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August 13, 2003

Indiana High Court Huffs and Puffs Over P/I Ads

Filed under: pre-06-2006 — David Giacalone @ 2:11 am


What’s more insulting and injurious to the consumer: annoying-but-humorous personal injury ads that only an idiot would believe, or court decisions that assume consumers really are idiots? The Indianapolis Star carried an Associated Press report last week (by Mike Smith, Aug. 9, 2003) on just such a decision by the Indiana Supreme Court. [link to the article from law.com Newswire, 08-13-03, and to the decision in Matter of Keller & Keller from The Indiana Law Blog, 08-08-03]


The Court publically reprimanded the firm Keller & Keller for a series of tv dramatizations in which insurance executives are terrified into settlement by just hearing the name of the firm. According to the AP article, the Court concluded:


“The respondents’ advertisements create an impression that the claims they handle are settled, not because of the specific facts or legal circumstances of the claims, but merely by the mention of the name of the respondents’ firm to insurance companies.”


With all due respect, this is just plain silly, highly insulting to consumers, and a waste of judicial resources.   The Federal Trade Commission knows a thing or two about misleading and deceptive ads.   As the FTC explained in its Policy Statement on Deception (1983), “[W]e examine the practice from the perspective of a consumer acting reasonably in the circumstances.   If the representation or practice affects or is directed primarily to a particular group, the Commission examines reasonableness from the perspective of that group.” Therefore:



The Commission generally will not pursue cases involving obviously exaggerated or puffing representations, i.e., those that the ordinary consumers do not take seriously.


North Carolina case involving the same ad campaign is described in an AP article archived at the highly informative First Amendment Center  (“Lawyers’ dramatic TV ads don’t make cut for federal judge,” AP, 07-25-01). The article quotes David Daggett, whose law firm ran the offending ad (over 10,000 times):



“We understand that law firm advertising makes some lawyers uncomfortable, especially with dramatizations,” said David Daggett, whose law firm sued the State Bar over the right to air the commercial.


“But the bottom line is that consumers are savvy enough to recognize that it’s just a commercial,” he said yesterday.


For an excellent history of First Amendment cases dealing with lawyer advertising, including links to the decisions, see the Overview by David L. Hudson, Jr., research attorney for the First Amendment Center.


If courts and bar associations really want to help personal injury victims, they should start making sure that contingency fees are reasonable and that clients are fully informed about their right to negotiate over the percentage charged.   And, they should stop wasting their time fuming over ads that we all love to hate, but are all about familiarity and name recognition, not believable claims. 

8 Comments

  1. If these are the ads I’m thinking of, they are generic ads run all over the country with different firms’ names substituted in. I think the Virginia firm using them (M&H) is being scrutinized by the Bar as well.

    When I first saw these ads I thought they were clever because no client which came to the firm could ever claim he didn’t know the law firm settled claims when he didn’t get his day in court. But having seen them almost daily for the last several years, I think that if the Bar is going to go after any advertising these are probably the ones to get. Their one and only message is this: insurance companies are scared to death of us and will throw money in our direction to keep from going to court. The repitition of this message day after day after day leaves an imprint. Maybe it won’t cause a sophisticated consumer to choose that firm but it’s not aimed at sophisticated consumers. This is meant to stick in the mind of the construction worker who didn’t complete the 10th grade and who is going to go to the firm he “knows” will get him the most money for his accident.

    The ad’s also clearly misleading; Allstate ain’t gonna settle more favorably just because M&H is on the case.

    Comment by ken — August 15, 2003 @ 9:39 am

  2. If these are the ads I’m thinking of, they are generic ads run all over the country with different firms’ names substituted in. I think the Virginia firm using them (M&H) is being scrutinized by the Bar as well.

    When I first saw these ads I thought they were clever because no client which came to the firm could ever claim he didn’t know the law firm settled claims when he didn’t get his day in court. But having seen them almost daily for the last several years, I think that if the Bar is going to go after any advertising these are probably the ones to get. Their one and only message is this: insurance companies are scared to death of us and will throw money in our direction to keep from going to court. The repitition of this message day after day after day leaves an imprint. Maybe it won’t cause a sophisticated consumer to choose that firm but it’s not aimed at sophisticated consumers. This is meant to stick in the mind of the construction worker who didn’t complete the 10th grade and who is going to go to the firm he “knows” will get him the most money for his accident.

    The ad’s also clearly misleading; Allstate ain’t gonna settle more favorably just because M&H is on the case.

    Comment by ken — August 15, 2003 @ 9:39 am

  3. You have zeroed in on the most important question, Ken — does this ad mislead consumers?   That is something that could have been settled with a single well-designed (and probably relatively simple) poll/study.  It does not appear that the ethics committee did such a study. 
    Is the “impression” given by the ad any more misleading than the beer or car ads that promise a better love life?  Until proven otherwise, I do not believe that consumers are so stupid they need to be protected by these ads.  The point of the repetition is creating the name-recognition and mental stick-em-note when you do need a p/i lawyer — the same goal as every other personal injury add.
     

    Comment by David Giacalone — August 15, 2003 @ 11:10 am

  4. You have zeroed in on the most important question, Ken — does this ad mislead consumers?   That is something that could have been settled with a single well-designed (and probably relatively simple) poll/study.  It does not appear that the ethics committee did such a study. 
    Is the “impression” given by the ad any more misleading than the beer or car ads that promise a better love life?  Until proven otherwise, I do not believe that consumers are so stupid they need to be protected by these ads.  The point of the repetition is creating the name-recognition and mental stick-em-note when you do need a p/i lawyer — the same goal as every other personal injury add.
     

    Comment by David Giacalone — August 15, 2003 @ 11:10 am

  5. Ken, I should finish the thought from my last reponse.  I don’t think the “message” given by the terrified insurance executives is any more likely to mislead or deceive than ads claiming to give personal service to each client, or to get you “all you deserve,” or to put you in touch with “Heavy Hitters” or “The Hammer” or lawyers who especially understand a woman’s perspective.   Nor are consumers any more likely to be misled than they are by tesimonials of clients who claim to have become “friends” with their lawyer or are certain they got better results than if they had gone elsewhere. 
    Often, that “construction worker” you mention has a lot more street smarts and common sense about b.s. than people with lots of degrees (who, for example, are just certain they need antibacterial soap and expensive bottled water, and gigantic SUVs to keep their children safe in traffic).   The notion that he needs protection from typical advertising bravado and puffery is patronizing — just the type of paternalistic claptrap the bar has used for centuries to “protect” clients and just incidentally protect themselves from competition, and protect the “dignity of the profession.”  Going after these ads has far more to do with anti-advertising animus than with making the air waves safer for consumers. 

    Comment by David Giacalone — August 15, 2003 @ 12:22 pm

  6. Ken, I should finish the thought from my last reponse.  I don’t think the “message” given by the terrified insurance executives is any more likely to mislead or deceive than ads claiming to give personal service to each client, or to get you “all you deserve,” or to put you in touch with “Heavy Hitters” or “The Hammer” or lawyers who especially understand a woman’s perspective.   Nor are consumers any more likely to be misled than they are by tesimonials of clients who claim to have become “friends” with their lawyer or are certain they got better results than if they had gone elsewhere. 
    Often, that “construction worker” you mention has a lot more street smarts and common sense about b.s. than people with lots of degrees (who, for example, are just certain they need antibacterial soap and expensive bottled water, and gigantic SUVs to keep their children safe in traffic).   The notion that he needs protection from typical advertising bravado and puffery is patronizing — just the type of paternalistic claptrap the bar has used for centuries to “protect” clients and just incidentally protect themselves from competition, and protect the “dignity of the profession.”  Going after these ads has far more to do with anti-advertising animus than with making the air waves safer for consumers. 

    Comment by David Giacalone — August 15, 2003 @ 12:22 pm

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