INTRODUCTION

The purpose of this article is to discuss (1) why lawyers should provide innovative and different legal services from other lawyers; (2) how lawyers can go about being different and innovative; (3) some practical examples of being innovative and different in a law practice; (4) how lawyers can promote their differences and innovations. As this is a very large subject matter some basic theories and a few examples will be discussed rather than going into minute detail, but sources to obtain further information will be provided.

Why Use Innovation and Differentiation

To Survive

Some management consultants would say that being innovative and different is needed not just to thrive, but actually to survive. Their book titles say it all - Marketing Guru, Jack Trout, the best selling author of such books as “Positioning: The Battle of Your Mind” and “The 22 Immutable Laws of Marketing” also wrote the book entitled “Differentiate or Die”. Canadian consultant, Matthew J. Kiernan, wrote “Get Innovative or Get Dead”.

The main reason to be innovative and different is simply that doing so will produce more business and ensure survival. There are probably no recorded cases of lawyers whose hearts actually stopped from not differentiating or being innovative but maybe their practice did die though the official cause of death was recorded simply as “lack of business”.

Competition for business has increased and clients have changed. There are more lawyers competing for business. Lawyers are even now competing in some cases with lawyers offshore as far away as India. Perhaps a bigger threat of competition is not from other lawyers, but from other businesses. In the area of estate law, for example, banks and funeral homes are doing work that lawyers do at little or no cost to the client. Funeral homes are helping people apply for their insurance and benefits and banks are helping with estate accounting and getting releases from beneficiaries.

Today’s consumer of legal services has changed quite dramatically. In the March, 2006 edition of the Canadian Bar Associations “National” magazine, Janice Mickalo wrote an article entitled “Commoditization”. She points out that clients are buying legal services like any other consumer product. They are shopping around a lot. With the internet, clients have the opportunity to find out more about a lawyer and a law firm, the fees that are charged and the services provided. They are not just asking a few close friends for referrals. Some clients do not mind doing some of the work themselves in exchange for lower costs. Consumers of legal services want to assume a larger role in the legal process, though not going as far as representing themselves, not only to save money but to be in control. Clients are not as loyal to any service provider or manufacturer as they once were. This is important to note because the emphasis on creating long term relationships should not have the same priority that it is assumed to have. The book “Loyalty Myths” discusses how loyalty is overrated and is a complicated issue.

A lawyer who is innovative and different will obtain more business and therefore ensure survival.

To Produce A Better Product

By being innovative and being different, especially innovative, a lawyer can produce a better product for a client. This makes for a happier client and the lawyer feeling good about improving the system and contributing to society rather than only helping clients and making money.

To Be Creative

Being creative by being innovative is fun and probably physically and mentally healthful. Lawyers could use some fun.

Some Basic Principles

1. Innovation is a Management Science not an Art Form

Formulating new ideas does not involve meditating on a mountain top in India and hoping that a message with a revolutionary idea will appear. In his book “What Customers Want - Using Outcome Driven Innovation to Create Breakthrough Products and Services “, author Anthony Ulwick does an excellent job of describing the process to properly obtain the innovative ideas that clients really want, and are most profitable to the innovator. In a nutshell, he says to focus on the outcome of the jobs the client is requesting, as opposed to the client, to find out how the client really measures success, then to concentrate and promote the most important and unsatisfied outcomes. There are many books on innovation to help lawyers create good new ideas. There are computer programs and companies such as Idea Champions that help businesses to be innovative. At www.ideachampions.com Innovation kits with written material posters and a playing card innovation game are offered.

2. It is Easy for Lawyers to Innovate - Steal Ideas

Since lawyers generally lag behind the business community in technology and management, it is not difficult for them to be innovative and be different. They simply have to use the number one method to be innovative and that is to “steal” ideas. One can steal ideas from other lawyers, especially those in other jurisdictions (study their internet sites) and steal ideas from other businesses. If a lawyer is uncomfortable with the word “stealing”, then the better phrase for that theory is Tom Peter’s description “creative swiping” found in his book “Thriving on Chaos “, or use Theodore Levitz’s phrase “creative imitation” which is discussed in Peter F.Drucker’s book “Innovation and Entrepreneurship, Practice and Principle”.

3. Create the Perfect Legal Service

Another good method to create innovative ideas is to imagine the perfect product. Karen MacKay, a principal with Edge International Inc. writes about the perfect client service law firm in the Winter2006 edition of LawPro. Ulwick would add that in these brainstorming sessions one should keep in mind budgetary and operational restraints. It may not be easy to find ways to become the perfect firm but small inexpensive innovations can easily be made toward that goal.

4. Client Input

Client input is important for many reasons. Clients may provide the ideas you may not think of. Client input can help predict whether an idea is important and will actually succeed. However, just simply asking clients for their ideas or comments does not necessarily work. In Anthony Ulwick’s book, he does an excellent analysis of capturing customer input. Ulwick says, what is important to know is how clients actually measure whether a job is well done. He says that presently the wrong questions have been asked of customers and customers seldom articulate exactly what they are thinking. Other methods must be employed other than simple questionnaires after the fact.

Though some lawyers use client surveys, and I have been using them for many years, I find that the ideas generated are basically not very helpful, ( though after doing this paper I will re-work my questions), but I still think that having a survey is important to show the client that their input does matter and to give the client a chance to thank me. And maybe a great idea will come from a client. To get more surveys answered I started giving a prize once a year (now two regular season tickets to an Ottawa Senator’s game) to the best suggestion. The first winner of my client survey contest was someone who asked if I had ever heard about the internet. At that point I had not. This client sparked my interest and subsequently I became one of the first lawyers in Ottawa to have a web site.

5. Client Perception

It is very hard for clients to judge properly how well a lawyer performs because the client may not know how difficult or easy their case is. They are not lawyers and do not have a similar situation to compare it to. I have done well in Court when the client did not think I did and I have done poorly in Court when the client thought I was great. That means a number of things. The main one is to concentrate, and to be innovative and different with your service, because service is something that the client can judge. Secondly, manage clients’ expectations so they know how to judge properly. Thirdly, as recommended by Canadian management guru Milton Zwicker, try to tangibilize your services with physical items.

6. Improvements can be small and cumulative

Being innovative does not require finding the cure for cancer or finding a new way to save on taxes no other lawyer has figured out. Using the Japanese theory of “kaizen”, which means continuous small improvements, is more likely to produce better results for the lawyer than spending all of his or her energy trying to find the big idea that may never materialize.

7. The Innovation does not necessarily have to be a technological innovation

This principle is discussed in Peter Drucker’s book “Innovation and Entrepreneurship, Practice and Principle”. As “the” office management guru points out, most technical innovations cannot compete with some of the major social innovations. Installment buying was a major innovation that is more revolutionary than any technological innovation. Though in the computer business, Dell’s success comes from their operational innovation, not from a technological invention.

Lawyers should work on their client service processes rather just consider technological innovations. There is a reason so many law office management articles harp on lawyers to return their clients’ phone calls - it is very important to clients and it is easy to do so. An Ottawa lawyer marketed the fact that he or one of his staff would return their call within 60 minutes.

8. Technology Innovations are Easy for lawyers

Because lawyers generally lag behind in technology compared to other businesses, there are many technological innovations lawyers can easily make in their practice. They do not have to be expensive and many are probably already in their present computer programs.

I use some of the word processing functions in word perfect to number the lines of my draft wills so clients can point out changes more easily. I produce indexes and tables of contents for separation agreements so clients can more easily find clauses they are looking for. They are little things but they do add up.

Innovation and Differentiation in Practice

Based upon the principles outlined above, I have tried to create better and different products for the areas of law that I practice which are family law, wills, powers of attorney and the administration of estates.

One of the worst things that can happen to people in their life time is the breakdown of their marriage. Therefore, the process, and not just the resulting agreement or court order, is very important to the client. As discussed, clients can judge the process whereas they cannot easily judge whether court results was good or bad. Clients want a friendly, less intimidating process, and to feel comfortable with their lawyer. Before choosing their lawyer, they want as much information about him or her as possible. Throughout the process, they want information, they want to participate and to be in control. They want to keep their costs down if they can. Another trend today is that they want to be organized. At work and personally they have electronic organizers and systems to be organized because they know with information overload and their busy lives they need systems to be organized.

Web Site

On my web site, I give a great deal of information about the law and about the process. These are articles written for clients, not repeats of articles published for lawyers, though I have those also. We live in the information age - prospective clients want lots of free information. To reduce client anxiety before they meet me, I give a lot of data about myself, not just one paragraph about where I went to law school but how old I am, the fact I am married and have two children. (In resource section of my web site, I have MP3 files of my younger son who is the lead singer and guitarist in a rock band). As one client said to me, since in a family law case I know all about their life, they should know something about mine. In an attempt to be less intimidating, I use humour. I include a picture of myself (so they know what I look like before they see me). Under the picture it says “In person, I really am thinner and have more hair.” I also admit that the picture is quite old. Therefore I have up-to-date pictures of me and the Ottawa Lynx Baseball team mascot as well as me and Jason Spezza of the Ottawa Senators, and a picture of me and Yuppie, the former Montreal Expo mascot, who is now with the Montreal Canadians. Clients are anxious as to what will happen at the first interview. They want to know what they should bring and what information I will ask. Therefore on my site I have forms for the clients to complete and submit prior to their appointment. This also makes them feel they are more involved in the process and are saving money by doing some of the information gathering themselves. I have clearly set out what my fees are and have my retainer on my web site.

Web sites are a lot of initial work but it is worth it if done right but not as much work as touted because there is no great need for lawyers to continually update their site. Clients are shopping around for lawyers and they are using the web to do it. An informative good web site will result in more business as it has for me.

Packets

If the clients do not have access to the internet, and some of my older clients do not, I will send out a packet in the mail. I have a packet for each area of law in my practice. The packet contains the essentials that are on my web site being information about me, the basic articles, the forms to fill out and the fees. The packet on my web site can be downloaded both in html or pdf form and the questionnaires can be filled out directly from the web site.

Manuals

The cornerstone of my innovation and differentiation is my manuals. My office is next to Burger King, the home of the Whopper and I like to say I am the home of the Manual. For each area of law that I practice I have a substantive manual to give to the clients at their first appointment. The manuals serve two functions. The first is to give information. Some of it is repeated information but with the manual it is written, so not forgotten, which is useful with the overload of information they have to take in. Some information in the manual is secondary that would take too long to go over with the clients. The second purpose of the manuals is to hold information. I three hole punch all letters and documents I send to clients and they insert it in the appropriate place in their manual.

In the case of the family law manual there is a number of free Government brochures. There is an article on how to fill out your financial statement and the Guideline Table and many other informational articles that I, or others, wrote. The information that I wrote is of a very practical nature including a map of the Court House and the different parking lots around it. There is an article on legal fees in matrimonial matters including an explanation of how to understand my account and how to keep fees lower. In Volume 2 of the Family Law Client Manual, which is provided at the commencement of litigation, I include information of what the client can expect to happen at the different conferences, where to meet and what my cell phone number is and what to wear.

The manual for wills and powers of attorney has some articles that are of interest after the will is signed and some forms to keep up to date so the executor will have an easier time administering the estate. I also write all the executors to advise them of the manual, where the will is being stored and give them an article about their duties.

The Administration of Estates manual allows the client to keep track of what has to be done and shows a way to account for the money coming in and out of the estate.

I did not invent the idea of the manual. I stole it. Most consumer goods come with manuals. I can’t remember all the complexities of my digital camera without referring to my camera’s manual. By having copies of everything in an organized manner in the manual, the client can more easily be a part of the process which is something the new consumer of legal services wants. I am always trying to add more information to the manuals that would be a benefit to my client whether it is by me or some related subject - the kaizen theory - small cumulative improvements. A lawyer could just start off with an organized way for the client to holding copies sent to the client and slowly add articles. This innovation has no technology element but is an operational innovation. The manual provides something tangible to the client.

Client Consultations

One important outcome today’s clients, especially for matrimonial clients, want in my opinion is to be comfortable with their lawyer. You cannot ask, in a client survey, if the client was not at ease with their lawyer, but I believe that this outcome is important to clients because of the feedback that I get in many initial phone calls or first interviews. I see or hear that some clients are quite nervous and often make the point that they are nervous as they have never been through a separation before or been to a lawyer before and they actually apologize that they do not know the law. Often at the end of the consultation they give a sigh of relief and say “Gee, that is not as bad as I thought it would be”. This is a case of the client not really expressing what they really want. To deal with this, I really try to set the clients at ease. I try to reduce their anxiety even before they see me by providing them information on my web site or by a mailed packet about the law, the legal process and me personally including fees. I also remind them if they apologize for not knowing the law, that if they knew the law I wouldn’t be in business. I tried to be somewhat humorous at the appropriate times even though my wife likes to remind me that not everyone appreciates my humor.

A technological innovation and difference that I have for my client consultations is a second computer monitor on my desk specifically for the client. This was a minor cost but is greatly appreciated by my clients. As I am doing work on the computer, which is done in every area of my practice, my client can follow along. In matrimonial law, they see and therefore understand more easily, Divorcemate calculations. I fix up their pleadings and work on their financial statements using the monitor. In the area of wills and estates, I am preparing “to do” lists and “asset” lists and the clients work along with me. I then print out these lists and have the client immediately insert them into their manuals.

As I have trouble reading my handwriting and want to go completely digital I have been making my telephone and consultation notes electronically. Those notes include the facts the client has told me, what advice I have given the client and what everyone is expected to do next. I will then often printout those notes for my client so they have a record of what was discussed and what everyone is to do next.

Creating manuals may sound like a lot of work but it really isn’t as that information is probably orally told to clients. If you put it in writing you will not forget to tell them and they have a written copy of it.

Court Appearances

To reduce client anxiety, I have a detailed memo ( in Volume 2 of the Matrimonial Manual) of what will occur at court including the little questions they ask such as what to wear and where to meet.

Because I have trouble reading my handwriting, I type out my arguments for any court appearance, even case and settlement conferences. Besides reducing my anxiety, I am able to give this to the client beforehand for any comment on my presentation and also for them to have a copy of what I will most likely say.

Lately I have been bringing my second hand lap top to court with Divorecmate loaded on it so to make calculations on the spot if they are requested which can happen as different assumptions are being put forth by the other side or the court.

Fees

Some clients are willing to do some of the work themselves to reduce their fees. This is especially true in the area of estate administration. I therefore have broken down on a homemade form, the many tasks that might occur in the administration of an estate with a cost for each task. Some tasks are generally only done by the lawyer, such as the initial advice as to what has to be done in this particular estate and the application to court. Some tasks are generally only done by the client, such as setting up the estate bank account. But most tasks can be done by either the client or the lawyer. The client then decides who is going to do what and is charged accordingly. I fill out the form at the first consultation and print it out for the client’s manual.

Law Firm Promotion

The problem with most lawyer promotion is that there is no message. Most ads simply advertise the firm is a full service law firm, and lists every conceivable type of law the firm practices to show it is a full service firm, or states the firm specializes in a certain type of law. Sometimes there are vague slogans. All the telephone book ads look the same and say the same things though some maybe catchier than others.

Anthony Ulwick would suggest that the message should be that a business can meet those important and unmet outcomes. Unfortunately with the limited space, it is hard to get that message or any substantive message across in a telephone book ad or newspaper ad, which is why I believe a web site is the best place for a law firm to market to today’s client. The telephone book and newspaper ad should mainly catch the prospective client’s attention and direct the prospective client to the web site.

Ulwick would also suggest that the message contain information proving the claim. I would agree that today’s consumers are not stupid and do not like hype that simply claims a product is the best. I personally do not like testimonials which some lawyers employ in their ads. I do not see that as real proof. Third party recognition is more credible but not really available for lawyers. We do not have local award shows. I jokingly refer to my web site as the critically acclaimed award winning web site because early on in the history of the web when there were few legal web sites, my site was praised in a few legal publications. It was also a runner up in an Ottawa magazine’s web site contest, and a few years ago I was the monthly tech setter in the U.S. publication “Law Office Computing”, mainly because of my web site.

Today’s consumer when buying, especially a big ticket item like legal services, will shop around. The best place today to shop around is the web. There is unlimited space to get your message across to clients. I have discussed above the elements of a good web site. Promoting your web site is a whole other science and issue. A few years ago I wrote an article entitled “Some Thoughts on Producing and Marketing A Law Firm Web Site”, which goes into greater detail about web sites and their promotion but since that time I discovered the science of how to (without spending much money) increase search engine rankings which has been very helpful and I suggest necessary. I used the book and a program called “Search Engine Optimization with Web Position Gold 2".

I try to promote the fact that I am innovative and different in many ways. I start with the very name of my web site - “thepascoedifference.com”. Having that name was a bit of luck. I had to change it because “Know Your Rights” was the original name of my web site, but then when a Minnesota law firm paid me $10,000.00 American for my name I had to come up with a new name.

The slogan on my magnetic business cards, which I have been giving away for many years now and my client’s really like, is “Discover the Pascoe Difference”. I creatively swiped the magnetic business card idea from my dentist. On the back of my regular business card, I have outlined my service principles. I creatively swiped the back of the business card idea from a client who handed me his card which he proudly pointed out had promotional information on the back.

Lawyers always talk about the importance of referrals and how that is where they get most of their business from. However, what do they do to thank those referring? I send a lot of business to other lawyers and quite frankly I am not impressed with the Christmas card or simple thank you notes if I am sending something that they may bill thousands of dollars on. I send the thank you notes but in December I also send anyone including lawyers who sent me a client that year a nice large bottle of maple syrup. I also give small bottles to any client who has an appointment with me in the month of December. I also give bottles to many of my suppliers and lawyers who I have called on advice for during the year.

Measuring Your Marketing Results

It is important for the lawyer to know what marketing is and is not working. It is important to measure results that matter. In this book “Agenda” author Michael Hammer discusses how business measures a lot of results and creates a lot of statistics, but much of the data collected does not really mean anything. When it comes to the internet, it is irrelevant how many “hits” you get, what matters is how many clients you get from your internet site. I cannot open a file without putting a code into PCLaw as to how I got the client. Therefore I know how many clients are referred by other clients; how much money I generate from my telephone book ad and how much money I generate from my internet presence. When I advertised in the local newspaper I also know the return. One must also remember that there is a multiplier effect because so many of our clients are repeat clients, and they refer other clients, so the fees generated by the internet is really greater because of the multiplier effect.

Conclusion

Innovation is a very large subject that I have only touched on. Some people would disagree with many of the opinions I have expressed. But hopefully a lawyer should go away from this article with a passion to be innovative and to be different, and to learn more, as well as with some knowledge of how to be different and innovative and with some immediate changes that can be made in a law practice.

Bibliography

“Differentiate or Die”, by Jack Trout with Steve Rivkin, published by John Wiley & Sons, Inc.

“Get Innovative or Get Dead”, written by Matthew J. Kiernan, published by Douglas and McIntyre

“Commodization” by Janice Mucalov; published March 2006 Canada Bar Association “National”

“Loyalty Myths: Hyped Strategies That Will Put You Out of Business and Proven Tactics That Really Work”, by Timothy L. Keiningham, Terry G. Vavra, Lerzan Aksoy, published by Wiley

“What Customers Want, Using Outcome - Driven Innovation to Create Breakthrough Products and Services”, written by Anthony W. Ulwick, published by McGraw-Hill

“Thriving on Chaos: Handbook for Management Revolution” written by Tom Peters, published by Harper Collins

“Innovation and Entrepreneurship, Practice and Principles” written by Peter F. Drucker, published by Harper & Row

“The Perfect Client Service Firm - From the Ground Up” by Karen MacKay published in Volume 5, Issue 1, Winter 2006 “Law Pro”

“Some Thoughts on Producing and Marketing A Law Firm Web Site” by Lawrence S. Pascoe found on Web Site www.thepascoedifference.com

“Search Engine Optimization with WebPosition Gold 2" written by Brad S. Konia, published by Wordware Publishing, Inc.

“The Agenda”, written by Michael Hammer, published by Crown Business