“Law Firm’s Ad Campaign Emphasizes Winning, Though it Settles 97% of Its Cases“, so trumpets the ABA Journal blog headline today. Under the banner “Legal Marketing” Debra Cassens Weiss writes,
A new ad campaign for personal injury law firm Jacoby & Meyers asserts that winning is everything, though it settles 97 percent of its cases before or during trial.
Jacoby & Meyers managing partner Andrew Finkelstein tells the New York Times that the firm wins about three out of four cases that result in a verdict at trial. Because the firm has a reputation for winning tried cases, he says, insurers offer sizable settlements. “When clients walk away and accept a settlement and they are happy with it, they feel that they’ve won—it’s a win in their eyes,” he explains.
Joe Palazzolo of the WSJ Law Blog takes a similar tack in “Law Firm Revelation of the Day: Humor Sells”:
According to this New York Times story, the campaign was produced by Korey Kay & Partners in Manhattan. It began in September with several commercials on network and cable stations in New York, New Jersey and Connecticut. More are set to air starting Nov. 1.
Allen Kay, chief executive of Korey Kay, told the Times the typical personal-injury ad talks down to consumers and is rife with commands: ‘If you’ve been injured, come to me,’ and ‘Come in for a free consultation’ and do this and do that.”
Kay’s formula is simple. Clients are looking for success. So his agency proposed an equally simple strategy.
“We told them we believe your strategy is one word and that’s ‘win,’ and your tone is that you’re human beings,” Kay told the Times. And humor, he said, helps humanize the firm.
Of course, LBers, you are a sophisticated bunch. Sure it’s clever, you’re saying, but don’t these cases usually settle? Is that really winning?
In fact, the firm settles 97% of its cases before or during a trial, said Andrew Finkelstein, the managing partner of Jacoby & Meyers. Of the 3% decided at trial, the firm wins about three out of four cases, he said.
If that’s the case, said Allan Ripp, a New York publicist who represents many law firms, the ads “have a very clever concept, but it’s more sizzle than steak.”
Finkelstein, responding, told the Times his firm’s reputation for winning trials was what prompted insurance companies to offer sizeable settlements. And the decision to settle, he added, is made by the client, not the firm.
Here’s the Jacoby & Myers ad in all its splendour:
George Wallace, a partner in the law firm of Wallace, Brown & Schwartz, in Pasadena, California and author of two of my favourite blogs: a fool in the forest and Declarations and Exclusions wryly observes on Twitter (@foolintheforest)
Both posts suffer from the conceit of legal marketing dressed up as “news”. Where are the probing questions or the juxtaposition of marketing and ethics? Is promoting one’s firm as a “winner”, despite the actual client settlement rate of 97%, truthful and accurate?
The counter-argument that settlement is a “win-win” scenario is easily dispensed with. Too often we hear mediators, judges and opposing counsel fall back on the cliche that “when BOTH sides to a settlement negotiation walk away thinking that they could have done better, than the settlement must be a fair one.” Fairness is one thing. Winning is altogether another. Just ask Charlie Sheen.
Finally, consider the text of the ABA’s Model Rules of Professional Conduct, Rule 7.1 which reads:
Information About Legal Services
Rule 7.1 Communications Concerning A Lawyer’s Services
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
The ABA Rule 7.1 Commentary further states:
Information About Legal Services
Rule 7.1 Communications Concerning A Lawyer’s Services – Comment
 This Rule governs all communications about a lawyer’s services, including advertising permitted by Rule 7.2. Whatever means are used to make known a lawyer’s services, statements about them must be truthful.
 Truthful statements that are misleading are also prohibited by this Rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer’s communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation.
 An advertisement that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case. Similarly, an unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client. [emphasis added]
Perhaps next time the ABA Journal and the Wall Street Journal will focus on less on the PR “sizzle” and offer up some ethical “steak” (apologies to PETA).