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Sunday, August 10, 2003

Should you hire your lawyer based on a recommendation from the Man from U.N.C.L.E.?

There are now marketing firms that peddle slightly-customized television commercials using "professional acting talent" to law firms around the country — mostly to lawyers seeking to represent injury victims on personal injury claims.  From a recent report in Marcia Oddi's Indiana Law Blog and accompanying press coverage, I gather that the Indiana Supreme Court has just slapped down a small firm in Indianapolis who paid to broadcast some of the most ubiquitous of these ads — some I've also seen frequently in Houston, with only the firm name changed. 

Robert Vaughn a/k/a Napoleon SoloThese ads depict pretend-insurance adjusters talking tough about how they're going to walk all over some little guy who's just submitted a claim, then becoming panicky when they find out who his lawyers are — generally along the lines of "Oh my god, Dewey, Cheatum & Howe?  [insert cheesy sound effect here and have actor spill something]  We can't go to court, we've got to settle!  Get out the checkbook, fast!"  Then a mature, deep-voiced, handsome, and well-dressed actor — Robert Vaughn, vaguely still familiar to millions as "Napoleon Solo," the debonair spy in the 60s TV show "The Man from U.N.C.L.E." — chips in with his two cents:  "Tell the insurance company you mean business by hiring Dewey, Cheatum & Howe!  They go after your rights piece by piece by piece until you get every dollar you deserve!"  The impression is that these lawyers are likely to do to the insurance company what James Bond always does to S.P.E.C.T.R.E. unless they pay up, right now, no questions asked! 

In the ads, the insurance companies are eager to pay up regardless of the strength or weakness of any underlying evidence on damages or probable liability.  That's why the Indiana Supreme Court ruled that these ads violated the canons of ethics — they created unjustifiable expectations on the part of prospective clients that the advertising lawyers can always achieve a positive result based just on their reputation.  Or in other words, the central premise of the ads was misleading humbug — a lie, although the court didn't use that perfectly apt word.

For most of the last 20+ years, in addition to purely commercial litigation among businesses, some portion of my practice has included representing either insurance companies and self-insured businesses who are being sued, or injuried people who are doing the suing.  From personal experience on both sides, I can confirm to you that the reputation of the lawyers involved on each side does indeed count for a great deal in the very subjective evaluation of what a personal injury claim is "worth."

But the cruel, sad irony is, the lawyers you see advertising for PI cases on TV are, more often than not, lawyers whose actual reputations cut against their clients, at least in my personal experience.

UPDATE (Wed Aug 13):  Yet another fascinating blog that was introduced to me today by a follow-up post on Ms. Oddi's Indiana Law Blog is ethicalEsq?.  Its homepage is subtitled "advocating client-centered legal ethics," and its "about" page says, "The underlying question will always be whether a proposal, rule or action puts the client's interests first."  (This leaves me wondering if there's a competing school or doctrine of legal ethics that doesn't — but never mind that for now.)  The URL points to Harvard Law School, but it's apparently edited by a "retired attorney and mediator" from upstate NY, David Giacalone, with some other folks also helping out.  I'll definitely give the site a closer look later.

What came to my particular attention, though, is Mr. Giacolone's post today on the Indiana Supreme Court's decision on the "Man from U.N.C.L.E." TV advertisements:

With all due respect, this is just plain silly, highly insulting to consumers, and a waste of judicial resources.   The Federal Trade Commission knows a thing or two about misleading and deceptive ads.

Mr. Giacalone then assesses these ads as harmless on grounds that the ordinary consumer would would recognize them to be "obviously exaggerated or puffing representations," citing a Federal Trade Commission policy statement as a touchstone.  He concludes:

If courts and bar associations really want to help personal injury victims, they should start making sure that contingency fees are reasonable and that clients are fully informed about their right to negotiate over the percentage charged.   And, they should stop wasting their time fuming over ads that we all love to hate, but are all about familiarity and name recognition, not believable claims.

Clearly he comes at this issue from a different perspective than I do — one that is making me scratch my chin and mumble to myself a bit.  Two things occur to me off the top of my head:

  • I'm inclined to believe that courts and bar associations can and should employ a higher level of scrutiny than does the FTC because I'm inclined to believe there is a unique potential for deception, and a corresponding difficulty for a layman to evaluate and "comparison shop" in a meaningful way, when it comes to lawyer advertising.

  • I'm emphatically less confident than Mr. Giacalone that all lay consumers, or even most lay consumers, will recognize these ads as being obvious exaggerations.  To the contrary, I'm quite concerned that a substantial portion of the public may believe, "It must be true or they wouldn't let them say it on TV."  Even if only 10 percent of the public thinks that, in my judgment that's too many to ignore.

Mr. Giacalone appears to be keen on the notion that contingent fees should be the subject of more active negotiation.  This too is a proposition that makes me rub my chin and ponder — I'm not immediately certain that there are no downside risks to that proposition.  Depending on what further thoughts burble up from the thick mud of my subconscious, I may write more on this topic later. 

Posted by Beldar at 05:56 PM in Law (2006 & earlier) | Permalink


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(1) dwight meredith made the following comment | Aug 11, 2003 2:36:19 AM | Permalink

I do not understand why insurance companies would pay anything close to fair value on cases brought by the PI mills.

The firms that advertise for small personal injury claims rely on a volume of business to make money. They hope to bring a in case through advertising, do a small settlement package, accept an early offer and go on the the next case.

The cases tend to be so small that they will not support a lot of attorney time.

When the mill lawyers have to actually try a case, it becomes a financial loser for them.

The insurance companies know that the PI mills do not want to try cases. It would be insane for the insurance companies to pay anything approaching a $ on a $ to those firms.

What a personal injury case is "worth" is the likely jury verdict less the costs of trying the case.

To get close to that value in settlement, it is necessary to be prepard to try the case and have the jury make the insurance company pay.

While I have never worked in a "PI mill," I have handled many many such cases on both sides of the V. Insuarance companies will only pay fair value if they believe that the plaitiff's lawyer is prepared to put 12 in a box and cause the insurance company much pain.

I therefore approach every case as if I am going to try it. When I handle a personal injury case, I like to have the parties depositions, any key liability witneses and all medical witnesses deposed (the Docs on videotape) and ready for trial before I begin any serious settlement discussions.

The appearance of a case on a trial calander with liability and fact witnesses ready to go tends to focus the mind of the adjusters on the need to pay fair value.

(2) Beldar made the following comment | Aug 11, 2003 11:13:37 AM | Permalink

Bingo. I agree 100 percent.

The smarter of the "mill lawyers" have figured out that when they get a serious case — a rough diamond among the mounds of slag that the TV commercials bring into their doors — they can instantly refer those out to real trial lawyers and make fabulous windfall profits off a referral fee. That ends up better serving those clients, at least, and doesn't usually cost them any more (since the mill lawyers are just splitting with the capable lawyers the same contingent fee to which the mill lawyers had already obtained their clients' agreement). But of course, distinguishing which ones are the "serious" (or, from a contingent fee lawyer's standpoint, "profitable") cases is a large part of the art of practicing personal injury law. I suspect that more than a few rough diamonds get tossed out with the slag, which is another part of the cruel irony.

(3) David R. Amos made the following comment | Oct 31, 2003 8:47:58 PM | Permalink

I tend to agree with the old man from upstate New York but then again he may live in Brooklyn

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