Adding Insult to Injury

Pulling the plug on attorney advertising could get somebody sued -- including the State of Colorado

Comments (0) By Alan Prendergast Thursday, May 9 1996

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Anderson says he's tried to "maintain a collegial discussion" with the advertisers, but the debate has grown quite heated at times. Indeed, he fired one of the most strident volleys in a 1994 letter published in Trial Talk, the CTLA's magazine, in which he likened advertising lawyers who wrapped themselves in the First Amendment to "dressing a bag lady in an Oscar de la Renta evening gown."

"I do not dispute our colleagues' First Amendment right to advertise," the CTLA's president-elect wrote. "I also do not dispute the right of the Neo-Nazis to march in Skokie...The whole point of advertising is to deprive the public of choice, to manipulate the viewers' minds so they eliminate other possibilities and choose the advertising lawyer."

The letter drew outraged responses from advertisers, particularly Jewish lawyers who took exception to what they considered an odious comparison to Nazidom. Anderson apologized in a subsequent letter and said that no such comparison was intended, but he stuck by his main point: Not only is advertising misleading, he insisted, but it reinforces in juries a negative opinion of personal-injury lawyers and their clients.

The trial lawyers Anderson talks to "are concerned about the impact of advertising on verdicts," he says now. "In jury selection, people say they're concerned about lawsuit abuse, that there must be a lot of lawsuits going on if these people can appear on television day after day asking people to come to their doorstep."

The public perception of lawyers as ambulance chasers has made it increasingly tough to win in court, he adds. "I've got several rear-end collision cases now. They're extremely difficult, even with the most seasoned attorneys handling them. In fact, they're being lost half the time. Why are they being lost? Is there a problem with juries believing that this is just one more crazy whiplash case? I don't sit in the jury room, so I can't say, but you've got to be concerned about anything that validates the potential juror's belief that there are lawsuit-happy people in Colorado."

Advertisers, though, say that the public myth of a litigation explosion is the result of insurance-industry propaganda, not commercials. They contend that over the past decade, tort reform and a glut of competition in Colorado have done more to drive down jury verdicts than all the Norton Frickey ads ever aired and that the public isn't the least bit upset about advertising. "There's never been a cry from the public at all," says Stephen Kaufman.

"I don't necessarily agree," responds Anderson. Clients and friends who've "had the opportunity to stay at home in the daytime" and been barraged with ads have told him that "they thought this made the profession look like it was overrun with greedy, marketeering lawyers," he says.

But if the public's fed up, they're not complaining to the right people. Last year, out of 1,550 written complaints about attorney conduct filed with the Colorado Supreme Court Disciplinary Counsel, only eleven dealt with advertising--and all of those had to do with direct-mail solicitation.

"I don't think we've had one in a long time related to TV and radio," says Michael Henry, the court's chief investigative counsel. "Most folks, if they don't like it, they just hold their nose. But they don't get around to filing complaints here. Even if they did, we wouldn't deal with it, because advertising is a First Amendment right that attorneys have, as long as it's not misleading."

Most of the complaints Henry receives concern attorneys accused of neglecting cases, being incompetent, failing to communicate with their clients or being dishonest--all ethical violations that can lead to disbarment, suspension or censure. Ads featuring miniskirts and car crashes fall into another category altogether.

"We do not attempt to discipline attorneys for unprofessional conduct," Henry explains. "It's impossible for us to draw the line as to what's unprofessional and what isn't, what offends people and what doesn't."

Attorneys have a hard time drawing that line, too. The current president of the CTLA is Larry Trattler, whom Kritzer describes as a "born-again nonadvertiser." A decade ago, Trattler was part of Sarney, Trattler & Waitkus, a high-profile personal-injury firm best known for its TV commercials depicting a courtroom scene in which attorneys and the judge chant "Mumbo jumbo, mumbo jumbo" in front of a bewildered client.

That was a long time ago, Trattler says, adding that today he doesn't feel comfortable discussing his personal views on advertising. Although the CTLA's executive committee has recommended that the task force proposal be sent on to the Supreme Court, Trattler insists the organization as a whole hasn't taken a position. "We just thought it should be forwarded to the Supreme Court so it could be debated fully," he says.

Stuart Kritzer watches Stuart Kritzer on a video monitor in his office. The commercials are low-key, warm-and-fuzzy spots, just Kritzer sitting in front of a roaring fire, talking about how, in a time of crisis, the average Joe needs an advocate in the legal system. Behind him is a framed photograph of rosy-cheeked children. Several of the segments seem impromptu and are, in fact, unscripted; Kritzer just lets the camera roll until he comes up with a thirty-second sound bite he likes.