In defense of trial lawyers advertising for clients

October 27, 2015

The U.S. Chamber’s Institute for Legal Reform came out with a new study Tuesday, highlighting what its president, Lisa Rickard, called “some of the most sophisticated and relentless marketing campaigns in our society” – television and internet advertising by plaintiffs lawyers on the prowl for personal injury clients.

According to the study, by political advertising specialist Ken Goldstein of the University of San Francisco, trial lawyers are not only spending considerably more than they used to on TV ads – from $531 million in 2008 to a projected $892 million in 2015 – but also spending more wisely, buying ad time in desirable slots. Plaintiffs’ lawyers have also poured money into Internet advertising. Goldstein’s study said eight of the ten most expensive keywords of 2015, on a cost-per-click basis, are focused on mesothelioma, the deadly asbestos-linked cancer.

There is lots more detail in the ILR report, including an account of how some firms build traffic to their main websites by creating local feeder sites, enhancing their search engine optimization; and how plaintiffs’ lawyers “converse” with legal journalists on Twitter to “establish credibility and publicize lawsuits.”

The report uses loaded verbs such as “manipulate,” “engineer,” and “take advantage” to make it seem as though trial lawyers are doing something wrong in advertising for clients. Rickard doesn’t specifically say that in her press release but asks, “Is this the kind of civil justice system we wish to have?”

She was presumably being rhetorical since I’m guessing that the Chamber’s membership isn’t happy that plaintiffs’ lawyers are effectively spreading the word about litigation against asbestos defendants, pharmaceutical companies and medical device makers. But I’ll answer her rhetorical question as if it were posed in earnest: Yes, this is the kind of civil justice system we want. Civil justice is served when potentially injured people have access to information delivered by lawyers who are subject to real consequences if they break the rules.

To start with the obvious, lawyer advertising has been blessed by the U.S. Supreme Court, which assured lawyers of their First Amendment rights to commercial speech in the 1977 decision Bates v. State Bar of Arizona. As Justice Harry Blackmun wrote in the Bates opinion, advertising is how suppliers in a free-market economy reach potential consumers. Without it, he said, “the not-quite-poor and the unknowledgeable” might not be informed of their legal rights. “Although advertising might increase the use of the judicial machinery, we cannot accept the notion that it is always better for a person to suffer a wrong silently than to redress it by legal action,” Blackmun wrote.

At the same time, state bars retain the right to regulate lawyer advertising and to police all forms of it, whether attorneys are running lurid TV ads during the Super Bowl or just claiming expertise in a particular practice area or quoting a favorable judicial opinion on their website. Since lawyers can’t practice without the approval of state bars, they put their livelihood on the line when they advertise. That’s a strong incentive to stay within the lines.

Plaintiffs’ lawyers who spend heavily on ads also have a financial incentive only to bring legitimate claims. In contingency fee litigation, they only get paid when they win. Yes, we all know of the many instances in which trial lawyers have figured out how to use the leverage of sheer volume to their advantage, especially in 1990s asbestos litigation. But nowadays, with long experience in managing consolidated litigation, U.S. courts have gotten a lot better at making sure that quantity does not trump quality.

If the U.S. Chamber (or anyone else) can show me empirical evidence showing an increase in the rate of dismissed claims accompanying the rise in legal advertising, I’ll believe that ads generate baseless cases. But if those TV and Internet ads are generating more legitimate suits, they are serving justice.

My concern is the increasing involvement of non-lawyers in generating personal injury cases. I’ve spent a lot of my spare time over the past 10 months, during workdays and off the clock, reporting on the evolving state of generating mass-tort leads. I’ve Skyped with a dozen operators of small offshore call centers who say they make money by cold-calling potential personal injury clients and selling hot leads to non-lawyer case brokers. Those brokers, in turn, verify the leads and resell them. Before a lead turns into a law firm’s client, case generators and brokers may already have made thousands of dollars – before the client (or the client’s actual lawyers) receive a penny. And state bars have no authority over lead brokers and offshore call centers.

When people who have suffered an injury become commodities, the justice system is compromised. I’d love to see the Chamber take aim at that injustice.

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