Drive down any highway in the US 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? Slipped at the store? Call this attorney now for compensation,” is a typical ad for a plaintiff personal injury attorney. A lawyer often appears behind a desk or in court in the ad, and a phone number spelling out a word or phrase flashes on the screen for viewers to call.
There was a stigma surrounding lawyer advertising, and it was restricted for much of the 20th century until the Supreme Court ruled in 1977 that it violated First Amendment protections. The court said the restriction puts access to legal services at a disadvantage “particularly for those who are not yet poor and ignorant”.
The decision opened the floodgates for attorney advertising. Tort claims proliferated in the 1980s, in part because of damages claims by asbestos-exposed workers.
Spending on legal services advertising on television reached $1.2 billion as of November, according to Kantar.
Many personal injury lawyers have a lot of hype due to competition and the unusual business models employed by many practices. Ads can also help clients who don’t know any personal injury attorneys, can’t rely on a recommendation, or don’t know their legal rights.
“I advertise to showcase my business and hopefully attract business,” said John Morgan, founder of Morgan & Morgan, the largest injury law firm in the country.
Morgan has appeared on lighthearted TV shows and on billboards with the tagline “For the People.” Morgan’s most successful ads, he said, are those that inform people about rights they may not know.
In personal injury cases, “clients tend to be one-timers, and you don’t have repeated interactions with the agency,” said Samuel Issacharoff, a professor of tort law at New York University School of Law. “The question is always how do you make the connection between the injured common man and the lawyer?”
Personal injury lawyers have a variety of advertising practices, said Nora Freeman Engstrom, a Stanford Law School professor who studies attorney advertising. Some attorneys who advertise handle cases themselves. Other attorneys advertise, then refer the cases they receive to other attorney networks, and get a cut of the revenue.
Then there are what Engstrom calls “settlement factories” — personal injury lawyers who resolve a large number of cases but “not necessarily focus on maximizing the value of each individual claim.” These attorneys advertise to take on as many cases as possible.
Most personal injury attorneys charge a contingency fee, so they only get paid if they negotiate a settlement for their client or win a case at trial. Fewer than 1% of cases go to trial. Their fees typically range from 33% to 40% of the total award.
The contingency fee structure is the only way many people can afford accident legal representation.
“It really becomes an advertising and marketing game for personal injury lawyers,” said Jason Abraham, vice president of Hupy & Abraham, the largest personal injury law firm in the Midwest. You’ll never be an actor in the marketing circus. No way.”
The company hired actor William Shatner as a paid advertising spokesperson. Using Shatner was “a game changer for us” and “gave us instant credibility,” Abraham said. Shatner’s ads helped the law firm break into new markets like Iowa.
Personal injury companies often advertise on television during the day as a “direct response” tool to reach people recovering from accidents in the hospital or at home. “If someone was lying in the hospital, they would call immediately,” Abraham said.
In addition to ads for personal injury lawyers, consumers are often inundated with ads for mass tort cases, such as the Camp Lejeune ad seeking victims of poisoned drinking water that is currently filling the airwaves. According to Kantar, as of November, $206 million was spent on mass infringement advertising.
Firms that specialize in recruiting clients, often funded by hedge funds and litigation finance firms, often fund advertising and refer claims to lawyers, for a fee.
But critics say the attorney ad is misused and efforts are underway to take it down.
“We’re not saying they can’t advertise. It can’t be misleading or deceptive or unethical,” said Matt Webb, senior vice president for law reform policy at the U.S. Chamber’s Institute for Legal Reform. “It’s been used so often that it’s spawned a plethora of frivolous and speculative lawsuits.”
The number of lawsuits filed is falling because of higher costs to file lawsuits and stricter state laws designed to raise the bar for litigation.
According to Stanford’s Engstrom, about 98% of tort suits have traditionally been heard in state courts, but the number of tort suits has dropped dramatically. Fewer than 2 in 1,000 people filed infringement lawsuits in 2015, down from around 10 in 1993.