Positioning

Theory

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 are ordinal 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.

Practice

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 program.²

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 why not.

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 clients.

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.

Caveat

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.⁶

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 nearest casino.)

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 Clientcentric^sm 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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