Commodity: a good or service whose wide availability typically leads to smaller profit margins and diminishes the importance of factors (such as brand name) other than price. (Merriam-Webster)
Commodity: A commodity is a basic good used in commerce that is interchangeable with other commodities of the same type. (Investopedia)
Are legal services a basic good like pork bellies, the providers of which can be swapped in and out? We don’t really care who the pig is, does it make any difference who the lawyer or the law firm is? Are my legal services interchangeable with your legal services?
Maybe the folks who do 20 bankruptcies or no-fault divorces a day are offering commodities, that hundreds (or thousands?) of other attorneys could handle with the same results. And then at the other end of the spectrum are the guys like Theodore Olson. Is one experienced expensive SCOTUS advocate as good as another? Probably not. There are certain people you just have to have for certain things. Like if you want to sue a celebrity for assault: there’s Gloria Allred, and then there’s everybody else.
However, if a client wants a big-name firm with smart attorneys, well, there’s more than one firm that can meet that criteria. If IBM wants to make a change from whoever it’s using now, it’s not going to consider a storefront lawyer in suburbia (or a storefront lawyer anywhere), but there is more than one firm that could handle the work.
I heard a story, which may be apocryphal, about Samsung when it got sued by Apple. Obviously, a high-stakes, billion-dollar, bet-the-company lawsuit. Samsung gathered in one room the top five law firms that could handle this sort of thing, and told them, “We are going to use one of you for this litigation. However, we don’t give a [darn] which one of you it is. So we’re going to use the one that gives us the best price. Now everyone submit their bids.”
So within bands, legal services are a commodity. Actual commodities have these bands as well: corn is a commodity, yet when I go to Whole Foods, the corn is for some reason much better than at the small, crowded, all-night grocery down the street. (Note I haven’t tried the pork bellies at either.)
I used to date an architect, who told me her work had “flair,” so she wasn’t right for every client. (Evidently she couldn’t do “no flair.”) I’d like to think that my contracts are great, but saying they have “flair” might be pushing it. In fact, there aren’t many corporate law clients who want any semblance of “flair.” Normally they just want someone who gets the job done, and they get nervous if you start doing something that hasn’t been done before.
Like just about every other lawyer, except maybe the telephone book/screaming website people, nearly all of my clients are referrals. I don’t think they’re telling others: “That Gary. His contracts have flair!” They’re probably saying, “He’s a nice guy, gets the job done, is as responsive as he can be.” That’s probably the best I can hope for.
Of course, if legal services are a commodity, then maybe you could say any professional service is a commodity. I remember a story a few years ago about a doctor who performed a c-section and was so impressed with his handiwork he signed his name, right there on the woman’s belly. I bet he didn’t think his services were a commodity!
Anyway, back to law, where we’ve settled that for most of us legal services are, in fact, a commodity. So if we’re not Paul Clement or Ted Olson, what do we do? Do we despair that we chose a profession in which our time is seen as nothing but a commodity?
Of course not. We go out there and be the best pork belly we can be.
Gary J. Ross founded Jackson Ross PLLC in 2013 after several years in Biglaw and the federal government. Gary handles corporate and securities law matters for venture capital funds, startups, and other large and small businesses, as well as investors in each. You can reach Gary by email at Gary.Ross@JacksonRossLaw.com.