Drive down any highway in America or turn on the TV for 10 minutes, and you’re likely to see an ad for a personal injury attorney.
“Injured in a car accident? Injured at work? Stumbled in the store? Call this attorney for compensation,” says a typical ad for a plaintiff’s personal injury attorney. A lawyer often appears behind a desk or in a courtroom ad and a phone number flashes across the screen, spelling out a word or phrase for the viewer to call.
There is a stigma surrounding lawyer advertising, and it was restricted for most of the 20th century until the Supreme Court ruled in 1977 that it violated First Amendment protections. The court said the restriction violated access to legal services “especially for the not-so-poor and the uninformed.”
The decision opened the floodgates for attorney advertising. Tort claims increased in the 1980s, driven in part by claims filed by workers exposed to asbestos.
According to Kantar, $1.2 billion was spent on TV advertising for legal services in November.
Many personal injury lawyers advertise aggressively due to competition and the unusual business model many practices have adopted. Ads also help reach clients who don’t know a personal injury attorney, can’t rely on referrals, or aren’t aware of their legal rights.
“I advertise to showcase my business and hopefully attract business,” says John Morgan, founder of Morgan & Morgan, the nation’s largest personal injury law firm.
Morgan appears in light-hearted television spots and promotes himself under the tagline “For the People.” Morgan’s most successful ads are those that inform people of rights they might not otherwise know.
In personal injury cases, “clients tend to be one-offs, and you don’t repeat interactions with the facility,” said Samuel Issacharoff, a New York University law professor who studies tort law. “The question is always, how do you make connections between injured ordinary people and advocates?”
Personal injury lawyers have different advertising practices, said Nora Freeman Engstrom, a professor at Stanford Law School who studies attorney advertising. Some attorneys who advertise handle cases themselves. Other attorneys advertise and then refer the cases they receive to a network of other attorneys and take a piece of the awards.
And then there are what Engstrom calls “house grinders,” personal injury lawyers who handle a high volume of cases but “are not necessarily focused on maximizing the value of each individual claim.” These attorneys advertise in an effort to attract as many cases as possible.
Most personal injury lawyers work on a contingency fee basis, so they only get paid if they negotiate a settlement for the client or win a trial. Less than 1% of all cases go to trial. Their fee is usually between 33% and 40% of the total amount awarded.
Contingency fee structures are the only way many people can afford legal representation in the event of an accident.
“For a personal injury lawyer, it’s really become an advertising and marketing game to get cases,” said Jason Abraham, vice president of Hupy & Abraham, the largest personal injury law firm in the Midwest. “To generate income, if you’re not in the advertising and marketing circus, you’ll never become a player. It is impossible.”
The company uses actor William Shatner as a paid spokesperson in advertising. Using Shatner “changed the game for us,” Abraham said, and “gave us instant credibility.” Shatner’s ads helped the law firm break into new markets like Iowa.
Personal injury companies often advertise on daytime TV as a “direct response” tool to reach people who are in the hospital or at home recovering from an accident. “If someone is admitted to the hospital, they call right away,” Abraham said.
In addition to ads for personal injury attorneys, consumers are often inundated with ads for mass tort cases like the current one flooding the airwaves seeking victims of poisoned drinking water in Lejeune. According to Kantar, $206 million was spent on mass casualty advertising through November.
Firms that specialize in recruiting clients, often funded by hedge funds and litigation finance firms, often finance advertising and pay attorneys.
But critics say advocacy advertising has been abused, and efforts are underway to tighten it.
“We’re not saying they can’t advertise. It simply cannot be misleading, fraudulent or unethical,” said Matt Webb, senior vice president for legal reform policy at the US House Institute on Legal Reform. “It is used too often to generate very frivolous and manipulative litigation.”
The number of lawsuits filed is falling, driven by rising litigation costs and stricter state laws designed to raise the bar for litigation.
State courts, which have traditionally been home to about 98% of disputes, are seeing a sharp decline in tort filings, said Stanford’s Engstrom. Fewer than two in 1,000 filed lawsuits in 2015, compared to about 10 in 1,000 in 1993.