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When Marvin Spivak wanted an advertising campaign that would set his intellectual property litigation team apart from the competition, he decided to make a bold move. Bold, that is, in the typically conservative world of law firm marketing. The print advertisements that Oblon, Spivak, McClelland, Maier & Neustadt selected weren’t at all flashy, but they went where few, if any, law firms had gone before: They named the competition. The Alexandria, Va., firm’s decision to identify its top IP litigation contenders-and, it hopes, to distinguish itself from those other practices-is part of a growing trend among law firms, all vying for the best clients, to use what is known as comparative advertising. “We’re not afraid of our competitors. We’re not afraid to share the spotlight,” Spivak said. Historically, the marketing stuff of beer and dishwashing liquid, comparative advertising tries to place a product or service at the top of the competition’s heap. In its strictest form, it is, according to the Federal Trade Commission, advertising that compares alternative brands by objectively measurable attributes or price, and identifies the alternative brand by name, illustration or other distinctive information. The legal industry is relatively new to comparative advertising, said Jay Jaffe, whose advertising firm, Jaffe & Associates, created the Oblon Spivak ads. And while the comparison-oriented ads that law firms are starting to use seem relatively mild compared to the soft drink or diaper industries, their approach is evolving, he said. In Oblon Spivak’s case, the ads are targeted to catch the eye of corporations needing IP litigation services. The ads read: “Always on your IP short list.” Included is a photograph of what looks like a desk in an upscale hotel room. Atop the desk sit a PalmPilot-type device, a cellphone, reading glasses and, most importantly, a sheet of paper with the shortened names of frequently used IP firms, such as “MoFo,” “Howrey” and “Knobbe Martens.” Oblon Spivak also is on the list, with its name circled. “That’s cute, isn’t it?” said Fish & Richardson principal David Feigenbaum, referring to the advertisement, which also includes his firm’s name. “We perceive ourselves as being on the short list. We’re very flattered.” (These ads, in addition to other ads mentioned in this article, appear in The National Law Journal and in other publications owned by ALM, its parent company.) Besides making an appearance in Oblon Spivak’s ads, Fish & Richardson has its own style of comparative marketing set to run this month, which takes a poke at Fish & Neave, the New York IP firm that Boston-based Ropes & Gray acquired last year. Fish & Neave has retained its name while operating within Ropes & Gray. The Fish & Richardson’s print ad includes a closeup of a tropical fish with the words, “The only Fish in the sea” displayed across the photo. It also states, “There’s no one better to navigate IP law.” The IP litigation field is “sharply competitive,” Feigenbaum said, adding that comparative advertising is a “good thing.” Fish & Neave declined comment for the story. But at least one firm on Oblon Spivak’s “short list” isn’t bowled over by the marketing strategy. “We wouldn’t do it,” said Christopher Foley, managing partner of Finnegan, Henderson, Farabow, Garrett & Dunner of Washington, a firm also named in Oblon Spivak’s ad. Foley said that by including his firm, Oblon Spivak is trying to bolster its standing in the IP field. “We’re in the top niche among IP litigation firms. This is clearly an effort by Oblon to try and suggest they’re also in that group,” Foley said. Finnegan Henderson itself has print ads running that feature secret service-type characters guarding a huge sculpturelike structure that spells out the word “idea.” The ads state, “Big ideas deserve the best protection.” It also reads, “No one understands this better than Finnegan Henderson.” Burying ‘tombstone’ ads Law firm advertising was born in 1977, after the U.S. Supreme Court, in Bates v. State Bar of Arizona, 433 U.S. 350, lifted a prohibition against it. Advertising that followed consisted mainly of “tombstone ads” where firms simply announced new partners. The recent advertisements are catching up to a mainstream movement launched decades ago in other industries. And though law firms are still spending about the same amount on marketing-about 2% of revenues, according to law firm consultancy Hildebrandt International-they are changing the ways they spend those dollars. “Law firms used to take comfort in looking alike,” said Ross Fishman, head of Ross Fishman Marketing in Highland Park, Ill. Now firms are trying to distinguish themselves from the competition, said Fishman, a former litigator. But, he added, if each firm strives to be unique, they all end up appearing the same. The key, he said, is to have strong visuals with a strategic message. “Anybody can buy a cute picture,” he said. In 2002, the American Bar Association amended its rules on lawyer advertising, which made it easier for firms to run comparative-type advertisements, said William Hornsby, staff counsel for the ABA Division for Legal Services. Even so, firms can get into trouble if they make claims that they are better in some factually measurable way, such as claiming they are the biggest firm with the most mergers and acquisitions, when those facts are not true. Broader statements, such as “Always on your IP short list” may pass muster now. Hornsby cautioned, however, that most states, including New York, California and Illinois, have not yet adopted the new ABA rules. As such, firms with comparative advertising may be in violation of the rules. A busy IP litigation field has created cut-throat competition among those firms, which is responsible for some of the surge in comparative advertising. But other kinds of firms also are participating in the marketing strategy, though perhaps less overtly. One firm heralding itself as a law firm “unlike all others” is Dallas-based Haynes and Boone in its print ads. The firm includes an illustration of a lone, smiling orange fish swimming in the opposite direction of a school of scowling blue fish. The ads read, “We see no reason to behave like other law firms.” Another firm using a comparison strategy is McGuireWoods of Richmond, Va. It recently launched a series of print ads touting its alternative billing options as a way to help clients save money. One of the ads shows shadowy figures of men in suits with briefcases walking atop a clock face. It states, “If your lawyers serve the clock more than your needs, we would like to discuss how we can help.” The ad also reads, “The longer lawyers take, the more they make. Does that align their interest with yours?” Robert Burrus, chairman of McGuireWoods, said that the ads were designed to focus on the firm’s different billing arrangements. Their reference to a client’s other lawyers, he said, simply helps to raise awareness for the potential client. “Our objective was to educate,” Burrus said. The comparison factor Still, part of the client’s education and awareness involves some type of comparison, a practice that is becoming increasingly common as law firms get more creative, albeit slowly, with their marketing, Jaffe said. “Most law firm advertising is pretty predictable, but it’s getting better,” he said. Like McGuireWoods, other law firms are using the concept of time as a way to stand apart from the crowd. Laner Muchin Dombrow Becker Levin and Tominberg, a labor and employment law firm in Chicago, encourages readers of its print ads to “take the ‘Laner Muchin challenge.’ ” The ads, conceived by Ross Fishman Marketing, play on the failure of some lawyers to return clients’ phone calls promptly. They offer potential clients a guaranteed callback from a Laner Muchin lawyer within two hours. And if they don’t receive a call? “They’ll donate $100 to your favorite charity and buy you lunch,” Fishman said. Also using a version of the “short list” concept is Reed Smith. One recent print ad, addressing its accomplishments in diversifying its attorney ranks, reads, “Being selected as a preferred partner for Sara Lee Corporation is something we take personally.” The ad refers to Sara Lee’s practice of choosing only those firms for outside counsel that demonstrate that their attorneys are racially diverse. One Canadian firm advertising in the United States with comparative-type ads is Borden Ladner Gervais. Its ads feature a cartoon of a women on the phone while sitting at her desk, which is adorned with a “CEO” plaque. She says, “Could you give me a minute to collect my thoughts? My old law firm never called me back this quickly.” Still other firms are using courtroom experience to distinguish themselves from firms that might not offer many trial-ready lawyers. Kansas City, Mo.-based Lathrop & Gage’s ads say, “If you can’t stand the heat, get out of the courtroom.” The movement toward more comparative advertising, Jaffe said, is inevitable as the legal industry shadows mainstream marketing. “Law firm advertising, in fact, will become whatever is the same path in consumer advertising,” he said.

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