“Advertising is the art of making people unhappy.” I read that definition, purportedly a quotation from a modern French philosopher, several years ago, and it’s stuck with me ever since. The way to sell something, this theory goes, is to create in your audience a sense of inadequacy, a belief that they lack something important and that their lives are accordingly emptier and less valuable than they previously thought — and then you offer them your product or service to fix this newly discovered problem. You create the demand that your supply will then fill.
It occurs to me that most lawyer marketing and law firm advertising fails to follow this rule. It’s the rare marketing effort by a law firm that persuades the audience that it lacks something critically important. Most law firm advertising is far more passive: it essentially says, “Should you ever find yourself with a legal need, think of us.” It normally doesn’t encourage people to actively examine their lives for this need, or to create a need where none really exists; it assumes the need will come along and that people will notice it on their own.
Traditional advertising is premised on the idea that consumer needs must be encouraged or they might not otherwise develop. Lawyer advertising is premised on the notion that legal needs will inevitably develop no matter what you do. Accordingly, lawyer advertising seeks to inform the inevitable client ahead of time that (a) the firm exists, (b) it provides services in this area, and (c) it can be trusted to help. Most advertising wants you to buy something now, whether you need it or not; lawyer advertising assumes you’ll need a lawyer eventually, and patiently awaits the day when you actually do. It’s brand generation more than need generation.
To a great extent, this makes sense. An auto accident victim doesn’t need a lawyer until she’s in an accident, and that’s hardly an empty space in her life that she’s yearning to fill. Corporations don’t need law firms exhorting them to acquire smaller companies or launch IPOs; they’ll do that themselves when they’re good and ready. Not only is this a sensible approach, I think it’s also commendably ethical. We live in a heavily consumerized society, where buying something is often seen as a virtue in itself. Most lawyer advertising has not yielded to the temptation to consumerize our clients’ legal needs, and I hope we can stick to that.
Now, there are always exceptions, some good and some less so. Wills and estates lawyers can (and probably should) generate more demand for the creation of wills, which is a social benefit as well as a source of income for the lawyer. (Various bar associations sponsor “Make-A-Will” Months for exactly this purpose.) If it didn’t create such discomfort for engaged couples, encouraging prenuptial agreements would also be a good idea. Sliding down the spectrum, we find class action lawyers seeking victims of a specific corporate malfeasance, or TV ads exhorting personal injury accident victims to “call today” — defensible on the grounds that it’s informing clients of their rights, I suppose, but nonetheless feeling uncomfortably like a cause of action in search of a plaintiff.
Still, I think there’s room to expand the ethical and justifiable creation of demand in the legal marketplace. The undiscovered territory, to my mind, is in the area of preventive law — helping clients avoid legal problems rather than responding to them after they’ve occurred, in the manner of Richard Susskind’s famous dictum about placing a fence at the top of a cliff rather than an ambulance at the bottom.
I’m not thinking of “legal insurance” per se, although there’s an argument to be made that such insurance generates a social good by reducing the impact of legal problems on people. I’m thinking more of practices devoted to regulating the business and personal affairs of clients in ways that will reduce the risk of actions or omissions that create those legal problems. A lawyer could develop a “legal checkup” system or a “legal health” regime for individuals or corporations, perhaps on a monthly retainer or “subscription” basis, in which the lawyer instills good legal habits, monitors various activities for legal risks, plans ahead for various eventualities that have legal ramifications, and so forth. You can certainly think of other actual or potential examples.
What we’re really talking about here is lawyers tapping deep into the latent legal market, creating a demand for legal services that doesn’t exist but that would be ethically and socially legitimate to bring to light. To the extent that lawyers start encouraging the creation of demand for their services, I’d like to see them go in this direction, developing greater scope and creating benefits that go beyond the traditional “compensation for damage” motif. Lawyer advertising, seen from this perspective, would be the art of helping clients be more secure and better-informed about their legal rights and risks. I’d like that definition a lot better.