Adding Insult to Injury

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Early drafts of the CBA task force's proposal, which Anderson helped write, included several tough provisions that have since been dropped, including an outright ban on all testimonials or endorsements, a prohibition on the use of dramatizations or background sound ("other than instrumental music"), and lengthy disclaimers advising the public that choosing a lawyer is an "extremely important decision" that "should not be based solely on advertisements or self-proclaimed expertise." Advertisers complain that such restrictions would have made their ads unwatchable and would have eaten up valuable air time with disclaimers; as it stands, the final proposal prohibits testimonials that imply a prospective client can achieve a similar result and requires that any mention of "no recovery, no fee" be accompanied by a warning that the client is still liable for court costs.

Anderson defends the measures as sensible and reasonable. Testimonials, he suggests, are inherently misleading because they "carry with them a promise of good results. Anybody in this business knows that no matter how hard you try, results can't be guaranteed. I tend to believe results shouldn't be suggested."

But advertisers regard the new rules as a selective kind of censorship. Kaufman, for example, doesn't see any difference between an honest testimonial--"This attorney did a good job for me"--and the kind of discreet referrals from satisfied clients that traditional firms have always relied on to get business. Media executives, including KUSA president Joe Franzgrote, have also written to the CBA expressing their concerns about how the rules might impact commercial speech, pose a restraint of trade--and affect their own bottom line.

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."

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Alan Prendergast has been writing for Westword for over thirty years. He teaches journalism at Colorado College; his stories about the justice system, historic crimes, high-security prisons and death by misadventure have won numerous awards and appeared in a wide range of magazines and anthologies.
Contact: Alan Prendergast