Personal Injury Lawyer Ads: Deceptive or Necessary?

Posted on February 2, 2011 by Stuart A. Carpey

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.

Nathan Koppel writes in the Wall Street Journal Lawblog (December 13, 2010)

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.

While researching this article, I came across Max Kennerly's January 6, 2011 post entitled “Philosophy Explains How Legal Ethics Turns Lawyers Into Liars” where he says:


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:

  1. Be accurate.
  2. Be timely and relevant.
  3. 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).
  4. I must be willing to take a position when necessary.
  5. 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?

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The Frequency Of Contact Between You And Your Lawyer In The Personal Injury Case

Posted on June 7, 2010 by Stuart A. Carpey

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.

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