The most important tool a trial lawyer can have in his tool bag is the ability to turn down cases. Max Kennerly put it quite well in a recent blog post he wrote entitled How Much Client Contact Should Be Expected In Litigation? Because I handle cases on a contingency fee basis, I am hired to handle each case from beginning to end regardless of the amount of legal work required for each individual case. The client pays none of the costs or expenses to litigate the case unless or until the case is resolved successfully. Some cases settle, some cases go to trial, and some cases are appealed from trial. So, for instance, if a case is appealed from trial, and it takes several years to be finalized, I don't get paid until the end. And that's assuming I win the case.
This is not a retail business. We do not sell widgets here.
I am quite sure that most business owners, including hourly fee lawyers, outside of the personal injury world, would think I am crazy to run a business like this. How, they would ask, can you possibly wait so long to get paid for your work? And with the risk that you may never get paid, and to top that off you may have to spend very large amounts of money in any given case that you may eventually lose, or that you may decide ultimately has no merit.
How indeed. The practice of law is nevertheless a business. No more so than in the personal injury arena. Thus I must scrutinize each case I take. I cannot afford to gamble any more than I already do on my "good cases."
So, that is why I turn down many more cases than I accept.
Last week three good clients with good cases contacted me and asked me to represent them. One was a malpractice case where the hospital had clearly been negligent. The client's injuries however, were not permanent. I could not take that case. Much too expensive to pursue with the potential jury verdict too low. The other two cases were car accident cases in a county where the jury verdicts are historically low, and my clients' injuries were not severe enough to warrant pursuing, given the county where suit would have to be filed.
Mine is a risky business, but a business nonetheless. Anyone, including lawyers, who tells you something different either doesn't know what they are talking about or does not have, in the case of other lawyers, a successful legal practice.
I doubt that there's anybody who wakes up in the morning saying, "gee, I'd sure like to learn more about Philadelphia personal injury lawyers today...that would sure be a great way to spend my day."
So, when it comes to marketing a personal injury law practice, one is generally butting up against a group of potential clients that are generally disinterested in everything I talk about in my blogs, websites, books, and newsletters.
But the problem for a legal marketer is much deeper than that. All lawyers see their customers, a/k/a clients, under conditions of duress. This is particularly true when it comes to personal injury lawyers. That is, our first meeting with our clients is after a car wreck, injury from a doctor's negligence, or the like.
The Fifth Circuit Court of appeals has recently ruled that certain limitations on lawyer advertising is unconstitutional, namely on free speech grounds. ( Public Citizen v. Louisiana Attorney Disciplinary Board United States Court of Appeals 5th Cir., 2011 WL 285226 , 1/31/11). The Fifth Circuit struck down most of Louisiana's restrictions on lawyer advertising, handing attorneys in that state a partial victory. The case will potentially be heard by the U.S. Supreme Court on the issue of the use of monikers and mottos in advertisements.
In the case, the U.S. Court of Appeals upheld a rule prohibiting speech that promises favorable legal results while striking down restrictions on references to past factual results. But here's the interesting part of the opinion. The Court cited the Louisiana Disciplinary Board's telephone survey of the public, which the Louisiana Disciplinary Board used to rely upon in order to restrict lawyer advertising. Here's some of what the survey's conclusion were.
83% of the public did not agree “client testimonials in lawyer advertisements are completely truthful;
26% agreed that lawyers endorsed by a testimonial have more influence on Louisiana courts;
40% believe that lawyers are "generally dishonest;"
61% believe that Louisiana lawyer advertisements are “less truthful” than advertisements for other items or services;
56% of the public thinks lawyer advertising is generally misleading;
59% of the public said that these advertisements decrease their confidence in the integrity of Louisiana lawyers;
It's clear the public is a tough audience. I have no doubt that the Pennsylvania public would give similar responses to such a survey.
However, that's good news to me. My marketing and advertising is designed to provide good, useful, helpful, fascinating information about the law and about the real problems facing accident victims in the metro Philadelphia area. My marketing stands out from the crowd for a reason. I want my customers who contact me and who come in my door, inherently distrustful of the legal industry and under a life situation where they are under extreme stress and probably in pain, to know me, going in. I want them to be educated about me and about what they are facing in their case, generally, from the free information I provide in my marketing materials. This sets me apart from the crowd of Philadelphia personal injury lawyers who use less open methods of marketing their law practices.
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?
The personal injury firm of Mednick, Mezyk & Kredo is seeking to represent people involved in Septa bus, trolley and train accidents and has put on the web a unique website and is using a vanity phone number. MySeptaLawyer.Com is the website and 888-SEPTA-Law is their telephone number. But now the firm of Mednick, Mezyk & Kredo, as well as managing partner Michael S. Mednick, have been sued by Septa for trademark and copyright infringement for using not just the Septa name in its advertising, but also the stylized “S” mark that Septa has as a registered trademark. The firm received a "cease and desist" letter from Septa’s lawyers in March 2010 but the law firm ignored the letter (or, more precisely, from their point of view, decided the cease and desist letter could be ignored because it had no legal merit). Now they have to defend against what appears will be a very costly lawsuit.
Is this bad lawyer advertising? Is it arguably misleading advertising? How is it misleading? The website displays an image of a SEPTA bus which is identical to an actual Septa bus, but with “MySeptaLawyer.Com” at the top front of the bus where the route number would normally appear.
(Max Kennerly of the Philadelphia based Beasley firm, one of my favorite bloggers, argues in his piece of August 9, 2010 that there is no way that consumers would mistake the Mednick, Mezyk & Kredo website which uses the Septa logo as somehow being affiliated with Septa or that somehow they are Septa endorsed lawyers. I agree with Max, and don’t profess to be an expert on trademark and copyright law. Nor am I commenting on the tastefulness of the advertisement. Rather, what also needs to be discussed is not which side will win the trademark infringement suit, but rather how the public may perceive this type of advertising and how Mednick, Mezyk & Kredo wants to be perceived by the public, to the disadvantage of Septa in this instance. The Third Circuit may very well decide this issue, and if Mednick, Mezyk & Kredo wins, other personal injury law firms in major cities with transit systems like that of Septa will copy their approach).
What is more problematic is that the website goes on to state,
SEPTA is considered a State agency and therefore, claims involving SEPTA involve more complex issues than most accident cases. This is because SEPTA is afforded certain immunities under the law, the same that apply to the Commonwealth of Pennsylvania.
In fact, Septa cases are no more or less complex than other accident cases from a legal perspective. All Pennsylvania accident cases involve a myriad of state and federal laws. For Mednick, Mezyk & Kredo to imply that accident victims involving Septa require the special knowledge of their law firm because of the “complexity” of Septa cases is somewhat misleading.
Nevertheless the founders of MySeptaLawyer.Com may be in a wrestling match with a well funded Commonwealth agency that could have easily been avoided by simply changing the appearance of the website.
Max Kennerly, a fellow Philadelphia trial lawyer wrote an interesting blog post a few weeks ago which I'd like to share with my readers here. It puts into perspective the balance which has to be maintained between professional and personal life for lawyers who do the type of work that we do. This is sometimes a rule more kept in its violation than in its practice, as I write this post at 6:30 p.m. on a Monday, after my wife just called asking when she should have dinner ready, and after I finished a very long call with a client.
Here's some of what Max says:
But there are only so many hours in the day. Even if a lawyer obsessed about their cases every hour of the day — which we don't want them to do, since it will cloud their judgment — they still wouldn't be able to explain every hypothetical possibility to the client.
Fact is, if a client wants a perfect lawyer, they need to find one willing to devote their entire practice and personal life to their case alone.
The rest of us imperfect lawyers use two techniques: triage and ticklers.
Triage is just like in the hospitals: we attend to the most pressing matters first. David Dow, who represents defendants on Texas' death row, is one of the most respected lawyers in America, yet his The Autobiography of an Execution concedes letting cases go by the wayside for months, sometimes years. He's a less than perfect lawyer, and understandably so: he can't hunt down every trace of exculpatory evidence for a client whose execution is years away when another one of his clients is weeks, days or hours away from death. My triage in civil litigation doesn't carry as much gravity, but it's no less real: I must prioritize the most urgent matters. I do the same for every client when their matter becomes the most urgent matter.
A "tickler" (part of a "tickler file") is a funny name that lawyers dreamed up for "reminder." Litigators in particular are always on some sort of deadline, either by way of the statute of limitations, a deadline for filing or responding to a motion, the closing of discovery, the submission of expert reports, the preparation for a hearing, the taking of a deposition, or trial. Sometimes, the necessary work can be done in minutes. Sometimes it will take weeks. The ticklers are ways of interrupting the triage to point out that work due later needs to be started now....
If you want someone to teach you the intricacies and contradictions of the law, that's available, just be ready for $60 for each courtesy email. But if you've hired someone on a contingent or fixed fee to do battle, it's not unreasonable for them to contact you only as necessary and as useful for your case.
For my clients, if you haven't heard in a while and don't know the status, please write or call, and we'll put your call in the triage and the tickler file and get back to you. If we don't get back to you in a few days, call again. (Email is even better, since I get it outside the office.) If you've learned of or thought something interesting, please write or call, and I'll consider it. Otherwise, I'll contact you when necessary and useful for your case, such as when you need to review an allegation, prepare for discovery, or consider an offer, and I'll forward you the court filings I made on your behalf.
I try to be available to all of my clients by way of office phone, cell phone, e mail (or of course through contact that clients have with my employees), as much as humanly possible. Some of my colleagues say I am too available, and they opt for a different system. Like Max, if you can't reach me I am probably in court or in a deposition.
Right now, I have to leave to go home and eat dinner.
Former Washington Mutual (WaMu) CEO Kerry Killinger doesn't understand the concept of personal and financial responsibility. He told lawmakers in Washington this week that the reason Wamu went under (the largest bank failure in U.S. history) was because the Fed, Treasury, and D.C lawmakers decided not to save his bank, yet chose to save other banks.
Let's be clear here. Wamu made bad decisions on mortgage backed securities, as did other banks. The fate it suffered was due to poor decision making, poor investment decisions, the rose colored glasses syndrome, hubris and greed. CEO Killinger wanted to make Wamu a "supermarket bank" where borrowers of all types could seek loans. That is not a good policy for a bank to have. All businesses must specialize or fail.(Mine included.)
Senator Carl Levin (D-MI), chair of the investigations subcommittee has stated:
"WaMu built its conveyor belt of toxic mortgages to feed Wall Street's appetite for mortgage backed securities.To keep the conveyor belt running and feed the securitization machine on Wall Street, Washington Mutual engaged in lending practices that created a mortgage time bomb."
Meanwhile, Mr. Killinger has two homes; one in Palm Desert, California (outside of Palm Springs), and one in a a gated community in Seattle, Washington. While CEO of Washington Mutual in 2007, Killinger earned a total compensation of $14,364,883, which included a base salary of $1,000,000, a cash bonus of $0, stocks granted of $10,120,731, and options granted of $2,846,400. In 2008, the year Washington Mutual ceased to exist and Killinger was fired as CEO, he earned $25.1 million in compensation. Killinger received a $15.3 million severance payment in September 2008 as well as a $445,200 lump-sum payment for vacation benefits and an additional $300,669.He has no problem blaming others for the demise of his bank.
This is a blog about personal injury law. So what does the Wamu story have to do with that?
All I know is not watching the bottom line is no way to run a business. As a personal injury lawyer, I have to finance each case I take. I don't get paid until the end of the case. That's the essence of the contingency fee agreement I have with every one of my clients. Careful evaluation of each case is required, or I, like Mr. Killinger, could see my law practice go down the tubes. That's why from a philosophical and practical point of view I only take on meritorious personal injury cases that have a good chance of success. I represent people who have real problems, have suffered real losses and terrible injuries. I have no interest in filing lawsuits on any other type of case. To me, that would be like investing in toxic mortgages. And, to my knowledge, Washington has no plans to come to the aid of the owner of a personal injury practice who didn't pay close attention to the business side of the practice.
Two articles caught my attention today in the Philadelphia Inquirer business section. The first had to do with the number of increased bankruptcy filings. The author talked about bankruptcies among the rich and famous, including that of former Phillie Lenny Dykstra who apparently owes between $10 and $50 million. I am no bankruptcy maven, and there may be very good reasons Mr. Dykstra is pursuing bankruptcy, perhaps to protect his other assets from creditors. Sure seems like he was irresponsible with the large sums he made as a player.
The second story I read today was about the trials and tribulations of large law firms who are having a tough time in the current recession because big firms, as the writer puts it, don’t have coherent business models.
That’s surprising to me. Having a business plan starts with putting on paper your purpose for being in business. For instance, mine is to have clients who are regularly informed of the status of their personal injury case and who are kept informed of the process throughout the litigation of the case. This creates a steady stream of satisfied customers who speak well of me and my firm, simply because they are informed. Of course, I am in business to make money. But, as far as I am concerned, that cannot be the primary purpose of my business. If my primary goal was simply to make money, my clients and their cases would become a secondary concern. It’s a simple business plan that is regularly communicated to my staff.
Incidentally, I have found that doing right by my clients equates to better settlements and verdicts for my clients. My clients are well informed of the risks of both settlement, and trial. This process of constantly keeping my clients educated about their case leads to happier clients, who then refer more clients to me. No surprise there.
At a minimum large law firms need to end the excessive waste of time, and waste of their clients’ money. Hourly billing rates by defense firms with no end in site in the litigation of a case, the filing of needless motions (something I see every day in the personal injury cases I litigate for my clients) is sure to raise the ire of a client, big or small. It’s simply irresponsible money management.
A client came into my office the other day having been in a car accident. She was taken to the hospital by ambulance. Her car was wrecked. The accident was not her fault. She had some questions and some comments which I hear fairly often.
I am not the "suing type".
One of the first things she said was that she was "not the suing type." (She meant that she was opposed to litigation generally, and that there were "other" people responsible for litigation, regardless of whether those "others" included individuals or business attempting to enforce or protect their legal rights). When I come across a client like this, I try to make it clear that litigation is not an easy undertaking. (I call it a "meatgrinder" to drive the point home) and I rarely file suit except as a last resort. I try to politely suggest that categorizing someone as the "suing kind" is nothing more than an urban myth.
I think I should get punitive damages.
In a typical personal injury case, recoverable damages include "special damages" and "general damages." Special damages are for itemized amounts, like wage loss and medical bills. General damages are for non-economic damages, that is, pain and suffering. Punitive damages, designed to punish the wrongdoer, are rarely if ever applicable or recoverable. I try to explain to my client at the outset that my role is to try to help them recover their out of pocket expenses and non-economic losses related to their accident.
The other guy injured me. Why should my (car insurance or health insurance) pay for my medical bills?
I explain that Pennsylvania law rightly and correctly requires your own insurance company to pay for your own medical bills, whether it's your car insurance, health insurance, or through workers compensation benefits if injured on the job. This is a benefit to you that you paid for in some way, either directly or, in the case of workers compensation benefits, by the very nature of being employed. You may also be a beneficiary of insurance benefits, say for instance, if you are a passenger in someone's insured car and you have no insurance of your own.
Should I not go to work? How long should I go to the doctor?
These are issues that require medical consultation and advice. I always explain that issues related to medical treatment and disability should always be left up to the doctor that my client sees, after consultation with my client/their patient. I urge my clients to go to their doctor visits armed with questions.
This didn't hurt before, but now it does. It had to be caused by the accident.
It very well may be. But unless an injury can be related to an accident by credible medical expert testimony, it cannot be proven as related to the case. Put another way, your doctor must make the causal link between your injuries and the accident. The worst thing to do in a personal injury case is to overreach. That's not to say you should not tell your doctor of all of your ailments. But you should also rely on the competency of your treating doctor to causally connect your injuries to the accident and only those injuries that are related to the accident.
Layoffs are pounding the legal profession in the Philadelphia legal community. Firms are merging in order to stay alive in the recession. Wolf Block, with over 300 lawyers, went under in late March. In early March, Morgan Lewis & Bockius announced it was laying off 55 lawyers and 161 support staff. Big and medium size law firms have lots of overhead in terms of salaries, rent, equipment, you name it. They can't be nimble in an economic downturn, at least not nimble enough. They can't change course quckly enough to catch new opportunities in the legal marketplace.
Of course, the same pressures that medium and large law firms face are no different than the pressures faced by other businesses. Any business owner can testify to the fact that opportunities for growth abound, even in this recession. But slight adjustments in a company's or law firm's business plan must be on the books (at all times) and ready to be acted upon (when needed).
Smaller law firms don't face quite the same financial pressures as their larger counterparts. In this economy, that could turn out to be a benefit for consumers in need of legal services.
