Most, but not all, of my prospective clients are familiar with how the fee structure in a personal injury case works. With big Philadelphia law firms charging $1,200 per hour, as reported in the Wall Street Journal last week the contingency fee is proven once again as the best deal going for consumers. Under the contingency fee, the client pays nothing until the very end of the case. That’s right, no up front fees or costs. The entire financial risk of the case including the expenses of prosecuting the case are borne entirely by the lawyer. So, while the insurance companies can afford to pay fees at the going rate of $1,200 for partners and $700 for associates, by and large my clients can’t afford those rates.
Although contingent fee contracts are increasingly used by businesses and other sophisticated parties, their primary purpose is to allow plaintiffs who cannot afford an attorney to obtain legal services by compensating the attorney from the proceeds of any recovery. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). The contingent fee offers “the potential of a greater fee than might be earned under an hourly billing method” in order to compensate the attorney for the risk that he or she will receive “no fee whatsoever if the case is lost.” Id. In exchange, the client is largely protected from incurring a net financial loss in connection with the representation. This risk-sharing feature creates an incentive for lawyers to work diligently and obtain the best results possible. A closely related benefit is the contingent fee’s tendency to reduce frivolous litigation by discouraging attorneys from presenting claims that have negative value or otherwise lack merit.
That’s not to say that in a fee petition matter, for instance in a civil rights case, or in a PIP suit against an insurance company for non payment of medical bills, or in an insurance bad faith case, I would not petition the court for fees at the rate that Morgan, Lewis and Bockius is charging, that is, $1,200 per hour. (These fees would be paid by the defendant, not by my client). I would charge $1,200 per hour. I know my work is worth that much.
Let's face it: the general public finds advertising by personal injury lawyers in Pennsylvania and across the country annoying, tasteless, and downright bad. What’s my evidence? I ask clients, prospective clients, vendors, friends. Who can blame them for their opinions? More on that later.
Lawyer advertising is a heavily regulated pastime, party because many in the bar regard it as distasteful. Attorneys should be able to rely on word of mouth, or sober informative ads, to reach clients, and not the sort of provocative, colorful ads common in other industries, the thinking among some bar officials goes. But attorneys, at least in New York, should have a bit more creative license after the Supreme Court on Monday decided not to intervene in a case that concerned the constitutionality of state rules designed to ban attorney ads that contain unverifiable claims, including the use of nicknames or mottoes that imply an attorney’s ability to obtain results.
The post goes on to describe Syracuse lawyer James Alexander's challenge of the New York bar's advertising rules pertaining to lawyers on First Amendment grounds. Alexander had been using in “Heavy Hitters” in his ads and, some would say, other "creative" approaches to market his personal injury practice. The Second Circuit agreed with Alexander and ruled that Alexander had the right to market the way he proposed , on free speech grounds, and in so doing struck down much of New York's proposed advertising limitations on lawyers. The Supreme Court denied to review the Sate Bar's appeal. That's good news for lawyers. It is, of course, difficult for the courts to regulate taste.
Alexander once ran a TV ad depicting lawyers offering advice to space aliens who had crashed their UFO. State bar officials were not amused by the hyperbole. “It cannot be denied,” wrote assistant New York Attorney General Patrick MacRae in his memorandum of law to the court, “that there is little likelihood that [the lawyers] were retained by aliens."
I am not one to judge another lawyer's marketing approach. Like it or not, law firms need to market their practices to the public, or die. I might like red ties. Mr Alexander might like yellow ties.
Lawyers really do tend to be honest in their practice. In the bulk of my cases, particularly those "routine" cases involving reasonable insurance coverage (like automobile accidents and medical malpractice), neither I nor my client believe that the opposing counsel is intentionally lying during the course of the case. Sure, opposing counsel and I may have strong differences of opinion about the underlying facts, and even in those routine cases the defendants are frequently, shall we say, less than forthright in their telling of the facts and their production of relevant evidence, but I generally recognize — and a most of my clients understand and accept — that the lawyer for the other side has a job to do. They are there to zealously advocate on behalf of their client. They didn't witness the event with their own eyes; they know only what their client is telling them, and, apart from knowingly participating in perjury or some other fraud on the court, opposing counsel has a duty to zealously advocate on their clients' behalf, rightly or wrongly.
I couldn’t agree more. Most of the lawyers I deal with in the plaintiff's bar and the defense bar are good, honest, dedicated and hardworking people. The title to Max’s post isn’t the whole story. Zealous advocacy encourages lawyers to present the facts and law of their client’s cases in the light most favorable to them. I anticipate the other side's argument, but I am, of course, duty bound to argue my clients' best case to the judge and jury. In theory, the strength of cross examination and other vehicles that ring the truth from the facts allow the fact finder to render a fair verdict.
But there are no such tools to parse out the truth in lawyer advertising. How is the public to know whether the sometimes inflated statements on the side of a Septa bus, on websites, in a TV ad or in the lawyer ad section of the yellow pages have any real semblance of truth?
Here’s what you can find when you open up the Philadelphia yellow pages to the lawyers section.
Wads of cash with the statement "our firm can get you money for your injuries."
An ad that says "put our winning team on your side." (My questions would be who's part of the team and what's their record?)
An ad that says "150 years combined legal experience." (Who's included in the 150 years of experience? For instance, are paralegals or secretaries? And what the significance of that statement anyway?)
An ad that says "millions recovered." ( Covering what period of time, how many cases and what types of cases? Again, this is an insignificant and misleading statement).
I take a somewhat different approach to the marketing of my legal services. Here are some of my rules. Any form of advertisement or marketing piece ( again, all of which I deem necessary to keep my practice alive!) that comes from me must:
Be accurate.
Be timely and relevant.
Provide the consumer/prospective client /current client/reader of my materials with good, helpful content (This is a big one. I want anyone who reads my blog posts, the content on my web site and my marketing pieces to come away with a certain impression of me. That impression is not that I represent aliens).
I must be willing to take a position when necessary.
I must be willing to go against the grain. (I want my marketing to be different from the ads the general public is used to seeing).
In point of fact real lawyers have blogs, in the words of Kevin O'Keefe. But most lawyers don't! Why? Because writing good, useful content for the general public is a time consuming job that does not lead to a fee. But if you want to provide meaningful legal information to the general public, you have to write, as a lawyer, in blogs, websites, and advertising copy in a way that informs the public about their rights and informs them about your services. That's how I see it at least.
What do you think? How useful or informative are most personal injury lawyer ads?
