Published By: Maxwell S. Kennerly, Esquire

Lawyer Marketing

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Soon after the Super Bowl concluded, I received an email from a college classmate, addressed to me and another attorney from our class: “Did you guys see this Super Bowl ad that ran only in Georgia last night? As attorneys, perhaps it speaks to your own professional pride.” The link was to personal injury attorney Jamie Casino’s two-minute tale of sin and redemption (with a prominent flaming sledgehammer), described variously as “the Most Insanely Epic Super Bowl Ad Last Night” (Slate) and “Ridiculously Badass” (Adweek) and “Batshit Amazing” (Deadspin).

Four points come to mind.

First, the ad was only possible because of Georgia’s sensible rules on attorney marketing. In many states, like Florida, Casino’s ad would have been prohibited by absurd Bar Association rules that go so far as to “prohibit images of an American flag, the Statue of Liberty, and a cactus,” as I discussed back in December. You can see in the comments to my post about Florida’s rules former Georgia Bar President Ken Shigley describing the sensible approach they took, which simply prohibits “false, fraudulent, deceptive or misleading” advertisements, and then requires certain disclaimers.

Second, to all the traditionalists who believe that flashy ads like Casino’s inherently demean the legal profession, I say, to paraphrase Bob Dylan, is there anything more American than advertising? Whatever the ad’s positives and negatives, the ad tells potential clients a lot about Jamie Casino — and that’s a good thing. Lawyers are not wholly interchangeable. The reason that superlatives like “best” and the like are sometimes prohibited in attorney advertising is because they’re meaningless, and Jamie Casino’s ad is anything but meaningless.

However, just because Jamie Casino should be able to make such an ad doesn’t mean that he should actually do it.
Continue Reading Jamie Casino and The Super Bowl Ad: Just Because You Can Doesn’t Mean You Should

When I saw it, I had to double-check to see if it was a joke. The report said the Florida Bar  precluded a law firm from posting on its blog remarks like, “[the days] when we could trust big corporations … are over,” “Government regulation of … consumer safety has been lackadaisical at best,” and “when it comes to ‘tort reform’ there is a single winner: the insurance industry,” because such statements of opinion are not “objectively verifiable.” If that was the rule everywhere, then the ABA Journal’s list of top blawgs would be very dull indeed.

Could that report about the Florida Bar possibly be true? Two centuries ago Thomas Jefferson said “banking establishments are more dangerous than standing armies.” Less than a month ago Pope Francis decried how today “Human beings are themselves considered consumer goods to be used and then discarded.” But the lawyers who take on the banking establishments and hold corporations accountable for treating people like disposable goods can’t say the same?

Turns out the Florida Bar really did tell Searcy Denney Scarola Barnhart & Shipley PA that their blog violated that Bar’s most recent restrictions on attorney advertising because those statements of opinion were not “objectively verifiable.” Quite understandably, the firm has filed a First Amendment challenge to the restriction (complaint here). 
Continue Reading The Florida Bar Sued For Prohibiting Lawyers From Having Opinions

On Monday, the ABA Journal released its 6th annual “Blawg 100,” this time including your’s truly’s little home on the Internet. It is, to use the term I used two-and-a-half years ago to describe the benefits of writing a legal blog, “more pie,” and I’m always happy to receive more pie. If you’ve found my blog useful in your practice in the past, or just an interesting read, I’d be much obliged if you stopped over there and voted for me in the “Trial Practice” category. (As an aside, Pennsylvania lawyers cleaned up in the Trial Practice and Torts categories — four honorees combined, more than any other state.)

I’ve been blogging here for over five years, and this is my 880th post. I consider this blog to be a success: I was able to impress my mom, I’ve been invited to speak on panels, I was asked to write a practice guide for lawyers, and a reader once recognized me by my name tag at a party hosted by a law firm. Hundreds of thousands of strangers have read my work, and a couple dozen of them have taken the time to carefully explain to me how wrong I am about everything.

So, as a self-described “successful” blogger, here are some thoughts on blogging itself. 
Continue Reading Doing The Best You Can As A Writer (Thoughts On The ABA Journal’s Blawg 100)

You don’t have to go far to find a lawyer referring to himself or herself as “aggressive” or “tenacious” (though I have yet to see ads for a “bellicose” or “obstinate” lawyer). It’s not as common to see animals known for aggression (like the Honey Badger) since the Florida Supreme Court said it was an ethical violation for a law firm’s television commercials to make reference to pit bulls in The Florida Bar v. Pape, but there are still plenty of “bulldog lawyers” out there.

It’s not hard to see the intent behind self-described “aggressive” lawyers, who tend to show up most commonly (but not exclusively) in the fields of criminal defense and civil litigation. Someone in the market for a criminal defense lawyer or a litigator, of course, is going through one of the worst periods in their life: they’re either being prosecuted or sued, or they were recently hurt or cheated. The “aggressive” or “tenacious” lawyer swoops in to prey upon their fears and manipulate their emotions, promising them a form of rough justice that sounds loud and angry and looks like the lawyers on television.

What these lawyers don’t mention is that “aggressive” lawyers are hated by other lawyers, who discuss among themselves how to handle these obnoxious bozos as if they were mentally ill, and then try to mentor younger lawyers to not behave that way. They’re hated even more by judges, who have to strain not to hold the poor choice of counsel against the client. Putting on an obnoxious show can entertain clients, but it rarely advances the client’s case; “winning” in the law looks less like Lt. Kaffee yelling about the truth in court than like than Adm. Nelson wandering through his gardens pondering new battle tactics that will crush the French and Spanish fleets.Continue Reading Ethics, Civility, And The Aggressive Lawyer

There is no shortage of information on the Internet about how to start a solo or very small law practice, perhaps because there are too many recent law graduates unable to find firm jobs and so become “suddenly solo” young lawyers, and I don’t mean to add more general advice to that big pile. I’ve never been a solo practitioner; I am, however, responsible for my own cases and accountable for my own revenues and expenses, and I have also seen my fair share of other lawyers who struck out to be solos and then, well, struck out.

In the big picture, I think Jordan Rushie’s reality-check about starting a solo practice and this interview on The Girl’s Guide To Law School give some of the best single-article advice on the internet about running a practice. New lawyers with their own practice, if nothing else, should repeat to themselves “most malpractice and disciplinary actions result from a lack of follow-up and follow-through” 108 times daily, like a religious mantra, until the importance of process sinks in. (I’ve previously written my thoughts on marketing for young lawyers, and how litigators can improve their skills.)

Carloyn Elefant recently ignited another debate over solo practice with an anonymous guest post by a lawyer describing how his experiment in solo practice failed. Scott Greenfield challenges the author’s mistaken “expectation that he would not only be able to create a viable practice out of nothing, but that it would allow him work/life balance.” Sam Glover similarly notes that there is no free time in the first few years of a solo practice, there is merely more time for marketing and networking.

There was, in my opinion, another fundamental problem with the anonymous poster’s experiment. His business model misunderstood the nature of contingent fee litigation:

I planned to practice criminal defense, immigration, civil rights (police and corrections misconduct), and consumer law (debt defense and FDCPA).  My essential plan was to finance contingency civil rights work with revenue from flat-fee criminal, immigration, and consumer work and contingency FDCPA work.  

(Emphasis mine.)  Before I practiced contingent fee litigation, and perhaps in the first few years, I would have thought this contingency-and-fixed business model for a solo or small firm made sense. It looks like a good way to hedge bets: on the one hand the solo would have the regular income from the hourly and flat fee work, and on the other hand, have the irregular but potentially more lucrative income from the contingency fee work. I still hear lawyers talking about setting up their practice this way, mixing everything from family law to small business with personal injury or civil rights work.

Adding to the apparent sense of this business plan, there’s a handful of prominent lawyers in every city thriving on this model, usually (for reasons that will have to wait for another post) by mixing criminal defense along with catastrophic injury and wrongful death. Don’t be fooled. These success stories are the exception, not the rule, and they succeed because they have two things most solos likely don’t: a large referral network and big war chest. Their business model, however, does not scale down to the average solo practitioner’s size. Let’s review a little math to see why not.

Continue Reading The Black Swan Solo Practice Business Model That Will Bankrupt You

Few insults draw the ire of personal injury lawyers like “ambulance chaser.” Unlike “trial lawyer,” which business interests have been trying to turn into a slur for years — despite the fact that the term means little to non-lawyers and, among lawyers, can be a compliment for both plaintiff’s and defendant’s counsel — “ambulance chaser” is unambiguously derogatory, implying a mixture of greed, desperation, and exploitation.

The term is doubly insulting because it strikes at the part of our work that is the most emotionally challenging and is the source of our greatest pride: the fact that we are trying to help injured people. In the last week I spoke with a woman who cannot work or even stand anymore because of the pain from titanium clips left inside her by an incompetent physician, and I prepared discovery in a case so tragic that, in every conversation — whether with a doctor, an expert, or even the defense lawyers — there will be a moment of stunned silence in which empathy instinctively forces us to consider that, every day, we do the same thing that family did, and that we have been spared their fate by sheer luck. Mention the word “ambulance,” and I will think of how, inside many ambulances, there is a very hurt person with a sad story that could or should have been prevented, a person that may end up in my office and on my mind every day for years to come. Like it’s my fault that Ethicon makes defective hernia mesh and Bayer’s Essure is a disaster?

Yet, as an amateur etymologist, the term bothers me for another reason: there’s no clear definition. Ask Wikipedia, and it equates “ambulance chasing” with barratry (“barratry can refer to a lawyer seeking clients at a disaster site, which is also known as ambulance chasing”), but there are two problems with that. First, barratry is a notoriously difficult term to define — just ask the Supreme Court, which has been trying for nearly two centuries to define it in the maritime context, see Patapsco Ins. Co. v. Coulter, 28 U.S. 222 (1830)(“It cannot be denied, that what with adjudged cases and elementary opinions, this doctrine has got into a great deal of confusion.”) — and, second, the legal usage of “barratry” usually refers to stirring up groundless litigation.

It certainly would be wrong for a lawyer to chase an ambulance, peddle their services, and then convince the injured person to file a baseless suit, but is that really what is meant by the term “ambulance chaser?” Or does it also refer to lawyers who improperly solicit clients with meritorious cases? 
Continue Reading The Lawyer As Ambulance Chaser

The legal blogosphere spent a good deal of time discussing Horace F. Hunter last October, when the Virginia State Bar sanctioned him for the terrible ethical violation of truthfully describing his own successes — which were all a matter of public record — on his blog. Said the Washington Post:

Bar authorities contend the blog constitutes advertisement and should include a disclaimer saying it’s an ad. Hunter argues the blog is news and commentary, and the bar’s attempt to get him to tack on a disclaimer is a violation of his First Amendment rights.

At least that’s what all of us, including Carolyn Elefant, thought it was about, but when it came time for the actual hearing the bar apparently shifted (according to Horace Hunter) its focus from the lack of a disclaimer to the failure to obtain client consent before re-publicizing the matters that were already on public records. Hunter lost, then appealed, and according to Bob Ambrogi just won his appeal on the client consent issue but lost it on the disclaimer. So we’re back where we started: a strict application of the disclaimer rule. If a lawyer in Virginia mentions one of their cases, they need to follow the rule to the letter.

I’m not a fan of the disclaimers, and I don’t think Hunter should have been sanctioned. As I wrote in the comments on Carolyn’s site back in October: 
Continue Reading Horace Hunter And The Sham Lawyer Advertising Disclaimer

A year ago, I posted the Young Lawyer’s Guide To Legal Marketing. My thoughts haven’t changed, i.e., find a mentor and then “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.” And be generous with your time.

Within that post I quoted another article with ten lawyer marketing tips for young attorneys, which began with “#1 – Excel at the Basics.” Let’s elaborate on how young litigators improve their “basics.”

1. What Not To Work On: Outwitting Witnesses At Trial

I hate to break it to you, but you were sold a bill of goods. You will not spend every day on trial. Depending on your firm, there’s a good chance you won’t spend any time actually questioning witnesses. Some associates do indeed spend a fair amount of time in court, and some even conduct full trials, but trust me on this point: you will not have a single Perry Mason moment in which you win a big case by outwitting a formidable witness.

Don’t worry about it. You know what real trial lawyers talk about at seminars and conferences and the like? How they learned to stop playing tricks and start working on their persuasive methods, like by developing case themes with their evidence and by building credibility with the jury.

Last year one of the biggest verdicts in the country was a $1.5 billion jury award in Maryland, two-thirds of it in punitive damages, against Exxon over a groundwater leak of gasoline that contaminated over 200 wells with methyl tertiary butyl ether (MTBE). Do you think that, after deft questioning by plaintiff’s counsel, an officer for Exxon admitted they lied to local government authorities about the protective measures the company took? Of course not. Every last part of the case had to be proven, piece by piece, to the jury. How?

2. “Turn Every Goddamn Page”

There’s some great journalism and historical writing out there — one of the parents of two kids that go to the same pre-school as mine just won a Pulitzer doing some fantastic work — but there’s only one Robert Caro. There’s only one biographer who, thirty years after the fact, can uncover proof that LBJ’s election to the Senate in 1948 was stolen. He has a new LBJ book coming out (ten years after his last one; for all his virtues, he is not a model of dispatch), and the New York Times explored his method:

For the Johnson books, he has conducted thousands of interviews, many with Johnson’s friends and contemporaries. (Lady Bird spoke to him several times and then abruptly stopped without giving a reason, and Bill Moyers, Johnson’s press secretary, has never consented to be interviewed, but most of Johnson’s closest cronies, including John Connally and George Christian, Johnson’s last press secretary, who spoke to Caro practically on his deathbed, have gone on the record.) He has spent literally several years at the Johnson Library, in Austin, Tex., painstakingly going through the red buckram boxes that contain Johnson’s papers, and he has been the first researcher to open some of the most revealing files there. “Over and over again, I’ve found crucial things that nobody knew about,” he said. “There’s always original stuff if you look hard enough.” He added that he tried to keep in mind something that his managing editor at Newsday, Alan Hathway, a crusty old newspaper­man once told him, after pointing out that Caro was the only Ivy Leaguer who ever amounted to anything: “Turn every goddamn page.”

“Turn every goddamn page” produces great journalism and historical works, and it wins cases. It is now your motto. Cases on TV are won through brilliant, impromptu cross-examinations at trial. Real cases are won through dogged investigation and by relentlessly investigating until you have both found and turned every goddamn page.

How do you do that? 
Continue Reading How To Excel At The Basics As A Young Litigator

Yesterday, a pizza. A few weeks ago, a bouquet of flowers. A few months ago, a pound of yerba mate with a calabash gourd and a bombilla. And a bunch of thank you notes.

As a lawyer, I like to think that my work solves people’s problems or at least makes things a little better, but the pizza, bouquet, and yerba mate were all gifts I received from people whose problems I did not solve.

There’s a nice take-out-only pizza and hoagies around here, and one day a few months ago the owner asked me, you’re a lawyer, right? I am. Can I call you tomorrow? Sure.

The owner of the pizza place had some landlord–tenant issue arising from a prior place he leased. I told him it wasn’t my field, that I didn’t have any documents in front of me, that I couldn’t advise him specifically on his situation, but I could give him some general background on landlord-tenant law, I could explain how a landlord–tenant lawsuit is filed, served, and heard in small claims court, and I could refer him to someone I knew who was both competent and cost-efficient.

That was it. The whole process took about 30 minutes.

Since then, he’s offered me extra food every time I’ve stopped by. No charge. Take a drink. I put some extra fries in there. He was offended the first couple times I tried to politely decline, so now I just say thank you.

The bouquet? I told them they were likely going to lose the case, but nonetheless referred them to someone who might be able to help.

The person who sent me the yerba mate never even ended up calling the lawyer to whom I referred them.

I’ve written before about how I don’t charge a consultation fee because the fee would do me more harm than good. But there’s more to it as well: being a decent human being is also good marketing. I’ve heard that Jim Beasley, Sr., used to say “do the right thing and the money will take care of itself.”Continue Reading The Benefits Of Being Generous With Your Time

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. 
Continue Reading Chamber of Commerce Swings And Misses At Plaintiffs’ Lawyer Advertising