If you were diagnosed with bladder cancer after using Actos and are reviewing your legal options, please see my Actos Bladder Cancer Lawyers page for patients. 

I wrote this post for my legal blog, which is ordinarily read by other lawyers. Patients looking for legal help should read the Actos page linked above. 

Personal injury law isn’t like running an ordinary business, not even an ordinary law practice, because of the risk involved in taking cases. Defective drug and consumer products lawsuits exemplify both extremes of our work: the cases are enormously expensive to pursue and require a tremendous amount of attorney time, but they also have the potential to be lucrative blockbusters.

Problem is, once a drug or product is shown to be unreasonably harmful by a study or a recall, there’s no way for us to know for certain what the courts will do with the lawsuits. We don’t roll the dice — it’s much more rational and systematic than that — but we have to play the odds. So it will be with Actos lawsuits: we believe the drug was inadequately tested and didn’t warn patients of the risks, and will vigorously pursue cases against their manufacturer, but the cases aren’t without considerable risk.

Consider the denture cream lawsuits. To paraphrase what I wrote last week while discussing asbestos lawyers, GlaxoSmithKline settled the vast majority of Super Poligrip claims, but Proctor and Gamble fought the Fixodent cases, resulting a judge dismissing one of the bellwhether cases on Daubert grounds.

One of the drug cases trial lawyers are pursuing these days involve Actos (pioglitazone), the best-selling Type 2 Diabetes drug in the world. The Associated Press recently wrote about the “wave of lawsuits” filed against Takeda Pharmaceuticals:

TRENTON, N.J. — The maker of the world’s best-selling diabetes drug is facing hundreds of lawsuits and likely a big sales drop as suspicion grows that taking the pill for more than a year raises the risk of bladder cancer. …

both the U.S. Food and Drug Administration and the European Medicines Agency have issued warnings about the cancer risk based on new research, but they have allowed sales to continue. Doctors are being told not to prescribe Actos for people who have or have had bladder cancer.

The warning will limit patient choices and could spell the end for a once-promising class of Type 2 diabetes drugs that debuted more than a decade ago amid heavy promotion.

An FDA warning that a popular drug increases the risk of any type of cancer or heart disease virtually guarantees the filing of thousands of lawsuits, and pioglitazone is no exception: it raises the risk of bladder cancer by more than 40%, or an “extra 28 cases a year for every 100,000 people taking it.” The irony is why Actos is so popular:

Actos, despite links to heart failure risk and other serious side effects, became the No. 1 diabetes pill after Avandia, the only other drug in that class, was found in 2007 to sharply increase risk of heart attacks. Avandia’s use was banned in the EU and sharply restricted here. Actos sales jumped from about $2.9 billion in 2006 to more than $4.3 billion last year.

Avandia’s restriction, of course, prompted its own wave of lawsuits, and GlaxoSmithKline has settled about 12,000 of them for around $700 million. Assuming the clients are on one-third contingent fee agreements, that’s over $200 million for the lawyers. I don’t say that to be critical; one of those firms, for example, recently spent hundreds of thousands of dollars on an antitrust action just to lose and then also get hit with almost $600,000 in costs. It’s a big-risk, big-reward kind of business, and one of the few elements of society keeping medical products safe in light of the broken clearance processes we have for new drugs and devices.

Which brings me to one of the lessons this episode has for lawyers trying to build a personal injury or product liability law practice.
Continue Reading Lawyer Branding And The Race For Actos Bladder Cancer Clients

John Wait is a second-year attorney in North Carolina, a solo practitioner who has been trying to develop experience and a reputation by serving on the court-appointed criminal defense counsel list (a common recommendation made to new lawyers). He’s worried about obtaining enough clients that way, so he wrote a basic question to the American Bar Association’s “Solosez” listserv:

Here are my ideas [to bring in more clients]:

1. Bite the bullet and pay for traffic ticket lists. Do mailings.

2. Pay for SEO to increase my website’s search engine effectiveness.

3. Continue networking as much as possible.

Not the first time someone has discussed marketing for young attorneys on the internet. E.g., see my own Why It’s Hard For BigLaw Associates To Start Rainmaking.

Brian Tannebaum, a criminal defense lawyer in Miami (his website says he did consulting for CSI: Miami, so we know he’s all about professionalism, not marketing) wrote back:

Don’t buy traffic ticket lists, fire the SEO fraud, and yes, network. Buy lunch for people, sponsor charitable events, speak at the local Rotary club, say hello at your kids school, reconnect with old friends, take a small ad out in the local business journal, get on a Bar committee, write about something interesting.

Time-tested advice (though I’ll asterisk the SEO for a moment), as also reflected by Scott Bovitz’s recollections about changes in the legal profession over the past thirty years (found via Legal Writing Prof):

In 1980, a client found a lawyer by reputation and word of mouth. Martindale Hubbell was a daily tool, and lawyer certification was still a pilot program. Lawyers promoted themselves by public service, getting quoted in the paper, writing articles, and volunteering in organizations. In 2011, clients still find lawyers by reputation and word of mouth. But Martindale Hubbell is now part of LexisNexis. State and national certification programs abound, and lawyer advertising is everywhere. But lawyers still like to be quoted.

I’d also add these ten marketing tips for first-year and second-year associates, particularly:

1. Excel at the Basics

Take every opportunity to learn and hone your lawyering skills. Arrive on time and stay until the job’s done. Ask thoughtful questions. Pay close attention to detail. Meet your deadlines. Seek feedback about your performance. As a first or second year associate, your clients are the partners of the firm. Partners notice when associates are in the office late or when they’re slipping out early on Friday afternoons. Make sure you earn their notice in a positive way by just becoming the best lawyer you can be.

2. Find a Really Good Mentor

Don’t wait on your firm to establish a formal mentor program. Identify and spend time with that lawyer who embodies what you want to be and emulate his or her good behaviors. Since you’re asking your mentor to be generous with his or her time and talents, reciprocate by delivering yours. Find opportunities to do good work for your mentor.

The second point also works well for young lawyers who either decided to or were forced to hang out a shingle: find a mentor. There’s no better teaching or marketing tool. Luke Skywalker and the Karate Kid were nobodies until they were trained by their mentors.

If you don’t have a mentor from law school or family relationships, then find one another way. Bust your behind on a political campaign or charitable cause; that’s a great way to start networking among practicing attorneys, since campaigns are loaded with not just lawyers, but connected lawyers who like to make friends and like to connect people.

Didn’t work? Cold-call some lawyers you respect and ask them if they could possibly meet with you just to discuss, briefly, how to get started. Don’t ask them for a job or for networking; if they like you, they’ll help you with the networking. Cold-call some other lawyers and offer to work for them for free in exchange for some guidance. Maybe rent some office space from them, paying your way, and ask them if they’ll help you informally, maybe even refer you a case or two.

Then, with your mentor’s (sometimes critical) guidance and (maybe verging on cruel) tutelage as often as you can get it, build your practice the way you’d built a cake store or a plumbing business: through superior quality, exceptional customer service, making calls and wearing down your shoe leather. Get your name out there and make sure it’s associated with quality.

Continue Reading Young Lawyer’s Guide To Legal Marketing (And Snark Mentoring)