Mark, Sammy and What's His Name
Positioning theory is a bad news, good
news kind of thing. The bad news is that it comes out of an advertising agency
and has all the accoutrements of that genre. The good news is that it accurately
describes a part of the process by which we all receive and evaluate the
data that we use in certain decision making. In addition it provides a basis
by which we can research, measure and analyze that process and use the results
to predict future decision making behavior. Positioning theory started with
a clear consumer product (as opposed to service) orientation and has the
nomenclature that goes with it. However, properly adapted, it has been shown
to predict behavior in as sophisticated a service industry as the legal
profession. Translated from the original Greek, it helps us understand how
people, including corporate types, choose lawyers.
The theory originates in the work of
two New York advertising executives, Al Ries and Jack Trout. The nomenclature
can be traced back to a 1972 article in an advertising trade publication,
Advertising Age. Positioning theory is a paradigm, or model, for
what goes on in our head and heart with the information that comes in through
our senses and results in our reaching for our wallet or otherwise making
a choice together with the action that makes it real. While positioning theory
has evolved over the years, what is most important is that it works in making
predictions in the information / decision matrix.
Positioning theory says that we are
all overloaded with information. It cites the seeming tons of mail that
crosses our desks every year, the hundreds of commercial messages that we
hear from the media daily and the other sources of the constant barrage of
information that is part of our lives. It postulates that we can't consciously
consider all these messages but that each is perceived somewhere on the continuum
between our conscious and subconscious. Psychologically, human beings are
mental pack rats and no message is entirely disregarded. Wherever they happen
to fall on the continuum, every message has some impact and stays with us
to some degree.
Positioning theory then goes on to
postulate how humans process all this information. It says that the information
is categorized in what it calls 'ladders'. Within these categorical ladders
rankings. It says that in considering options and making choices, we will
begin with those products or service providers that are at the top of our
individual ladders for products, services or lawyers.
The final element in this short explanation
of positioning theory is its concept of the meaning of 'words'. For the
purposes of positioning theory, the meaning of words doesn't lie in the speaker,
meaning resides in the listener. This is consistent with
Core Concept #1
on the level of primary communications. Thus, research conducted pursuant
to positioning theory doesn't so much ask what the speaker said as to the
meaning given to those words by the listener.
To avoid throwing out the baby with
the bath water, we must first be able to distinguish the baby from the bath
water. While positioning describes a theory that, in part, discusses how and
why advertising works, the application of the theory to the legal profession
is independent of whether an individual attorney or firm engages in any media
advertising1 at all. Positioning is not
advertising and does not require that firms engage in - or not engage in -
any specific form of advertising or marketing. The application of positioning
theory to the practice development plans of a firm that avoids media advertising
altogether may be actually more beneficial than to one with an extensive media-advertising
Defining the Ladder
In Positioning theory, what we measure
is a lawyer or law firm's ordinal
'position' on a continuum. Applied to potential clients, once we define
the ladder, we can rank the legal service providers on that ladder, beginning
with the most dominant (holding the highest average ordinal position i.e..
1st, 2nd. 3rd, etc.) If we define the ladder as 'who would you call first
if you were hurt in an accident' we can create a list, starting with the
most likely to be called first.3
Lawyers and law firms are not only
positioned by prospective clients but by current and past clients as well.
4 Even lawyers 'position' other lawyers. You position every
lawyer you know, simultaneously on a number of ladders. You have a 'substantive
ladder', an 'experience or expertise ladder', 'integrity' ladder, and others.
Part of the reason there are lawyers out there who you know but whose success
you can't understand, is because you don't position them in the same way
they are positioned by potential clients.
It is a mistake with serious economic
consequences to presume that you understand the positioning ladders of either
your existing clients specifically or potential clients generally. For example,
consider the ladder called 'the best lawyer in America'. How many lawyers
would put Johnnie Cochran at the top? Lawyers with trial experience would
be hard pressed to identify a lawyer who fought longer and harder against
a more powerful opponent contrary the weight of popular opinion to victory.
There are millions of Americans for whom Mr. Cochran tops the list. If he
doesn't top your list, it would be a serious mistake to presume you understand
Identifying the ladders you want to
be on is intimately related to articulating your firm's vision and mission.
In our seminars we put up a large sign with an aphorism that makes 'clients'
part of the definition of what a lawyer is.5
Being educated in the law does not make you a lawyer, nor does a license
or admission to practice before a court, although each of these elements
is part of the picture. You are not really a lawyer until you have a client
and you only remain a lawyer so long as you have a client. If you wish to
call the top rung on any ladder of the profession your own, remember that
the ladder exists not in your mind but in the mind of your collective potential
Lawyers and law firms are in a competitive
market for position and this will be the case for the foreseeable future.
To the extent that competition is about future business, the playing field
on which we will compete in the mind of potential clients. This is true
whether we wish to improve our position or hold the position we have against
our competitors. Not only can our rung on a particular ladder change over
time but the ladders themselves are changing. Those changing ladders
are part of our law practice environment.
The effective master of positioning focuses not only on the rung, but on
the ladder itself.
Defining the ladder is not hard if
you start with a clean slate (no presumptions) and think and feel like a potential
client. Okay, so it is hard. Consider defining a ladder called 'home run
heroes - 1998'. It would be a mistake to ask you to tell me who was number
4 on the ladder. While this would be a clever way to demonstrate the potency
of being on top - and this example aside, that is a very potent position
- it would be inconsistent with the theory. As the public and the media defined
this ladder there were only 3 rungs, Mark, Sammy and everyone else. While
someone had the 4th. best home run total there were only three rungs on the
ladder and only the first two counted. While the ladder analogy is a useful
conceptual device, it, like all analogies, only goes so far.
Measuring the ladder
One of the great benefits of positioning
is that position can be measured with relative simplicity and substantial
accuracy. Past and existing clients can be studied in-person, by written
mail questionnaire or a combination of methods. Potential clients can best
be studied with oral questioning methods, usually by phone.
Most law firms are reluctant to give
out proprietary benchmark or baseline information from which you can determine
your competitive position by market share. Market share requires you to
limit the market to that defined by the ladder and to know the total amount
of billable hours / dollars / cases all clients within the market consume.
However, certain techniques can sometimes be used to accurately determine
market share. Market share can only be used to determine the efficiency of
a practice development program when the market is stable and subject to objective
evaluation. Bankruptcies are an example of determinable market. With enough
work you can find out how many are filed and by what category of client and
compare this data to your caseload. Because the size of the market is accurately
reported, the number of new client calls in this area will be directly proportional
to your position, if all your calls are from a single source. If some of
your new cases are direct and some are from other practitioners, the evaluation
becomes more complicated.
The presumption is that, like the school
children of Lake Wobegon, we are all at the head of our class. (Where we
are not, as in large markets where a dozen firms compete for the top rungs
on the P/I or consumer bankruptcy ladder, modest changes in position can
have a large economic impact on the firm.) This impact is felt in two ways.
First it is in the quality and number of cases handled. (If you can handle
50 cases a year, you'll do better if you choose 50 out of 100 as opposed
to taking the first/only 50 that come in.) Secondly, the impact will be felt
in the amount of resources
that are invested in getting the work. Toward the middle of the pack
a small change of position can have a substantial effect. However, in the
middle of the pack, you must apply your resources with careful aim.
Using the ladder
What takes positioning from cafe conversation
to a practice development tool is the high degree of correlation between
a firms position and the success rate it has in attracting and keeping clients
consistent with its practice development plan. Every idea gets into our head
somehow and will change over time based on external influences.
7 While we have defined advertising
elsewhere on these pages, an alternative definition would be 'engaging in
conduct intended to get others to change your position on one of their ladders'.
If your firm wishes to be the plaintiff's personal injury legal service
provider for more clients every year, you need to understand the nature of
that ladder as it exists in the mind of the potential client population.
Only then can you move up on that ladder. The level of your drive or effort
notwithstanding, you will not effectively or efficiently move on that ladder
until you define it as the clients define it. (You may make some serendipitous
progress by luck. If that is your plan, stop reading now and head for the
Client and market research are the
tools that define the ladder and measure your (and your competitor's) position
on it. This is faster, less expensive and much less stressful than waiting
to see if the programs you've designed and implemented are producing the
hoped for results.8 The examples we use
are often from the experience of plaintiff's personal injury firms because
the ladder is relatively easy to define and because of the tight correlation
between measured position and client behavior (calls). For many firms, especially
those in a highly competitive or volatile market or those with multiple specialties
and/or client constituencies
, the matter is more complex. For example, if your firm engages in insurance
defense and real estate practice, will enhancing your position in one area
effect it in the other? What if you implement a program to improve your
position at the same time as a competitor for position on the same ladder?
Rather than wait and see, you can test the market and determine the effectiveness
of the program. This allows the adjustments that maximize its efficiency.
In the final analysis, positioning
is a very handy concept because it works. It defines a measurable correlation
between the concept defined and client behavior. Better yet, it can be used
to test and predict.
1. Every practitioner advertises to one extent
or another. If we didn't, the only clients we would ever get are those who
wander into our office by mistake. The nature and extent of our various advertising
is one of those things we can position on a continuum.
2. We worked with an experienced trial practitioner
who developed substantial expertise in a particular niche of corporate litigation.
His vision was to limit his practice to this niche. It became what we called
the 'Paladin' model, where he traveled the country whenever and wherever his
specific expertise was needed - for the duration of the case. There was no
possibility he would engage in media advertising. To realize his vision, we
had to understand the ladders of those who would 'make the call' that get
him business (Usually house counsel or personal counsel for the CEO). Having
identified the population of potential clients and the ladders that existed
in their minds, we were able to development a program to get him positioned
at the top of those ladders.
3. We recently completed a market survey of a wide
geographic area served by one of our consulting clients and we asked a similar
question. Number one on the list was the other driver's insurance company.
When we asked about P/I law firms in the area, the list was different. It
is very important how you ask the question or define the ladder.
4. Within firms with members practicing various
substantive specialties, meeting multiple categorical needs of existing
clients is good business. However, lawyers usually view these categorical
ladders and who is on them differently from their clients. One of the most
valuable benefits of Clientcentricsm
research is a better understanding of the categorical service ladders in
the minds of your clients and where members of your firm rank.
5. "Without clients, we are just a bunch of overeducated
folks waiting in line for free cheese."
6. Picture the wildebeest herds on the African
plain. It is relatively easy to notice and photograph the first wildebeest
and the last wildebeest (that's the one being eaten by the lion). For a wildebeest
in the middle of the pack to stand out (take a position in the recollection
of tourists and get their picture taken) he/she has to figure out what will
get the tourists' attention. Wildebeests don't have a lot of resources left
after all that running and what little they have to spare they must use wisely
or they risk falling back in the pack and having lunch with the lions.
7. A person whose ideas change over time without
external influence is called schizophrenic. That is what sitting alone in
a room, talking to your imaginary friends and having them change your mind
is all about.
8. Without at least a component of the research,
as to your practice development programs, you are 'designing blind'. Well
designed and executed research projections not only 'define the ladders'
important to the firm's vision and mission but measure the firm's position
on those ladders and identify factors that are the most influential in moving
up a rung or two. For example, we recently completed a research project for
a small personal injury firm that identified two factors that were important
elements to prospective clients in positioning potential personal injury service
providers. The firm focused its message on these factors and their marketing
program became substantially more efficient. (In this case efficiency was
measured in new case inquiries per advertising dollar.)
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