Tip the scales of justice your way.

Chuck Gardner

Las Vegas Weekly
November 23, 1994

    One of the questions on the Nevada Bar exam in 1984 asked us whether attorneys should be allowed to advertise. My answer - "Yes" - was probably quite ordinary, but my reasons probably were not. The ban on lawyer advertising, so we learned in law school, was to protect the dignity of the profession. This, I said, was a hoax. No amount of advertising, properly regulated, I said, could mislead the public as much as this false "dignity." Allowing attorneys to advertise would inform the public of the truth - that lawyers are not much different from car salesmen out to make a profit. The real reason for the ban on lawyer advertising, I continued, was to dupe the public into thinking that lawyers were nobler than they are. Let them out of the closet of false dignity, let them advertise, let them say stupid things on television, let them be themselves, and the public will know them for who they are.

    They passed me anyway.

    The total ban on lawyer advertising lasted until 1977 when the United States Supreme Court decided that lawyers may advertise in local newspapers what they charge for routine legal services. The paternalistic approach of protecting the people by keeping them ignorant, as the Court described it, was discarded for a broader view of the right of free speech. Advertising is the way we learn about suppliers of goods and services, including attorneys.

    False, misleading, or deceptive advertising may, of course, be banned, and the rules for television might be stricter. As for the argument that advertising would lower the dignity of the profession, the Court said: "It is at least somewhat incongruous for the opponents of advertising to extol the virtues and altruism of the legal profession at one point, and, at another, to assert that its members will seize the opportunity to mislead and distort." If not both, then which? The Court commended "the spirit of public service with which the profession of law is practiced and to which it is dedicated." I had a slightly dif ferent view.

    In 1985 the Court gave its blessing to a newspaper ad that pictured a defective birth control device and asked women who had used it if they would want to join in a lawsuit. This might "stir up litigation," although it is not better, said the Court, "for a person to suffer a wrong silently than to redress it by legal action." In 1988 the Court approved a letter mass-mailed to persons whose homes had been foreclosed on. There is nothing different about this method of reaching clients, said the Court, except that it's more efficient, and there's nothing wrong with efficiency. Although a lawyer may not solicit in person, "a letter, like a printed advertisement (but unlike a lawyer), can readily be put in a drawer to be considered later, ignored, or discarded."

    Maybe we just need bigger drawers.

    Lawyers have been telling us now for a decade how they can "tip the scales of justice."  We laugh at these awful statements, joke about them, and ridicule them, but most of all, we fall for them, and in large numbers. Attorneys who spend lots of money saying dumb things on television are raking it in. The ultimate commercial is the TV talk show where the attorney pays for the broadcast time to appear to be some kind of legal expert or celebrity when he is not.

    What all of this does is bring in the clients. So many of them, in fact, that the attorney can't practice law anymore, if ever he did. Instead, he hires dozens of kids out of law school to handle the cases. Because he's too busy doing the talk shows, acting for the commercials, posing for the billboards, and running for public office, he can't even supervise his staff, although this is not a total loss. To compensate, and to make sure they're actually working, he will frequently pay his inexperienced attorneys a percentage of what they bring in. The key to making money from volume advertising is volume work. Since the ads are quickly sucking in the cases, the goal is to quickly blow them out. The faster the kids turn the cases over, the more everybody makes.

    Except, of course, the clients. It's no accident that the firms doing the most advertising are looking for accident cases. That's where the volume is and where the attorney doesn't have to leave his desk to get a quick settlement. The client is victimized now twice, since he didn't need an attorney to dial the phone. Attorneys are handy to convince insurance companies that you can whip them at trial, but these phone jockeys are no threat.

    A study of the effects of attorney advertising on Nevada jury verdicts was published in the Nevada Bar Journal in July of 1991 and in the American Bar Association Law Journal the following October. The study examined 45 verdicts, 23 for the defense and 22 for the plaintiff. Although the verdicts were equally split between the plaintiffs and the defendants, the study found that "83% of those jurors with an advertising plaintiff's attorney favored the opposing side." Wherever an attorney appeared in court who advertised on television, the jurors gave the other side significantly higher marks for credibility, sincerity, and presentation skills. Whether this is a result of a bad attitude toward attorneys who advertise, or bad attorneys, or both, is unknown. It may also be irrelevant.

    An editorial in the American Bar Association Journal of August of 1993 tells us that most lawyers who advertise do not try cases, sometimes for fear that jurors will resent them, sometimes because it's just easier not to, and sometimes because they're just "too busy." It may also be because they don't have a clue. What such attorneys "lack in expertise and drive and experience they make up for in glitz and show." Firms that advertise are often committed to letting paralegal staffs, clerks and secretaries do the bulk of the work, and then some." Finally, we're told, attorneys who advertise are ''simply trolling...for the easy case and easy money."

    Well, I was right and I was wrong. Attorneys have certainly proven themselves to be no different from car salesmen, but we've only gone from false dignity to undignified falsity and few people seem to have learned anything.

    Let attorneys be themselves, and they'll just replace one hoax with another.