For the record, I have tried many cases during my career but have not done so for several years. But some things–in my case sports statistics, rock lyrics, and trial tactics–persist in the memory.
“Alternative Provider” is a term that has become common parlance in the legal world. I eschew it because it connotes a substitute for a known quantity and generally not something particularly good. Just because a provider has a new economic model and/or a different way of delivering a service (in this context legal service), why cast it that way? But all that aside, we all know about alternative providers and how they are beginning to reshape the legal landscape, so here are some tips for them derived from trying cases.
- You are in the persuasion business
The burden of persuasion–or burden of proof–is embedded in human interaction. That burden is not monolithic; sometimes it is steep (trying to talk your way out of a parking ticket); others not (convincing your spouse to go to another restaurant). For alternative providers, the burden of persuasion remains steep, because they must first establish their credibility in the marketplace, especially when compared to entrenched law firms. So be ready to meet that burden by anticipating and preemptively extinguishing concerns about credibility.
- It’s Story Telling
Top trial lawyers are great story tellers. They weave together the disparate threads of a trial and make sense of it for their audience (and, in the process, meet their burden of proof). Likewise, describing an “alternative provider”, one with a new model and a different way of doing things, requires telling a good story.
Before trying a case, I would go up to a stranger and offer them $20 in exchange for 5 minutes of their time listening to me tell a story for the first 2 minutes, then telling me what it was about in the remaining 3. If they understood the story, I was ready to try the case. I suggest this strategy for alternative providers.
- Sum It Up in One Word
I memorized one sentence in each trial, and it was the first one of the opening statement. It would always be the same: “This is a case about ——-. If you can distill a complex matter to one word (greed, fraud, jealousy), then it establishes the theme for the story. And when you close– reminding the trier that the evidence has demonstrated the applicability of that word– you are in good shape. But it’s not easy to characterize a case–or a new business model–in one word. That’s the trick. But try finding it and the likelihood of a successful outcome is increased dramatically.
- “Look Like a Lawyer” and The Brand
I would always ask to poll a jury and was frequently told that “You look like a lawyer and we believed what you had to say?” I took that to mean that “brand” is a factor. Applying this to alternative providers, it is important to look and sound professional and, most of all, to be credible. The temptation to overstate one’s capabilities or to over-promise can be great, but it usually comes at the price of undermining credibility. Alternative providers do not usually have the brand recognition that established law firms do, but they often have a better story to tell. Stick to the story and don’t try to expand the brand beyond that which it can deliver.
- Opposition Bashing Rarely Plays Well
Many lawyers believe that law is a zero sum game; there is a winner and a loser. Look no farther than the statistics on cases settling vs. tried to know that this is not so. And in those cases that do get tried, I have never seen a lawyer get ahead by engaging in a personal attack upon opposing counsel. And so it is with alternative providers and BigLaw; the former does not benefit from bashing the latter. Rather, the former can benefit from concisely distinguishing its model and value proposition from its opposition. Remember: most corporate legal departments are staffed by alumnae/i of BigLaw and have friends there. Don’t bash; distinguish.
- Closing Thought
The legal marketplace is ripe for change. Alternative providers are beginning to establish breadth and depth in prying away work formerly done by BigLaw. There is no reason to think this cannot continue. It will take new economic models, greater efficiency and transparency, technology, and new skills–such as project management–to turn the tide in the alternative providers’ favor. Lessons learned from trying cases can help move that process along.
