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The classic television commercial cited by all opponents of attorney advertising is the one where 300 pounds of lawyer emerges from the water to the strains of “Swan Lake” bedecked in gold chains and carrying a chest of cash with the message that he’ll bring the treasure home to you. But that was years ago and by a lawyer who has since retired. Still airing in some states is Robert Vaughn, former “Man from U.N.C.L.E.,” in suspenders, sternly promising that whichever attorney was hired in that particular market was so fearsome that otherwise recalcitrant insurance companies will roll over and pay up big bucks. Then there’s 1950s soul icon Percy “When A Man Loves A Woman” Sledge standing next to a pasty-white lawyer noting that while not really related, he does, indeed, turn to L.D. Sledge when he wants to “hammer” someone legally. For much of the past 25 years, organized bar and trial lawyer associations have attempted to rid the legal profession of the commercialism that resulted when the U.S. Supreme Court allowed attorney advertising. And it’s to television ads that critics most often point to support their argument that Bates v. State Bar of Arizona, 433 U.S. 350 (1977), has pressed the noble profession into a fast food-like business model. “There’s certain cleverness about these ads,” says William E. Hornsby Jr., author of “Marketing and Legal Ethics.” “At their best they are outreach to people who are intimidated by the legal system. At their worst, there are very serious concerns that they denigrate the profession.” A study in 1993 found that 20 percent of low-income people found legal representation through television ads, Hornsby says. Obviously, this kind of advertising does serve a purpose even as it, in some eyes, turns the practice of law into a commodity. “The question then is what does, in fact, undermine the image of the profession,” Hornsby asks. And the answer is: Nobody knows. “One thing is clear, though, the Supreme Court has ruled time and again that you cannot regulate taste.” Advertising attorneys say that the marketplace is the best determiner. Television and yellow pages advertising are so expensive that lawyers cannot waste money on frivolous attention-getters that do not translate into phone calls. Even the most outrageous commercials are carefully scripted with a single message that, marketing studies show, appeals to a specific demographic. A campaign to promote a personal injury lawyer to a low- and moderate-income population costs at least $500,000 in a midsize market, says Van O’Steen of Phoenix, who was the co-plaintiff in Bates. Two or three customized television ads will cost about $20,000 to produce. A modest but respectable run of three weeks will cost about $25,000 per month. Then, there is the $60,000 full-page display in the yellow pages. And follow-up, answering the calls, case intake and case evaluation are additional expenses. “Twenty-five years post- Bates, I think we have probably fleshed out most of the tacky attempts to market legal services,” says O’Steen, who operates in the nation’s 18th-largest television market. “And the reason is costs. It’s a simple business decision.” Over the past 25 years, the goal of his television advertising campaign was to build a “residue of knowledge so that when you have an accident you think of Van O’Steen & Associates. We want you to think of us first and go to the white pages,” he said. “The quiet little secret is that this very noble profession, apart from the usual practices of business, is very much a business. We have families to support and bills to pay. If the advertising doesn’t make the phone ring, then it’s not doing its job,” says O’Steen. David Singer, who operates in Miami-Dade and Broward counties, part of the Miami region, the nation’s 11th-largest market, expects an eight-to-one return on his advertising dollar. His television commercials have a quirky, homespun humor. It’s a calculated effort. His clientele is afraid of the legal system and they are seeking someone to help guide them through the bewildering maze. His advertising is designed to humanize him and make him seem approachable. “The proof is in the pudding. Our phones are literally ringing off the hook. If we didn’t service a legitimate need that wouldn’t be so,” says Singer, name partner at Hollywood, Fla.’s Singer, Farbman & Associates. Arnie Malham, president of CJ Advertising in Nashville, Tenn., produces television advertising for personal injury lawyers and provides an intake service that will answer the phones after an ad runs. Malham says lawyers must be attuned to the local rules that regulate attorney advertising. Although Bates protected commercial free speech, the decision allowed local bars to regulate television advertising. Most states have different regulations. Some states don’t allow dramatizations. Others specifically exclude scenes of wrecked vehicles or planes. Many have determined that testimonials create unrealistic expectations. In Florida, the attorney himself must be in the commercial. No actors or spokesmen are allowed. The background must be single-color or be comprised of law books, and can include no music with lyrics. In Kentucky, the commercials must include the words “This is an advertisement.” Alabama is considering Florida-like rules that would require the lawyer to be in the ad. These rules are inherently discriminatory because only good-looking lawyers with a television presence can advertise, Malham said. “Some of the best lawyers in the country have absolutely no business putting their ugly mugs on TV, and doing so will certainly hurt the overall image of the profession.” Plus, strict limits crimp creativity that could help produce attractive and professional-looking ads that would reflect well on the legal profession, Malham says. “Got Milk”; “Pork: The Other White Meat”; and “Cotton: The Fabric of Our Lives” are campaigns that popularized those industries. “My ads have to compete with ESPN and Bud Lite,” Malham says, “so why make it so I have to look like a local yokel? Why limit me?” Malham predicts that during the next decade local bars will eliminate these restrictions. “The commercials for legal services will only become more professional and dignified. Not because lawyers were forced to make better commercials by their bar association, but because competition will demand that lawyers produce better commercials to compete in the new economy,” he says. UNHOLY ALLIANCE Television advertising’s success in bringing in new clients, coupled with a sharp increase in the use of the mass tort strategy has created an alliance between trial lawyers and the marketing attorneys they derided only a few years ago. Many of the television lawyers, with their production and intake capabilities already in place, have begun trolling for clients to refer to allied trial lawyers. In the Gulf South, for instance, actions claiming asbestosis injuries have moved from asbestos manufacturers to employers whose factories used the product to insulate their piping. Television is filled with spots offering former factory and refinery workers free medical screenings. In Mississippi, where recent fen-phen verdicts placed four firms with a total of 19 lawyers on The National Law Journal’s list of the top 25 winningest, airwaves and highways are plastered with commercials and billboards asking if you had ever taken the drug. (They’ve been joined by similar advertising about Ritalin and Baycol and other pharmaceuticals.) In Texas, the issue is house mold. In Illinois, it’s nursing home care. In addition, more marketing attorneys are expected to point their television production machines at political issues, such as legislative moves to limit litigation and damage awards, a.k.a. tort reform. Critics claim such issue advertising is really a cover for pretrial efforts to sway potential jurors. For instance, plaintiffs in the personal injury case Thibodeaux v. Ferrellgas, No. 202,600, claimed that a faulty shutoff valve on a space heater caused a beach cabin to fill with propane gas and explode. During the two weeks preceding the Sept. 11, 2000, voir dire in Cameron Parish, La., plaintiffs’ counsel J.B. Jones of The Jones Firm ran a heavy schedule of television commercials sharply criticizing tort reform initiatives being pushed by Louisiana’s governor, according to district court records. (Jones did not return calls.) Against a background showing a propane truck, a house fire and a woman being loaded into an ambulance, Jones solemnly intoned that: “In life, we are all held accountable and responsible. As industry that provides and delivers needed products, as service companies who inspect and approve equipment of our safety, the consequences for carelessness can be devastating and life-changing. If those in industry and society are not accountable and responsible for their actions, who is? Work toward honesty and integrity and expect those who are responsible to step forward and be accountable for their actions.” Defendants claimed the ads were a blatant attempt to “seed the jury” pool in an isolated parish with less than 10,000 residents. Jones stood by his constitutional rights to comment on a controversial proposal that would directly affect his livelihood. District Judge H. Ward Fontenot of Cameron County, La., moved the trial and enjoined the plaintiffs from running any commercials in the new location. A Rapides Parish, La., jury found for the defendants on Nov. 16, 2001. “The limitations on the variations on the theme are infinite. You have to look at each variation on an individual basis,” says William P. Smith of Atlanta, former chair of the ABA’s Committee on Responsibility in Client Development. Smith also is general counsel for the State Bar of Georgia and responsible for regulating attorney advertising in that state. He daily weighs a new idea in lawyer advertising against whether the content is false, fraudulent or misleading. INTERNET ADVERTISING Another area that attorney advertising likely will move into during the next decade is the Internet, says Dennis Van Der Ginst of Chicago, incoming chairman of Association of Trial Lawyers of America’s 3-year-old Lawyer Marketing Committee. Like television a quarter of a century ago, “the Internet is still wide open.” Firms are still figuring out how best to use the medium, he says. Lawyers have used their Web sites to inform people about various causes of actions, to allow clients 24-hour access to their case file, to check on upcoming dates and trumpet past victories. The legal services business model that evolved from Bates overturned the traditional pecking order in the legal profession, allowing those lawyers with pluck and drive to operate at the same level as the well-connected attorneys, he said. “I think the playing field is about to change again because the Internet is more affordable, and thereby available to lawyers who don’t have the money necessary to create a viable marketing campaign,” says Van Der Ginst, a name partner at Van Der Ginst Roache & Westensee of Chicago. “In order for the profession to continue to thrive, we as lawyers, as businessmen, need to be constantly looking at new areas to grow the business.”

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