We spent some days working through a single development (a court order in a long-running cross-border enforcement matter) to establish whether it contained a business development opportunity for law firms. We tested five propositions. Four failed. This note sets out how they failed, because the failure modes are more useful than the survivor.
I should be clear about the register: This is not a confession. Running several theses to find one is ordinary work, and a marketing function that produces only ideas it believes in is not doing the analysis.
The first failure: arithmetic
The initial thesis concerned securities litigation exposure for Indian issuers with US-listed securities. Straightforward reasoning to an exposed pattern was applied at the outset. A category of companies was newly exposed. Adjacent parties multiplied the potential instructions. The timing was current.
The perimeter turned out to contain between six and nine companies. The triggering event occurs perhaps once every few years across that entire set. Every one of those companies has held US securities counsel for two decades.
The narrative version of the thesis is so attractive that its proponents miss the counting work which takes an afternoon and doesn’t need practicing lawyers’ comments to reveal practicalities.
The second failure: the wrong buyer
The next thesis proposed building relationships with directors of insurance carriers, on the basis that the carrier sits within the instruction chain for defence work.
It does. But the carrier’s position is a consent right over rates and appointments, not the power to appoint. The board and general counsel select counsel; the carrier can refuse to fund. A programme directed at the party that can decline rather than the party that decides produces meetings and no instructions.
There was a second error underneath it. The constituency within a carrier that consumes market analysis is the underwriting side. The constituency that assigns defence mandates is the claims side. The content strategy and the instruction path did not meet.
The third failure: the offering already exists
The third, fourth and fifth theses each identified a service that firms did not appear to offer: enforcement feasibility assessment before an arbitration is commenced; a coordinating counsel role across multiple jurisdictions; and promoter-level litigation exposure as a defined diligence workstream.
Speaking to practicing attorneys we discovered that the offerings were established business streams.
Specialist enforcement practices sell the first. Litigation funders commission asset-tracing reports from investigative firms as a condition of capital, which is the same product bought by a different party. Offshore and London practices market lead global coordination expressly, operating local counsel under a single retainer. Indian tier-1 corporate practices run promoter-level litigation mapping with forensic accounting partners as standard on distressed sellers.
There were commercial reasons for the gaps that did appear to exist. An asset map prepared before a four-year arbitration is stale before execution begins. A coordinator without rights of audience reads as fee-stacking. Diligence can identify promoter exposure but cannot remove it, and a non-cooperative seller will not open personal litigation files in any event.
This third category is different from the first two, and is worth dwelling on.
The asymmetry
An outside vantage point sees some things reliably. Patterns that recur across markets. How buyers behave, and which party in a chain actually holds the pen. Where a firm’s public evidence is thinner than its practice. Whether a perimeter contains a market or a dozen names.
It does not see what is already being sold. That information is not published. It sits in the pitch documents, panel appointments and fee arrangements of specialist practices, and it is not discoverable from outside by any amount of research. A service that appears unoccupied and a service that is discreetly occupied by four firms look identical from where I sit.
Which means the outside view produces theses that are plausible and, some proportion of the time, already answered. The proportion is not small.
Why partners are sceptical, and are right to be
This explains something that is usually attributed to conservatism.
Partners have been shown business development programmes that looked sound and were not. A proposal that is obviously weak is declined in a meeting and costs nothing. A proposal that is plausible consumes a year, a budget, and the firm’s willingness to try anything of the kind again. Plausibility is the expensive failure.
The corrections that killed four of these five theses came from practitioners. Not just any practitioner but within them the people who knew what specialist firms sell, how carriers actually appoint, and why an obvious-looking gap had stayed open. It took us a few calls within our networks, and we couldn’t have found the nuances in public domain.
The practical conclusion
The useful arrangement is not that a marketing function generates ideas and a partner approves them. It is that the marketing function generates and discards, and a practitioner is asked to check the survivors before anything is built.
That has a bearing on how such a function should be assessed. The question to put at the end of a period is not what ideas it produced. It is what it discarded, and on what basis. A function that has killed nothing has not been testing anything, and its next proposal should be read accordingly.
Lawfinity Solutions advises international law firms on cross-border legal market positioning. If the India corridor is a live question for your firm, we would be interested in a conversation. Lawfinity works with one firm per jurisdiction. Engagements begin with a single conversation about your firm’s current position and where the corridor question is live for you. Write to Prachi Shrivastava
