Just when I was going to write a substantive post about a recent New Jersey Supreme Court opinion, the leading propagandist for the Fortune 500, the U.S. Chamber of Commerce, came in and released a new report about online advertising by trial lawyers. Tort reform and lawyer marketing in one article? I can’t miss that. (An aside: don’t kid yourself that the U.S. Chamber of Commerce cares the slightest bit about small business. The Chamber is the most anti-free-market lobbying group in the country, an organization dedicated to ensuring the biggest corporations in the country stay that way, squashing small businesses and regular people alike.)
The “study,” technically done by the “Institute for Legal Reform,” is called The Plaintiffs’ Bar Goes Digital. I’m still unclear what the point of the research was, so I’ll just quote their press release:
The plaintiffs’ bar contributes to the commercialization of the legal profession by using a sophisticated and complex combination of paid search advertising and high organic search optimization of websites to generate site traffic – all with the goal of collecting the personal contact information of potential plaintiffs.
Plaintiffs’ firms are devoting millions of dollars to the creation and maintenance of websites, Facebook pages, Twitter handles, blogs and YouTube channels. By measuring Google advertising spends on 125 keywords during a 45-day period and then extrapolating to a 12-month period, we estimate firms will spend more than $50 million on Google keyword advertising alone. To put that in perspective, the Obama for America campaign – often held up as a pioneer in digital advertising – spent $16 million total in online advertising in 2008.
Initially, those numbers are due primarily to three outliers. The report says that Danziger & De Llano, The Lanier Law Firm, and Sokolove Law account for half of that $50 million. No surprise to see Sokolove there; he’s one of the pioneers of attorney advertising.
Let’s put those numbers into some real perspective. Last year the U.S. Chamber of Commence spent over $66 million lobbying representatives. In 2010, it was $132 million. In 2009, $144 million. Since 2006, they’ve spent far more money lobbying than any two other lobbying companies combined. Of course, a quick peek at those top 20 lobbying companies of the past decade shows many asbestos defendants, like General Electric or Northrop Grumman, also paying millions to lobbyists, too.
More perspective? Online healthcare and pharmaceutical marketing is over $1 billion a year. In the wake of the Deepwater Horizon oil spill, BP was buying $3.59 million in AdWords related to the spill every month. Standard search engine marketing tools show that companies like Expedia and Amazon each spend $7-8 million annually on AdWords.
If the point of the study was to portray the plaintiffs’ bar as an unstoppable juggernaut beating up on poor little billion-dollar industries, I’m afraid they’ll need to go back to the drawing board.
But the ILR has a larger point to make: It maintains that the interconnected websites and social-media campaigns sponsored by the plaintiffs’ bar can be rather … questionable. It deconstructs the methods some firms use in the “the online trawl for clients,” including the creation of sites that are little more than web-surfer flytraps designed to capture the personal contact information of potential clients.
“Plaintiffs’ firms,” the report asserts, “are creative in their approach to attracting (and keeping) clients. One approach has been to move into niche practices that may not have even existed a few decades ago and then optimize a web presence to target those seeking resources, support and additional information.”
It’s more than a little disingenuous for the U.S. Chamber of Commerce to extoll the virtues of transparency when they’re so adept at it using Citizens United to run stealth campaign ads, but we might as well consider their argument on its merits.
The report is largely based off of the Google AdWords estimated annual total spend for 125 keywords that the Chamber of Commerce thought would be bought primarily by trial lawyers. Some of the terms are so generic — “arsenic,” “benzene,” “vaccines” — that I doubt lawyers buy any of their ads, unless they want to waste money, and when I searched those three Google didn’t showed me any ads at all, lawyer or otherwise. Other terms they chose — e.g., “asbestos abatement removal” — show ads, but not for lawyers. Yet more searches — e.g., “employment lawyer” — include both lawyers and companies that aren’t law firms but instead publishing companies that make their money as a lead generation service or through advertising.
Expanding on that last component, figure 6 of the study, for example, includes as part of the “litigation industry” both Lawyers.com, which is part of LexisNexis, and LawyersAndSettlements.com, which is a publishing company, not a law firm. They call these websites “lead generator websites,” which I suppose is partly accurate, but they’re not controlled by law firms. As another example, page 27 talks about MedicalMalpractice.com being “owned by trial attorneys,” but it’s really owned by ExpertHub, an advertising network that also markets itself to doctors, like through PlasticSurgeons.com.
Then of course there’s the data itself. Mark Lanier told Alison Frankel at Thomson Reuters the $5 million a year number was a bit high: “We do not pay one penny for online advertising,” he said. “I find this flabbergasting.” Oops. (One quick note: Sokolove is one of Lanier’s biggest referral sources. If some intrepid reporter really wanted to study the plaintiffs’ bar, they’d look into how aggressive tort reform has made the business so costly and risky that few law firms can bear the risk of both funding big cases and heavy advertising, and so many firms do one or the other, but not both.)
So we have some problems with our sample parameters, our data, and our analysis, but let’s get right to the point: there’s undeniably a lot of advertising for asbestos and mesothelioma cases. That’s not surprising, because there are an estimated 60,000 mesothelioma cases yet to be diagnosed and the asbestos settlement trusts are still a big business. (At the moment, though, I bet Actos and Pradaxa lawsuits have more advertising online.) The ILR says the top mesothelioma keyword phrase is “treatment of mesothelioma,” for $79.57. They’re selling it short: right now Google AdWords tells me “mesothelioma support group” goes for between $138 and $180 per click.
It sounds like a ton of money, until you look across that same Google AdWords interface and see the term is searched about 140 times a month across the whole United States, so that it costs $12/day to always be at the top. It’s more than beer money, but it’s not much in terms of online advertising as a whole, and it’s a drop in the bucket compared to what the U.S. Chamber of Commerce spends every day to influence elections and potential jurors.
The only point of interest in the entire study is, as Frankel discusses, whether or not some of the firm websites are stealth advertising:
I do agree with the ILR that plaintiffs firms shouldn’t masquerade on the Internet as advocacy groups or support networks, but [John Phillips of Phillips & Cohen] and [Jamie Bennett of Ashcraft & Gerel] make a fair point. Is there anything wrong with getting information from a plaintiffs’ firm, even if that’s not necessarily the destination you sought when you began a search? In the scenario I wrote about above, for instance, the mesothelioma patient could probably use a good lawyer as well as a good doctor. (And good meso lawyers probably know almost as much about the disease as doctors.) Why is the asbestos victim who obtains information from a plaintiffs’ firm’s website any different from the unsuspecting reader of one of the pro-business newspapers the Chamber finances in plaintiffs-friendly jurisdictions?
Indeed. The Pennsylvania Record — one of many “newspapers” set up in states targeted for tort reform like Illinois, West Virginia, Texas, and Louisiana — is an arm of the Chamber of Commerce’s Institute for Legal Reform, but the sites portray themselves as journalistic outfits, not political advertisements. To give them credit where it’s due, they’ve quoted me twice, and they do often seek out trial lawyers for comment on their stories, but the ILR’s whole point in their study is that the true owners of a website should plaster their identity and biases all over the website — something they emphatically do not do with their Record websites.
In the end, this story isn’t any different from most of the tort reform stories: a tempest in a teapot. If the ILR found anything truly deceptive, erroneous, fraudulent, or false about the information posted on any of these community websites, they didn’t bother to put it their report. I’m far more worried about the possibility that someone diagnosed with mesothelioma will let their claim lapse without knowing their family could be provided for than I am about the possibility that a client will end up learning something about their condition and options from a website that happens to be owned by or connected to a law firm.