< The Upside of Legal Advertising

Transcript

Friday, September 16, 2011

BOB GARFIELD:

So you're on the sofa watching basic cable at 3 a.m. and you've just seen almost nine uninterrupted minutes of a 1993 cop thriller. So on comes the commercial break.

[CLIP]:

ANNOUNCER:

Are you tired of having bad credit? Easy Credit Repair can help you regain control legally and affordably.

[CLIP]:

ANNOUNCER:

Tax Resolution Services can help you negotiate a settlement for pennies on the dollar.

[CLIP]:

MONTEL WILLIAMS:

I'm Montel Williams. Would an extra thousand dollars come in handy right now? Then I'd like to talk to you about Money Mutual.

BOB GARFIELD:

Ohh, Montel! But there is it. You have been transported to the desperation zone, where hard luck is the motif and salvation is but a toll-free phone call away, especially if you have the good fortune to have your bad fortune arguably someone else's fault.

[CLIPS]:

ANNOUNCER:

Attention anti-depressant users. The FDA has associated the use of certain antidepressants with birth defects.

ANNOUNCER:

If you took Celexa, Lexapro, Paxil, Effexor, Zoloft, Prozac or Pristiq —

ANNOUNCER:

If you or a loved one were occupationally exposed to asbestos and have been diagnosed with mesothelioma —

ANNOUNCER:

Warning, Accutane has been pulled from the market. Serious side effects include inflammatory bowel disease, Crohn's Disease or colitis. If you…

BOB GARFIELD:

If there is any category of commercial that dominates the desperation zone, it is the lawyer ad, drumming up business with alarming correlations between exposure to certain substances, usually prescription drugs, and some of the nastiest - stuff ever.

[CLIP]:

ANNOUNCER:

If you ever took the acne drug Accutane or one of the generic versions and you now suffer from Crohn's disease, ulcerative colitis or inflammatory bowel disease, call the Relion Group now.

BOB GARFIELD:

There was a time when TV commercials for lawyers didn't exist. They were deemed by the legal establishment to be barratry, the variously unseemly, unethical and unlawful solicitation of clients, more commonly known as ambulance chasing. One simply did not go into public foraging for torts.

GREG BECK:

Before 1977, that would have been illegal in, I think, every state. And that had been the case for most of the 20th century.

BOB GARFIELD:

Greg Beck is a lawyer for Public Citizen in Washington, D.C.

GREG BECK:

That changed completely in 1977 when the Supreme Court decided the, the case Bates vs. Arizona Bar. And in that case, the Supreme Court said for the first time that the First Amendment protects lawyers in their advertisements.

[CLIP]:

JAMES SOKOLOVE:

If you've been injured on your job, you may need a lawyer, one who knows Workers Comp and who will fight hard to get you everything you're entitled to. I'm attorney Jim Sokolove. My business is personal injury law.

BOB GARFIELD:

Among the pioneers was Boston personal injury lawyer James Sokolove, who thought that the law was a business like any other and could benefit from business thinking, such as expanding the marketplace.

After dipping his toes in the water of print advertising, he ran a commercial aimed at victims of car crashes and then sat back waiting for the incoming. There was plenty.

JAMES SOKOLOVE:

We were overwhelmed with the amount of response that we received from consumers, and we were also overwhelmed by the amount of critique that we received from the organized bar.

BOB GARFIELD:

Critiques in the form of public expressions of disdain from his more dignified peers. As his clientele grew and as his caseload grew and as his success rate grew and as his fee revenue grew, the disdain substantially gave way to ad competition from or partnership with the very lawyers who had dismissed him as an embarrassment.

Twenty-five years later, his associates practice in 50 states and have accrued more than one billion dollars in fees, plus perks.

JAMES SOKOLOVE:

You know, having spent all this money in TV advertising is I can get a reservation for dinner now, you know?

BOB GARFIELD:

No surprise, then, that Sokolove has many lawyers following in his footsteps. And for the faint of heart who do not wish to be seen as hucksters, advertisers such as The Relion Group troll for prospective clients, then sell the referrals to off-camera litigators.

The Relion Group, a subsidiary of Lead Generation Technologies, funded by the Carlyle Group, doesn't itself employ any lawyers.

[CLIP]:

ANNOUNCER:

If you or a loved one have been diagnosed with bladder cancer after taking Actos, call the Relion Group now for a free legal consultation.

BOB GARFIELD:

The question is, apart from scaring the bejeebers out of us in the middle of the night, what does tort television actually accomplish?

To Elizabeth Tarbert who regulates lawyer advertising for the Florida Bar Association, the answer is — a lot. Millions of Americans who otherwise have little knowledge about say dubious drugs, much less the world of civil law, are provided information in the time it takes to order a Sham Wow.

ELIZABETH TARBERT:

There may be many consumers who have no idea they may have a legal claim. So that is a purpose of lawyer advertising, is to inform consumers of their legal rights. Some people may find it distasteful, but again we're not permitted to regulate on, on the grounds of taste.

BOB GARFIELD:

On the contrary, one of the reasons all these look so down market is that regulators like the Florida Bar and its 49 equivalents among them prohibit the techniques and most of the sophistication, or at least the storytelling, seen in other categories of advertising.

For instance, one Syracuse, New York lawyer had to go to federal court to protect his constitutional right to be ridiculous. Greg Beck of Public Citizen:

GREG BECK:

We represented a, a firm who had a variety of ads that were supposed to be funny and entertaining, including ads that sort of made the lawyers look like they were giants stomping around the city of Syracuse and, for example, advising space aliens on personal injury claims.

BOB GARFIELD:

Sounds like a Japanese movie from 1962.

GREG BECK:

They were kind of funny. They were silly. The bar does not like silliness, though. And it made clear that silly kind of ads are, are the source of ads that the rule was supposed to prohibit.

BOB GARFIELD:

Beck and his lawyer clients prevailed, but the victory provided little comfort to national advertisers like Jim Sokolove, who still must craft a single ad that will pass muster with every other jurisdiction. He began his TV advertising career using super slow motion reenactments and now just poses stiffly in front of a bookcase. Sokolove.

[CLIP]:

JAMES SOKOLOVE:

If we want to stay within regulation in all 50 states, we have to present in our media, things that are very vanilla. We're dealing in a very, very restricted environment, which is not necessarily in the consumer's best interest.

BOB GARFIELD:

There is also the question of the nation's best interests. Critics of the litigious society claim that obscene jury awards and countless nuisance lawsuits place an onerous burden on manufacturers and dedicated professionals.

The counterargument, though, is that the looming threat of litigation, not to mention actual punitive damages, is a check and balance against greed and negligence. Furthermore, says Public Citizen's Beck, the courts actually aren't clogged with mesothelioma claims triggered by cable TV.

GREG BECK:

The ad is just the first contact between the lawyer and a potential client and a lawyer has no incentive to bring a case that cannot win. And so, the next thing that happens is the, the client contacts the lawyer and the lawyer evaluates the strength of the claim. If the lawyer at that point decides that the potential client has no case, then there's been no harm done.

BOB GARFIELD:

Well, there's some harm done. If you're a person like, for example, me who has seen several of his own daily medications associated with bad, bad, bad things. This is unnerving at 3 o'clock in the morning.

Let's say that one very hypothetically once took Accutane and for the next 25 years has had again hypothetically, a bowel more irritable than Simon Cowell.

And as long as we're just supposing, let's suppose that this person was well within the vast statistical majority, and that one thing had absolutely nothing to do with the other.

[CLIP]:

ANNOUNCER:

Correlation or association is really based on observation. And it says that the people who take Drug A have a different experience than the people who take Drug B.

BOB GARFIELD:

Gerald Delpan runs the Office of Surveillance and Epidemiology at the Food and Drug Administration.

GERALD DELPAN:

It doesn't tell you why they have a different experience. It may be because of the drug but it may be because they have other underlying illnesses or a host of other factors that independently predispose them to the adverse outcome and that has nothing to do with the drug at all.

BOB GARFIELD:

So if I were — if our hypothetical subject were to go rushing off to court to be compensated for 25 years of pain and suffering unrelated to Accutane, the tort reform crowd would be well within its rights to say, see, I told you so.

On the other hand, if you don't want to be scared into filing frivolous lawsuits, or even into shunning important medicines that you genuinely benefit from, lawyer James Sokolove prescribes a simple remedy. It is not the antidepressants Zoloft, Paxil or Celexa, which have been associated with birth defects. It's something a little more basic.

JAMES SOKOLOVE:

One can always turn off the message.

BOB GARFIELD:

Really? Turn it off.

JAMES SOKOLOVE:

I'm not a soap star or a game show host, but I've been on TV longer than most of them. I'm attorney Jim Sokolove. Some people ask how could he be a good lawyer if he has to advertise? The truth is…

[BEEP/END AD]

BOB GARFIELD:

Excellent idea.

[CLIP/MUSIC UP AND UNDER]:

ANNOUNCER:

Are you a lawyer? Has someone you don't know been victimized by mesothelioma, cancer, heart disease, kidney failure, hepatitis, stroke, migraine, depression, arthritis, asthma or death? These are potential plaintiffs.

Call 1-800 KA-CHING now.

Parkinson's Disease, Hansen's Disease, Crohn's Disease, Lou Gehrig Disease, scurvy, gingivitis. Victims are everywhere. If you can't locate them, you may be suffering financial harm. Do not delay, call now. You are entitled to advertise.

These cases can yield large awards. Just pick up the phone. Call 1 800 KA-CHING now. Call 1 800 KA-CHING, now.

ANNOUNCER:

This is an advertisement for advertising services. Advertising rules vary by state and jurisdiction. This is the part where I speak very, very fast. The words on your screen are too small to read. Now I'm talking even faster.

[MUSIC/THEME MUSIC UP AND UNDER]

BOB GARFIELD:

That's it for this week's show. On the Media was produced by Jamie York, Alex Goldman, P.J. Vogt, Sarah Abdurrahman and Chris Neary, and edited this week by our senior producer Katya Rogers.

Our technical director is Jennifer Munson. Our engineers this week were Rob Grannis and Dylan Keefe. Special thanks to voiceover artist Donald James.

Ellen Horne is WNYC’s senior director of National Programs. Bassist composer Ben Allison wrote our theme. You can listen to the program and find transcripts at Onthemedia.org. You can also post comments there. You can find us on Facebook or follow us on Twitter. And you can email us at Onthemedia@wnyc.org.

On the Media is produced by WNYC and distributed by NPR. Brooke Gladstone will be back next week. I’m Bob Garfield.