NOTE – This is a reprint of an article I recently wrote for The American Trial Lawyer Magazine.

I was catching a connecting flight through Detroit Metro a few months ago. Sitting in the waiting area, I turned to the woman sitting next to me and asked the question that I ask frequently when I am traveling:

“If you needed an attorney, who would you call?”

To anyone who is familiar with attorney TV advertising in Michigan, it will come as no surprise that the woman did not hesitate for a moment, “I would call Sam, of course.”

Welcome to the Sam Bernstein Brand, a brand that has ruled Michigan personal injury law for several years.

If you learn nothing else about marketing, here is the one fact you should know – Brand trumps everything else.

Everything.

Brand is the royal straight flush of the marketing world.

You can have the coolest TV commercial, the slickest website, the best office location. You can run your drug recall TV ad on the CNN special drug recall news show. You can spend thousands of dollars optimizing your site so it shows up at the top of the Google search results. You can have your picture on the front and back page of the Yellow Pages. Your face can be on the billboard next to the hospital wing for serious accident victims.

You can do all of this but, if you are looking for cases in Michigan, the Sam Bernstein Brand will still beat you.

If you are a parent of young kids, like me, you probably understand the power of brand whenever you are driving and you ask your kids where they would like to stop for lunch. You know that McDonald’s rules the culinary world of most kids. It doesn’t matter if your kids can see a whole block of signage of other attractive fast food restaurants. If your kids are like my kids, they want to go to McDonald’s. It is not only the most recognizable name but also the product that exerts a mysterious pull on our kids.

The McDonald’s example points out the difference between “brand” and “Brand”.

We could say that brand with a small “b” is familiarity – everyone knows who you are.

But Brand with a capital “B” is heroin. It is an addiction.

Starbucks is Brand with a capital “B”. Tiger Woods is the only big “B” brand in golf. You may know who Phil Mickelson is (he has brand with a small “b”) but Tiger is the only golfer who will cause casual fans of golf, like me, to search out the golf tournament on TV and waste their Sunday afternoon watching him play.

Curiously, Geico seems like a brand with a small “b”. For as often as I see Geico commercials, I have never found myself compelled to go to their website to get a car insurance quote.

Of course, given the billions of dollars Warren Buffet has made by “overadvertising” Geico, he has proven that even brand with a small “b” is better than no brand at all.

Is Sam Bernstein a brand or a Brand? Would the woman sitting next to me at Detroit Metro Airport feel compelled to call Sam if she really needed an attorney?

At this point, I doubt if Sam cares. He advertises at such heavy levels, he gets all the cases he needs. So what if he overpays for each case. He still turns a profit.

It is hard to go out of business in first place. (If you are tempted want to throw General Motors in my face as a company that was in first place but that is now on the verge of extinction, remember that GM has taken several decades to fall from grace. If your law firm has a run as long as GM did, they will be writing books about you.)

Sam is like the football coach whose team is up by five touchdowns at halftime but who continues to run up the score in the second half. He dominates the Michigan airways so thoroughly that the only question that is left to answer is who is going to finish second.

And, this analogy points out one of the keys about brand. Once you have built a brand, you must continue to feed the brand beast forever. Here is another McDonald’s story to illustrate the point.

Like many companies that sell franchises to local owners, McDonald’s normally charges each franchise owner a sizable fee that is used to fund marketing efforts in the local market. Several years ago, the McDonald’s franchise owners in Tampa, decided that they did not want to give McDonald’s any more money for local TV advertising. Their argument was that the city of Tampa had a McDonald’s on every street corner and that the McDonald’s Brand was so well established, it did not need any more marketing support.

Surprisingly, the folks at McDonald’s corporate headquarters agreed. McDonald’s advertising went off the air for a month. Although sales were flat, they did not fall. The franchise owners felt vindicated.

The experiment did not last another month. In week five, sales declined by 5%. In week six – 12%. In the highly competitive fast food market, such declines are considered catastrophic.

I have argued before that the level of attorney TV advertising is reaching brand-building levels in many cities across America. Once a #1 brand is built, as long as it is maintained, that law firm enjoys a huge competitive advantage. And brand is built by domination. You don’t build brand by being the first to the finish line. You build it by lapping your opponents.

Is there a dominant brand in your market? Here are the Trost Dominance Criteria to tell if a firm in your market is advertising at sufficient levels to build a dominant brand:

• Look at the attorney TV advertising in your market (I don’t care how hot the internet is right now, TV is still king when it comes to building a dominant brand.)
• Pick a recent month, quarter or year and find out how much overall attorney TV advertising was done during that time period. (I usually look at target rating points, TRPs, adults 25-54, rather than money spent to get the best picture.)
• Make a pie chart that includes a pie piece for each of the top 4-5 attorney TV advertisers and a pie piece for everyone else. The percentage of the pie that each law firm has is called their “Share of Voice”.
• TROST DOMINANCE CRITERIA – If the #1 law firm is averaging more than 250 TRPs per week (adults 25-54), has a 25% or greater piece of the pie and is double the percentage of the #2 law firm, you are looking at a law firm that is building a dominant brand.

Here is an example – Sam Bernstein in the Detroit TV market the first quarter of 2008 market:

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Let’s see how Sam does against the Trost Dominance Criteria:

Average more than 250 TRP’s per week (Sam averaged a whooping 457!)

Have a 25% share of voice (Sam has a 40% share of voice!)

Double up on the nearest competitor (Sam has tripled up!)

This is off-the-charts dominant. Sam easily met and exceeded all the criteria.

Now, let’s look at another Midwestern city about the same size – Minneapolis – during the 1^st quarter of 2008.

Let’s see how Robert does against the Trost Dominance Criteria:

Average more than 250 TRP’s per week (Robert didn’t come close – averaging just 91)

Have a 25% share of voice (Close at 21%)

Double up on the nearest competitor (Close again but not there yet.)

Without intending any disrespect to Mr. Hoglund, this is not the type of advertising that will build a dominant brand. I am willing to wager a lot of money that, if you are waiting to catch a flight in the Minneapolis St. Paul Airport and ask the woman sitting next to you who she would call if she needed an attorney, she will not say “I would call Robert, of course”.

Here are some things that stick out for me about Minneapolis:

• The entire Minneapolis bar averaged 424 TRPs per week. That means Sam Bernstein is running more ads just by himself than the entire Minneapolis bar!
• The number four advertiser in Minneapolis is a Boston attorney, James Sokolove! If you combine all the national network cable advertsing that Sokolove runs, he is probably the #1 attorney advertiser in Minneapolis.

So, which community is better served by its bar – the city where a well-respected attorney has spent the money necessary to build a brand that people can easily turn to in a time of crisis or the city where no law firm has stepped up and devoted the resources necessary to build a trusted brand?

I vote for Detroit. But, don’t take my word for it. Call Sam.