(Unique Value Proposition) & Differentiation are Red Herrings
When Jack Trout and Al Ries introduced the concept of differentiation in their 1981 book “Positioning: The Battle for Your Mind,” it revolutionised marketing thinking. Their central thesis – that brands must occupy a unique position in consumers’ minds to succeed – became gospel. Michael Porter later reinforced this in his seminal work on competitive strategy, arguing that differentiation was one of only three ways to achieve competitive advantage.
And didn’t every consulting firm and marketing agency embrace this enthusiastically? For four decades they’ve been charging astronomical fees helping companies, including a swag of law firms “differentiate or die” as Trout would later put it.
Here’s the Rub
Let me tell you about a conversation I had recently with the managing partner of a solid law firm. He proudly showed me their new positioning statement: “We provide innovative legal solutions with unparalleled expertise and client-focused service.” I had to break it to him – this wasn’t differentiation. This was exactly what every other law firm claims. And, this is not surprising because simply put, a gamut of our work with law firms starts from a MP or Practice Manager with a conversation beginning, “we really like the website of ABC Lawyers.”
And here’s the problem: When everyone tries to differentiate in the same way, no one differentiates at all.
The legal sector is perhaps the perfect example of the futility of differentiation as a strategic priority. For decades, law firms have attempted to position themselves as different from their competitors. They’ve hired expensive consultants, conducted lengthy partner workshops, and produced elaborate brand strategies – all in pursuit of that mythical unique selling proposition.
But as Professor Jenni Romaniuk and her colleagues at the Ehrenberg-Bass Institute have shown through decades of empirical research, the pursuit of differentiation is often a misguided endeavour. The evidence tells us that what actually drives brand growth isn’t being different – it’s being distinctive and memorable.
Porter and Trout weren’t wrong about differentiation in product categories where genuine functional differences exist. If you’re selling cars or smartphones, meaningful differentiation is possible. The problem is that their theories have been misapplied to categories like professional services where functional differentiation is virtually impossible to achieve or maintain.
Let’s look at the evidence.
First, examine the websites of the top 20 law firms in your category. You’ll find the same carousel of buzzwords: innovative, client-focused, expertise, global reach, technical excellence. It’s like they’re all reading from the same thesaurus of legal marketing clichés. The problem isn’t that these firms aren’t excellent – they may well be. The problem is they’re trying to claim excellence as a point of difference when it’s actually a category entry requirement.
I’m not really into consulting with a commercial law firm who do shoddy work and nor is every other person on the planet.
The Ehrenberg-Bass Institute’s research shows that rather than pursuing differentiation, brands grow by building mental availability – ensuring your brand comes to mind when potential clients are in buying situations. For law firms, this means being mentally available when someone needs a specific legal issue resolved.
This is what distinctiveness is all about. Unlike differentiation, which focuses on being different from competitors, distinctiveness is about building and maintaining unique brand assets that make you easily recognisable and memorable. Think of distinctive assets as the visual and verbal elements that trigger recognition of your brand: colors, logos, symbols, characters, or even particular phrases.
In Australia, a few years ago, the national compensation practice, Shine Lawyers did a stellar job with their key code, “Right Wrong.” Whilst not as prominent as it once was, it’s still a cracking tag!
Interestingly, using the same example, their use of the bright orange from their brand palette, then oddly, but uniquely framing people around orange boards or stages, is hard to interpret and find meaning, but perhaps that’s the point. It’s distinctive!
Romaniuk emphasizes distinctiveness as a critical factor for brands to stand out and be easily recognised.
In relation to shaping something “off-topic” in brand codes, Romaniuk discusses how brands can adopt seemingly unrelated or unexpected elements to achieve distinctiveness, as long as they consistently build associations with their brand over time. For example:
- Geico’s Gecko: While a gecko has no inherent connection to car insurance, Geico successfully leveraged the character as a unique and memorable mascot. The name similarity (“Gecko” and “Geico”) helped reinforce this off-topic element as a distinctive brand asset.
Why Off-Topic Works:
- Surprise Factor: Unusual or unrelated elements stand out because they break expectations.
- Memorability: An “off-topic” asset (like the gecko) can be easier to recall because of its uniqueness and playful nature.
- Associative Links: Through repetition and consistency, consumers begin to associate the off-topic element with the brand. Over time, it becomes a mental shortcut.
Romaniuk emphasizes that distinctiveness is not about directly communicating the brand’s category or product but about ensuring easy and quick mental recognition. Off-topic brand codes can be effective if they are:
- Unique: No competitors use a similar asset.
- Consistent: The asset is repeatedly linked with the brand across touchpoints.
- Memorable: It creates a strong visual, verbal, or conceptual impression.
The Geico gecko exemplifies how shaping an unrelated or “off-topic” asset can become a powerful tool for brand distinctiveness when applied consistently. This approach aligns with Romaniuk’s broader strategy for building assets that “cut through the clutter” and ensure brands remain top of mind.
So what should law firms do instead?
1. Stop wasting time trying to be different
Accept that you’re in a category where functional differences between competitors are minimal and difficult to maintain. Instead, focus on being consistently good at what you do. Most clients aren’t looking for a radically different law firm – they’re looking for a competent, reliable one that comes to mind when they need legal services.
2. Identify and invest in distinctive assets
Audit your current distinctive assets. What visual or verbal elements are uniquely associated with your firm? What has the potential to become distinctive over time? The key is to find assets that can be owned by your brand and consistently used across all touchpoints.
3. Build and protect these assets over time
Once you’ve identified your distinctive assets, use them consistently and protect them zealously. Don’t change them just because a new marketing director wants to make their mark. The power of distinctive assets comes from their consistent use over time.
4. Focus on category entry points
Instead of trying to be different, focus on being present and memorable in the moments that matter. When do clients typically need legal services? What triggers these needs? These are your category entry points, and they should guide your marketing efforts.
5. Build mental availability
Invest in reaching all category buyers, not just your current clients. The Ehrenberg-Bass Institute’s research shows that growth comes primarily from acquiring new clients, not just servicing existing ones.
The future of law firm marketing isn’t in futile attempts at differentiation. It’s in building distinctive assets and mental availability. As Professor Romaniuk’s research consistently shows, brands grow not by being different, but by being distinctive, memorable, and mentally available when it matters.
For law firm marketing leaders reading this, I have a simple challenge: Take your current marketing plan and highlight every initiative aimed at differentiation. Now ask yourself: Could these resources be better spent building distinctive assets and mental availability?
Remember: In professional services, being different isn’t nearly as important as being distinctive and coming to mind when clients need your services. That’s not just my opinion – that’s what the evidence tells us.
And if you’re still not convinced, I have one final question: Can you name a single law firm that has genuinely differentiated itself in a meaningful way?
