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July|August 2004
The Moral of the Story By Patrick Keefe
Spot On? By Adam Hanft
Elsewhere

Spot On?

Lawyers are spending more money than ever to advertise on TV. Are they getting their money's worth?

By Adam Hanft

WARDROBE BRAGGADOCIO IS A STAPLE of hip-hop. Allusions to personal injury law firms are not. Yet on the Beastie Boys's seminal album Paul's Boutique, the trio boasts that they've got "more Adidas sneakers than a plumber's got pliers" and "more suits than Jacoby & Meyers." The group could be confident that listeners who shared their New York City roots would understand and appreciate the inside joke. For more than two decades, anyone in the tri-state area who tuned into a soap or a daytime rerun of Barnaby Jones probably came across a television advertisement for the law offices of Jacoby & Meyers, a Manhattan firm.

Recently, Tim David, the chief marketing officer for Jacoby & Meyers, stopped by unannounced to see me. I had called David several times to quiz him on the firm's experience with TV ads, but now he was downstairs in front of my building, anxious to show me his new batch of commercials. I invited him up, and he arrived toting his latest reel. Because Jacoby & Meyers has been advertising on television for as long as any firm, I had hoped that it would be at the vanguard of the genre. Things turned out otherwise.

One of the new spots that David was eager to screen for me was inspired by a recently enacted law that requires New York City drivers to stop for the city's notoriously brazen pedestrians, at least when they're in a crosswalk. David told me that when he read about the law in The New York Times, he had had a marketing epiphany: Why not target an ad at victimized pedestrians?

David clearly thought he had something new to show me, but while the "pedestrian knockdown" concept was fresh, the commercial itself felt like I'd seen it before—cheapo footage depicting the hazards of crossing the street. The ad took an imaginative approach to attracting plaintiffs and packaged it in a singularly unimaginative format.

David's visit didn't show me what is new about legal advertising on TV, but reinforced a fundamental truth about such ads: They are strangely immune to change. Were it not for lapel width, it would be hard to tell most of the present-day legal commercials from their '70s counterparts. Most, but not all.

There has been an explosion in the amount of legal advertising on television in the last decade or so. In 1995, nearly $25 million was spent; that number soared to over $90 million in 2002. Some of the firms spending this money have begun to break away from the dated conventions of Jacoby & Meyers. These firms have recognized that investing in savvier pitches is money well spent because better ads bring in more business. This new crop of ads may not win any Gold Lions at Cannes, but they're far more sophisticated than their predecessors, attuned to the brands they're representing and designed to reach a wider audience. Law firms—some, at least—are beginning to recognize that the daytime television viewer is not the only fish in the sea.

LAWYERS CAN BE FORGIVEN for the persistently low quality of televised legal advertising because of legal advertising's short, strange history. Law firm advertising of any kind has only existed since 1977, when the Supreme Court handed down its decision in Bates v. the State Bar of Arizona. The case involved a newspaper ad that had been placed by lawyers John R. Bates and Van O'Steen. The ad stated that they were offering "legal services at very reasonable fees," and listed rates for certain types of work: uncontested divorces, uncontested adoptions, simple personal bankruptcies, and changes of name. The State Bar Association filed a complaint against them, based on a disciplinary rule that stated lawyers were not allowed to publicize their services in a newspaper, on television, or through any "other means of commercial publicity."

The court noted in its ruling that "advertising by attorneys is not an unmitigated source of harm to the administration of justice." On the contrary, the court said, such advertising "may offer great benefits."

The Bates court was concerned that not all Americans had equal access to the justice system, and its ruling expressed a hope that advertising might help provide a solution to that problem. "The absence of advertising may be seen to reflect the profession's failure to reach out and serve the community," the court wrote. "Studies reveal that many persons do not obtain counsel even when they perceive a need because of the feared price of services or because of an inability to locate a competent attorney."

In the aftermath of the Bates decision, only a handful of firms, Jacoby & Meyers among them, rushed to advertise. William Hornsby, a staff counsel at the American Bar Association, told me about a commercial that an attorney named Ken Hur ran in Madison, Wis., early in the post-Bates era. At the time, a local jewelry store was running a spot showing a beautiful woman emerging from a lake. Hur filmed a spot that showed himself—all 300 pounds of him—coming out of a lake in full scuba gear, saying, "If you're over your head in bankruptcy, call me."

In some ways, things haven't improved much since then. A patchwork of state regulations persist in the wake of Bates, frustrating the efforts of lawyers wishing to shill for themselves on TV. In Florida, lawyers can't use testimonials from satisfied clients. In Iowa, lawyers can't "appeal to emotions, prejudices, likes or dislikes" of potential clients—they're basically restricted to broadcasting an image of a business card and hoping for the best.

While these regulations may seem to be intended to protect consumers, they are largely the work of state bar associations trying to protect their geographic turf: Tight restrictions on advertising make it difficult for out-of-state lawyers to enter a market and dislodge locals. Whatever their rationale, the restrictions hardly foster innovation.

Most legal ads you're likely to see advertise the services of personal injury lawyers. Watching a collection of personal injury firm ads is like watching an amalgam of every mother's worst fears. Negligence and malpractice are as common as the common cold. Every day, nursing home patients are tortured by caretakers and construction workers topple off I-beams.

The commercials depict life through a lens that divides mankind into tort-feasors and tort victims. It's a world where every bad deed should be paid for. As Injury Helpline, one of the largest spenders on advertising, reminds viewers: "Insurance companies have lawyers working hard on their side . . . and so should you."

BUT NOT EVERYTHING ABOUT THIS ROTE GENRE of legal ads is tired. In one of the more imaginative takes on the evil insurance company theme, the viewer is privy to a mock training session for a generic company. The ad opens as a smarmy instructor explains to a class of insurance clones the importance of settling before a plaintiff finds a lawyer. "How do you keep them from getting a lawyer?" the instructor asks. "Quickie offers," comes the reply. "Otherwise we end up paying them three times the money."

If this sounds less than revolutionary, that's because what's new about the spot is not so much its message or delivery as its provenance. The ad is part of a syndicated package produced by the marketing firm Network Affiliates. The company tries to sell the package to one law firm per market, customizing it by adding an attorney's name at the end. Local law firms get a decent product without the hefty price tag of a personalized spot.

Market Masters-Legal, based in Northampton, Mass., has developed a similar approach. They've signed up Robert Vaughn as a spokesperson and, like Network Affiliates, they sell their package on a market-by-market basis. (Spokespeople are a tried-and-true advertising technique, but the appeal of a dusted-off B-list actor best remembered for his role on The Man From U.N.C.L.E. remains a mystery.) The ad is shot from the point of view of a patient in a hospital bed who is being seduced by claims adjusters to sign away his rights. Suddenly, we hear the sound of a curtain being pulled. Cut to Vaughn, who intones, "If you've been injured, tell the insurance companies you mean business."

Gary Martin Hays, a litigator out of Atlanta, bought the Vaughn package at a cost 20 times greater than what he had been paying for his previous advertising campaign, which starred himself. Hays told me that he is a better lawyer than actor, and his commercials weren't doing justice to his practice. The Vaughn ad, however, has been a hit. "Twenty phone lines light up as soon as it runs," he said.

This isn't branding, of course. The Network Affiliates and Market Masters-Legal spots don't showcase the attributes of a particular law firm. There are some firms, however, that are trying to create a unique brand identity. Morgan, Colling & Gilbert, which operates out of Orlando, Fla., will spend some $6 million on television advertising this year, and much of that money will go into building a brand. As with other personal injury outfits, the firm's sworn enemies are insurance companies. "Insurance companies are monsters," the firm's John Morgan told me. "We have a whole department that tells Allstate to go fuck themselves."

Morgan's ads take a less vitriolic approach. The ads are aimed at building a brand that is considered friendly, informative, and accessible. "Our marketing approach is informational; many ads don't talk about the case itself, they just give consumers information," he said. "I want people to see me as a consumer advocate. We never say 'Were you malpracticed?' " Rather than adhere to the industry standard of "speed and greed," appealing to the viewer's desire to get revenge—and get rich—quick, Morgan's ads take a gentler approach, focusing on what the law is, what your rights are, and what "opportunities" you might be unaware of.

Some firms use television advertising to build their brand as well as their mass tort classes. Ads designed to assemble litigants for class action suits represent an explosive area of growth in legal advertising. Though it may be hard to fathom, many of these spots are even less artful than the worst personal injury ads. The work comes in waves: A drug like Baycol gets recalled and suddenly a slew of "Have you taken this drug?" ads appear. Often, an ad will be little more than type scrolling across the screen accompanied by an ominous voice-over. But others have taken the high road.

In 2000, the South Carolina law firm of Motley Rice commissioned a campaign targeting victims of mesothelioma, a malignant tumor that is often a result of exposure to asbestos. The ads use a series of black-and-white stills of factory workers with a vaguely Walker Evans feel to celebrate the working man. Rather than pummel the audience with information, they send viewers to an information website.

BY DEFINITION, MASS TORT FIRMS have no choice but to target their ads at potential class members. But recently other kinds of law firms, not just ones building classes of litigants, have begun to recognize the importance of tailoring their ads for a specific clientele.

Given the growth of the Hispanic population in the United States, many firms have begun targeting this demographic. These firms have quickly become among the industry's biggest spenders. The second-largest spender on TV ads is the firm Mi Abogado; the fourth is Los Defensores. Together, the two outfits spent more than $12 million last year.

Hispanics aren't the only demographic group lavished with newfound attention. Long after other industries recognized the economic importance of wooing women—they are responsible for more than 50 percent of all consumer purchases—law firms have finally caught on. A spot from Finkelstein & Partner features attorney Nancy Morgan at her desk, making an unabashed gender pitch: "Some guys on TV, personal injury lawyers, tell you to call them because they are so tough. Well, I'm tough too, but I offer you something that those guys don't have—a woman's point of view. The unique pain a woman knows is not in their experience."

Firms targeting their ads at women and minorities are following the money. But James Sokolove, a Newton, Mass., attorney who has been advertising on TV since Bates, points out that legal advertising has also helped make people into smarter legal shoppers. "Twenty-five years ago it was enough to say 'free initial consultation,' " he told me. "Today, consumers are educated and lawyers are going to have to differentiate more." Sokolove sees that delineation happening in three ways: through specialization, through price competition, and through a move toward "board certification," which signifies that an attorney has obtained a higher level of professional credential than passing the bar.

Smart legal advertisers have noted that consumers can be quick studies, and they have incorporated that fact into their advertising. In an area like nursing home abuse, where most people don't know they have any recourse, an educational approach is especially effective. "We have to tell people that what may have happened is wrong, that there is a standard of care. If grandpa wanders away and dies, the nursing home has accountability," said John Morgan, who tries many of these cases.

In 1996, Warren Direct, an advertising agency in Austin, Tex., created an infomercial about nursing home abuse for a Houston firm that helped pioneer this legal area. The ads have the same structure as the infomercials that sell exercise equipment and knife sets. They show family members talking about the horrors their loved ones experienced and include interviews with experts. The infomercial was approved in 31 states, and it ran in about 20. The agency's Jim Warren told me it "was a huge revenue generator" for the law firms that used it; based on the success of the spot, other lawyers approached him to create similar advertising for their firms.

In the ads, Warren avoided talking about money, emphasizing duty instead: "You need to speak up, or this will happen to others." This good-citizen angle targeted what he called the "perfect client": someone who would rather not file a case, who is reluctant to go to the witness stand, and is motivated by a desire to help others, not himself.

THE BATES COURT WOULD DOUBTLESS BE PLEASED to see that underrepresented groups—Hispanics, women, and others—have been brought into the legal system, that the public is better educated about their legal options, and that legal advertising has helped accomplish these ends. It would be inaccurate, however, to say that all legal advertising has the public interest squarely at heart.

Just two days after the Staten Island ferry crash last fall that killed 10 and injured dozens of others, the New York State Bar Association issued an advisory requesting that lawyers "adhere to the code of professional responsibility" and refrain from soliciting survivors to file suit. But it couldn't hold back the floodgates. Within days, ads seeking to recruit the ferry's 1,000 passengers were on the air. As The New York Times reported, only three weeks after the crash, about 40 survivors had indicated that they planned to sue the city, some because of injuries to themselves or the wrongful death of a loved one, others for more dubious claims. One woman sought a $200 million payout from the city to compensate her for lost sleep.

Unfortunately, many lawyers who advertise continue to allow the ends to blind them to the means. Perhaps the most honest observation about legal advertising I've heard was a comment John Sakson of the law firm of Stark & Stark made to me about a class action case that never ended up generating any significant revenue for the many law firms that pursued it. "People made significant investments, put together staff," he said ruefully. "But it turned out to be terrible. No one got hurt."

Adam Hanft is the president of the advertising agency Hanft Unlimited.

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