Stephanie Francis Ward: So you get a meeting with someone you’d love to have as a client. What should you say?
Tom Goldstein: I try and get them involved in a conversation. I’m not a big person about marketing materials. I’m not a big person about talking about a ton of my past experience. I figure that at the point that they called me and invited me to have the opportunity to come in, they knew enough about me to think, “OK, this is a lawyer we could see hiring.”
Stephanie Francis Ward: I’m Stephanie Francis Ward, and when we return, my guest Tom Goldstein, a U.S. Supreme Court lawyer who also runs the popular SCOTUSblog, will tell you about his approach to business development. It’s one that’s been both unconventional and successful.
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Stephanie Francis Ward: Are there unique challenges to marketing a U.S. Supreme Court Practice?
Tom Goldstein: Well, I’m sure that every practice has its challenges, but Supreme Court practice definitely has them, too. Here are some examples: The first is, you’re really marketing to an indeterminate number of would-be clients because the Supreme Court takes cases from all over the country on every kind of question of federal law, and we represent plaintiffs and defendants, and even sometimes governments. And so, there’s not one group of people that we might be marketing to.
Another issue is that it’s not even clear to some people that this practice ought to exist or needs to exist, because if you do appellate work, than you’re able to–and certainly are entitled to–practice in front of the U.S. Supreme Court. Many great briefs are written and arguments are done by people who aren’t Supreme Court practitioners. And so the work that we do is sometimes not even regarded as something that anybody would want to buy.
A third one is that the lawyers who do have the case below, really do have a very strong incentive sometimes not to bring in Supreme Court counsel, because it’s their opportunity to argue a Supreme Court case potentially. Another is that it’s such an intensely competitive practice now. When I started in 1998, it really wasn’t. But now, there’s still the same 80 or so cases, but there are 30 or so law firms that say they have a Supreme Court practice and are actively looking for cases. There are probably only about 40 or 50 paying-client opportunities for the petitioner or respondent in all of those cases in total.
And I guess the last one is that the competition is pretty accomplished. You’re talking about Ted Olson and Seth Waxman and Paul Clement and Maureen Mahoney and Greg Garre and lawyers–and many others–who are incredibly well known around the country. And so trying to make your way through that minefield can be a challenge.
Stephanie Francis Ward: I’m curious–correct me if I’m wrong–but it seems like your firm, you market yourself more with the SCOTUS practice, but you also do appeals, right?
Tom Goldstein: Sure. Well, to be perfectly honest, we’ll do whatever we’re hired to do. Stephanie Francis Ward: Well of course.
Tom Goldstein: Exactly, right?
Stephanie Francis Ward: What I wanted to ask you was, have you thought about–or do you–is part of your sell, “we can take you from the appeal–we can take you through all the appellate process”?
Tom Goldstein: It is. When we get approached to do Court of Appeals’ cases, sometimes with the client’s eye, I’m going up to the Supreme Court. So for example, a couple of terms ago, I did a case for IMS Health, and I have actually argued two cases presenting the same issue for them in the Court of Appeals. And they really wanted it to be able to go up to the Supreme Court. And there are some other cases like that. But Supreme Court review is so rare, and you really don’t know if you’re gonna get Supreme Court review until you see if whatever the Court of Appeals wrote creates a–or implicates a–circuit conflict.
But most of the time, the clients are thinking in baby steps. They want an appellate lawyer, and if they decide to go the Supreme Court, they want a Supreme Court lawyer. It’s not that common for them to look for a package.
Stephanie Francis Ward: And you do really market your practice as a Supreme Court lawyer not as an appellate lawyer, would you agree?
Tom Goldstein: Yes, absolutely. I enjoy it the most. It’s what I’ve thought the most about, and it’s what differentiates me as a lawyer, I suppose.
Stephanie Francis Ward: I’m curious, have you ever thought, “Gosh, I might be able to bring in more money in the door if I marketed myself as somebody who does a Court of Appeal case and a SCOTUS case?” Put some associates on the Seventh Circuit case you stepped in. Is that something you’ve thought about?
Tom Goldstein: Yeah, but your point about associates is a really good one. It’s in the nature of an appellate practice that you do the work in very small teams. This is not a practice that you really leverage out. If you’re a trial lawyer, and you might have some associates for working on discovery, and some associates on motions and the like, then you’ve built a team; and that’s why that kind of practice can be so valuable to a law firm.
When you’re talking about writing a brief in any court, whether it’s a trial court, or Court of Appeals, or the Supreme Court, you’re not talking about very many bodies, and so my time is relatively limited. And so if I’m given the choice between doing any number of five cases, I’ll take the one, generally, that’s in the Supreme Court.
Stephanie Francis Ward: And the way your firm is staffed, is there’s the three partners and then you have two counsels, right?
Tom Goldstein: That’s true. But Amy, who’s my wife and a partner in the firm, is really spending almost all of her time on SCOTUSblog right now. And Kevin Russell, who is a partner, spends a lot of his time during the year teaching at the Stanford Supreme Court Litigation Clinics. So in terms of litigating partners, it’s principally me.
Stephanie Francis Ward: Can you tell me, do you have a sense of how much business you’ve received in dollars or percentage from the blog?
Tom Goldstein: It’s hard to tell. The blog really is what I’m known best for now, because it had the great good fortune to have a lot of readers. And in the wake of the healthcare decision, for example, a lot of people came to know the blog. I would say that the blog contributes to 75 percent of the Supreme Court work that I get hired to do. So it’s very important, even though it’s indirect. Even though we don’t discuss the firm’s cases on the blog, for example.
Stephanie Francis Ward: And why is that?
Tom Goldstein: Well, we really decided that the original model of the blog was just a marketing tool, and so we would hype our own work. We’d talk about the cases we were doing, and the briefs that we had filed, and the results that we got. That model just was not successful. People weren’t moved by that. But instead–and it made the blog less objective. The blog was almost transparently a marketing tool–but instead, what we do now is really try and shape the blog as a public-interest tool where we write objectively about what’s going on at the Supreme Court.
People seem to really appreciate that; respond to it; respect us for it. But to do that, we have to step away from our own cases. If we were writing about our own cases, I don’t think people would really trust that we were giving them the straight scoop, so we recused from all of that. And it’s actually worked as a business model for the first time.
Stephanie Francis Ward: I’m curious, was it hard to reach that conclusion? Because I think you’re absolutely right: Most people don’t want to read a blog that’s just about you promoting your firm. Nobody wants to read that, except maybe you and your wife or your mom. But I would think, too, you’re like “Wow, I wanna do this for promotion, but I’m not promoting myself.” How did you–it seems like it’s obvious, but it might be a hard conclusion to reach.
Tom Goldstein: It wasn’t that conscious. What was conscious was recognizing a.) that the first model wasn’t working; b.) that we really wanted to provide a public service, and we couldn’t do that while we were marketing the firm. And so we had to separate the two. We had to have the law firm, and we had to have the blog and the two couldn’t meet. And it was only by good fortune that it turned out that there was a marketing benefit to that, incidentally. It wasn’t a plan. We didn’t set out to say when we changed the blog, “OK, here’s what we’ll do. We’ll present an objective blog that will be about other people’s cases, and we won’t write about our own stuff, and then that will help the law firm.”
We had essentially given up on the blog as a tool to help the law firm, and it turned out we kinda backed into a better approach.
Stephanie Francis Ward: I’m curious–I don’t know how much you chat with lawyers outside the appellate arena–but have you heard of other law firms that have blogs, and have decided to do that as well if they say, “We’re not gonna write about our cases”?
Tom Goldstein: No. I don’t think that’s a common approach. I think that–there are people who are simply expert in a field, and they just write about everything in the field. And there are some really great patent blogs that I’m familiar with, for example. And so there, I don’t think the people are focused on their own cases.
But I do think that blogs at major law firms tend to be managed by marketing staff. The material may be written by lawyers, but the marketing staff is very heavily involved, and the marketing staff kind of grew up professionally thinking, “We need to be talking about the great things that we’re doing.”
And so culturally, I don’t think that big firms tend as much to step away, or at the very least, don’t go to the extremes we have of just saying nobody from the law firm will write about any case of the law. They may try and be objective and thoughtful about an entire field, but they will look for opportunities to write about their own work.
Stephanie Francis Ward: It may not be fair to blame that entirely on the marketing staff because I can see where you might have partners who take themselves quite seriously and want to write about themselves, or have an associate write about themselves.
Tom Goldstein: Right, but–fair enough–but I will say that if the marketing staff were kind of providing the direction from it, it would be very unusual for a law-firm marketing person to give the instruction, we need to have a rule that says, “We won’t write about our own cases.”
Stephanie Francis Ward: Tell me, for your practice today–where you are today–do you still need to go out and market yourself? Because I think sometimes people forget that maybe they still do, even though they are successful.
Tom Goldstein: I don’t know that I’m successful, but I will say that I do need to–I really try and stay involved in this community. The blog is a good tool, obviously, for keeping our names out there, newspaper articles and the like. And in particular, when I’m trying to get involved in cases that are going to be argued at the Supreme Court where there’s so few of them as opposed to cert petitions where there are a lot of them, then I, not infrequently, feel the need to go out and approach the lawyers in those cases. Not always.
I would say that about half the time for my arguments, those are cases that I made an effort to get involved in. But when it comes to the paying work of the firm, it’s probably only 10 percent.
Stephanie Francis Ward: And for when you ask to be involved, how do you go about doing it? Do you meet them in person? Do you call them on the phone? Will it be casual?
Tom Goldstein: I do really try and have as non-threatening approach as possible, because I think there’s a felt sense by the lawyers that frequently a Supreme Court counsel’s gonna come in and try to take over the case. And that’s not what I’m trying to do, and I want to make sure that that relationship starts well. I will almost always call the person. I find that works a lot better than emailing them. And if there’s anybody I know who knows them, then I’ll try and get an introduction to them.
Meeting in person is the best of all worlds, but the difficulty with having a practice that comes from courts all over the country, is that it’s often impractical.
Stephanie Francis Ward: What do you think about for your decision to take a case that’s not going to pay that much, if at all, in terms of how that will figure you in with clients who will pay you?
Tom Goldstein: There are industries where I will hesitate more to take on a non-paying case that will put me in conflict with an entire body of potential clients.
Stephanie Francis Ward: Can you give me an example of an industry?
Tom Goldstein: Insurance. Or retail, where we have relationships where clients may come to us at any time–and who we’ve done work for in the past, so it’s not hypothetical. And I don’t want to either foreclose my doing more work for them, or take a position that they will be frustrated with me about for a pro-bono client. So that’s really the only time when I’m really concerned about that. In general, I tend to believe that the balance between paying and pro-bono clients works its way out, and that doing pro-bono work is both an opportunity to do good, but also is an important vehicle for getting argument opportunities.
Stephanie Francis Ward: Have there been times where there’s been a pro bono case that you and your partners have thought, “Gosh, we would love to be involved in that case,” but you’re like, “Nope, just wouldn’t be worth it because you’d cut out too many insurance clients” or whatever?
Tom Goldstein: Yeah, there have, absolutely. It doesn’t happen a lot, but that certainly has happened.
Stephanie Francis Ward: Let’s talk about once you get the initial connection, and preparing for a so-called “beauty pageant” where you meet with the potential client and try to convince him to hire you; how do you prepare for those meetings?
Tom Goldstein: I really try and do all the work myself rather than asking somebody else to do it for me, because I think the would-be client is going to expect me to do the talking in the meeting. I really try and develop a theory of the case; how I would present the case on appeal or in the Supreme Court; what, if anything I would do differently. I really try and learn a lot about it, so that I can go in without any notes, and talk if I need to for hours about the case, and the issue that they’re confronting, and the problems that they have, and the strengths and weaknesses. I try and get them involved in a conversation.
I’m not a big person about marketing materials. I’m not a big person about talking about a ton of my past experience. I figure that at the point that they called me and invited me to have the opportunity to come in, they knew enough about me to think, “OK, this is a lawyer we could see hiring.” And I really try and build a rapport with the people who are the decision makers. So it’s a very intensely personal process.
Stephanie Francis Ward: And have there been times when you’ve gone to one of these meetings, and they’re surprised that you’re talking to them about pretty heavy appeal, and you don’t have notes?
Tom Goldstein: I don’t know if they’re surprised or not. It tends to work really well. If they really feel like you’re the person who’s a supposedly busy private practitioner, and you don’t even have the case, and you’ve obviously spent the time to know a great deal about it, I think they really believe that you’ll do that work for them as their appellate lawyer. And they can develop a sense of whether they think you are a good or bad at it; understand their case; understand them as a client; understand their problems.
Whether they’re surprised or not, I don’t have the sense that most lawyers who are involved in a beauty contest spend that kind of personal time. Rather, they tend to go in and kind of pitch themselves and start a conversation about the case. I really want the would-be client to think about this as a real substantive conversation about the case, and feel like they can continue the conversation by hiring me.
Stephanie Francis Ward: And do you think that kind of comes back to maybe the heart of good marketing? “It’s not about you?”
Tom Goldstein: Well, it certainly isn’t about you.
Stephanie Francis Ward: I mean, it is at the end of the day, because it’s about you getting paid. But I mean, really!
Tom Goldstein: Or hired in some way. The lawyer-client relationship is one of incredible trust. You’re being brought in. They frequently don’t know you, and so you have to build a personal connection. It is sales. Lawyers aren’t salespeople. They went to law school, not to business school, or just didn’t go into a sales job. They like to think about and write about problems. They don’t like to–this is an over-generalization–obviously they frequently don’t like to think in the terms of what it is the client is trying to figure out in hiring someone. And lawyers often do miscalculate, I think, and believe, “Hey, what I should do in this is talk about myself, and why I’m a good lawyer, or why we have experience in the area.”
As I mentioned, I just think the client knows enough about that at the point that they decided to bring you in in the first place. And what they are really interested in is how you can apply that skillset and that reputation to their problem.
Stephanie Francis Ward: I’m curious, based on what you’re telling me, did you ever have any sales jobs as an undergraduate or high school?
Tom Goldstein: Yeah. In both middle school and high school, I went out and got a job selling computers.
Stephanie Francis Ward: Would you say that you kind of picked up some of this during that time?
Tom Goldstein: It’s very hard for me to tell. I certainly had that experience of knowing what it is to deal with someone who’s gonna be spending a lot of money; having to make a choice; having multiple options; needing to be persuaded; and selling something there that wasn’t talking about myself–it was talking about a product. It’s hard to make the connection between that point and this one, but I’m sure it did influence me.
Stephanie Francis Ward: Well, it’s convincing people that you have something they want.
Tom Goldstein: It is, and that you care about them, and that you can fix their problems.
Stephanie Francis Ward: And they can trust you.
Tom Goldstein: Yeah, absolutely.
Stephanie Francis Ward: Let’s talk about referral networks, because I think those are incredibly important, especially for small firms and solos. How have you built up your referral network?
Tom Goldstein: It’s certainly taken a lot of time. It’s hard in what I do, and it’s not my strength, to be perfectly honest. So the difficulty with a referral network when it comes to Supreme Court work is that the referrals–because it’s the whole country, and it’s every kind of question of law–there are really two kinds of referrals: One is referrals from other firms. Well, other firms that did the appeal are very unlikely to believe that they need to refer out the Supreme Court work. So you start with that difficulty.
There are conflict-based referrals, which are common in the law of course, but those tend to involve big law firms, and they are lawyers who work in the solicitor general’s office or a clerk of the Supreme Court and they have lots of other colleagues with whom they’re closer than me. And for me to develop a referral network, it really has been a situation where over the course of ten years or so, I have sent business to people, and they are sending business back. Or occasionally, they know I can take cases that don’t involve just being on the defense or on the plaintiff’s side. And I suppose the most significant referral network for me is people for whom I’ve worked in the past.
So I do have lawyers who have, over the course of every three or four years, a case that has to go up to the Supreme Court, and they are kind enough to come back to me. But I think it’s more common–because I absolutely agree with you in a small firm environment, that these referral networks are really important–that if your practice isn’t so dispersed that you have a set of lawyers who don’t do the same thing as you, they will send work to you once you demonstrate that you send work to them. My difficulty is that the people who had the case last viewed themselves as perfectly able to do the case again, the appellate lawyer doing it in the Supreme Court. And so those relationships are less common.
Stephanie Francis Ward: And the segue which I think is kind of related, let’s talk about talking to the press, and getting some marketing that way. Because I think there’re some lawyers who will talk to the press a lot and other lawyers think they’re complete schmoes. But there’s other lawyers that they’ll say, “Oh, yeah, he’s an expert, they’re gonna go to him for his SCOTUS stuff.” How do you become the expert as opposed to someone who will talk to any reporter any time?
Tom Goldstein: Well, I really try very hard to stay in my lane, within my expertise. It’s really common for me to respond to a press inquiry by saying, “I just don’t know enough about that to talk about it.” I know a lot about one thing, and that’s the Supreme Court. And sometimes a reporter who’s anxious or on deadline, or is just looking for someone to help them will come with all manner of federal law questions about some big case going on. And could I make up something to say? I’m sure, but I think it goes to your point that you want people who are reading something that you say, they think, “OK, that’s something he really knows a lot about, and he doesn’t really regard himself as just somebody who can talk about anything in the law,” because I certainly don’t.
There are a limited number of things that I’m really confident to talk about. So I’ve really tried to stay focused on that. At the same time–I grew up in the Supreme Court press corps. I was Nina Totenberg’s intern for two years. Lyle Denniston, who’s covered the court for a long time, works with us on the blog, and I’ve really tried to understand how those folks operate. And so it’s very important to me that–you know, I never am reaching out to the reporters saying, “Hey, can I talk to you about x or y?” But when they’re good enough to ask me, I try to be incredibly responsive.
I think that a lot of lawyers have a kind of uncertain enough relationship with the press that they don’t really go out of their way to make themselves available in that sense, and don’t respond immediately, and don’t offer to go look something up for the reporter or something like that, because they’re worried about–understandably worried about–tripping up. And my approach is that when it’s about something in my field, I really do look for those opportunities.
It was really important in the development of my practice. I got my first cases because I was in the press. There’s no question about it. That’s how I was able to tell would-be clients that I knew what I was talking about is that I had been cited in the press because I–the first Supreme Court cases I did were the first cases that I argued in any court.
Stephanie Francis Ward: Bush v. Gore was one of the first big ones you worked on, right?
Tom Goldstein: Well, I worked on that, sure. By the time of Bush v. Gore, which was the second year of the practice, we actually already had 10 percent of the Supreme Court’s merits docket. I argued a case when I was a fourth-year–I guess maybe two cases when I was a fourth year?–right around that time, and I had just–those predated Bush v. Gore by a couple of years–and I had just gone after the cases. I just called the lawyers below to try and get involved.
Stephanie Francis Ward: Do you have advice–for someone who didn’t intern for Nina Totenberg–how to let the press know you’re out there? I’m assuming you probably never sent out generic press releases saying you’re an expert on x and y? I don’t think those work very well, but I certainly get a lot of them.
Tom Goldstein: Yeah, I think what you need to do is, you need to figure out some very specific things that you can really credibly say, “OK, I’m an expert in this.” And then you have to kind of steel yourself to say, “All right, if I’m gonna go to this trouble, I’m actually gonna be willing to talk on the record about it. And I’m also gonna be willing to spend some time with this reporter to explain it.”
Then find the reporters who are writing about that issue, and call them up and say, “Hey, look, my guess is at some point you’re going to write about x again, and you may want somebody either to just help you figure it out, or to give you a comment about it. I’d love to talk to you about it. I’ll spend the time with you on it. I’ll make sure to respond to you.”
It’s not unlike the client situation: building that rapport, that trust where the person says, “OK, I’ve made a note here. When case x comes up, I’ll give this person a call and see how it works out.”
I agree that the kind of generic press release is not the way to go. I get them now a lot for SCOTUSblog, and I cannot hit delete fast enough.
Stephanie Francis Ward: That’s everything I wanted to ask you, Tom. Do you want to add anything else?
Tom Goldstein: No.
Stephanie Francis Ward: Thanks so much for your time.
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Edited at 4:55 p.m. to add transcript.