will steal your work, of course, but you don’t have to worry about it. That’s the price you pay to prove your competence. You’ll have given the client the great brief that you wrote last year; he’s welcome to it. If the client wants the great brief that you’ll write next year, he’ll have to pay for it.

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But that choice is the client’s. The client was either impressed or not with your work; she’ll either hire you or she won’t. The quality of your work will speak both for itself and for you.

Firms are now coming to realize this.

Winston & Strawn, for example, recently launched its Appellate Brief Bank.

Those people must be nuts! They’re linking from their public website to briefs recently filed by their appellate lawyers. Other law firms will steal Winston & Strawn’s ideas! Clients will use the brief bank to do research and won’t retain the firm! How will Winston & Strawn survive?

Beats me.

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But a few of those briefs look pretty darned good.

I haven’t seen the stuff that you’ve written, but I suspect it doesn’t compare.

Who should I hire? You or them?

Winston & Strawn isn’t alone. Robbins Russell (a litigation boutique in D.C.) now gives it all away, too: The “advocacy” page of the firm’s website links not only to trial and appellate briefs that the firm’s lawyers have written, but also to audio recordings of the firm’s lawyers arguing appeals. Care to learn whether a firm is any good? You can either take it on faith (“I’m a great lawyer! Trust me; I say so!”) or you can actually read the firm’s work and listen to the lawyers in action.

In an earlier time, when briefs were not readily available online, the argument for concealing a firm’s work product was only mildly silly. Ten years ago, when firms hid their work product, firms were at least actually hiding their work product.

The times they have a-changed.

Today, many briefs are available online. (Here, for example, is the University of Wisconsin’s collection of briefs filed in Wisconsin. That’s just one of many sites giving briefs away for free. Anyone willing to pay for a service would have yet more briefs available instantly.) If someone is doing legal research, the person can find your old briefs and crib from them anyway. You’re really not protecting yourself by trying to conceal your work product, and you’re denying yourself a painless way to prove the quality of your work.

So why isn’t everyone doing this?

First, many lawyers are not very good. For many firms, making their briefs available to the public would constitute business destruction, not business development.

Second, client consent may be an issue. You should naturally confirm with clients that they don’t mind having briefs that you filed on their behalf made public. After all, the client paid you to write the stuff; the client has an interest in it. And, although the fact that you represented the client may theoretically be known to the public (because your name appears in a court file as counsel for the client), the client may not want to trumpet the fact that it was sued and required your services. It can’t hurt to ask the client’s consent before linking to the brief. If the client says no, you’re probably better off hearing that before, rather than after, you post the brief and offend the guy who’s paying the bills.

Finally, I’m certain that many lawyers still hear their inner-six-year-olds screaming: “It’s mine! I won’t give it away for free!”

Those folks should listen to their inner-six-year-olds.

Don’t just hide your briefs. Copyright ’em, for heaven’s sake! Don’t let people steal your work! Don’t let people read your work! Tell potential clients to take it on faith that you’re a great lawyer.

You probably are.

After all, your inner-six-year-old has a fine eye for business development; he probably does a helluva cross-examination, too.


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.