04 November 2012
All My Verdicts: All My Sorrows, Soon Forgotten
The ethical rules for lawyers bar advertising verdicts or the results of specific cases.
The rationale is that such advertising creates unrealistic expectations in potential clients and amounts to comparing one’s services favorably with those of other providers.
My own 35 year record of advertising is quite anemic. I’ve done some Yellow Pages, but I quit that a few years ago. I do “sponsorship” ads here and there, the sort which support or congratulate schools, the Boy Scouts and so forth.
I like to do radio on election day. I have to wonder if my ranting about voter apathy pisses more people off than creates positive impressions. Not that it matters – voter apathy pisses ME off.
We’ve never gotten into tchotchke. We don’t do pens, calendars, refrigerator magnets and crap like that. It’s just entirely too tacky.
Oh, I do give out flag American flag lapel pins, but those are not festooned with the law firm name. I just like to spread those around.
But as a zealot of a vigorous First Amendment and a vibrant Marketplace of Ideas, I’ve always questioned limitations on truthful attorney advertising. Mind you, there’s no question that a lot of it is often so idiotic that it’s counterproductive. I recall one classic some guy ran a few years ago: “Don’t take a knife to a gunfight.” That’s good literal advice, but the metaphor just doesn’t go anywhere.
I have a buddy who spent 2 bushels of cash developing a cartoon tiger for television ads. His tagline was “Put the Tiger on your team,” or something like that. The bar authorities got on his case because that seemed to compare his services to other lawyers, so he changed the tagline to “We’ll fight like a tiger for you.”
I hope that no potential client ever believe that my buddy was going to morph literally into a tiger, drag the opposition into the jungle and devour them. Anyway, with the language tweak, he kept the tiger.
Recently, the State Bar reminded everyone in its weekly mass e-mail about the prohibition against publicizing verdicts. And again, I had to wonder, if a lawyer tells the truth, what’s the harm?
Then, in connection with a case, I was getting some background information on a lawyer I don’t know. This attorney’s website had a whole list of verdicts in case results.
I became a believer in the bar really quickly. You see, you can’t tell the whole truth about a case in a one paragraph synopsis. And you certainly can’t tell the truth about what you did. Cases are way too complicated and the nuances of good lawyering are way too subtle.
This guy reported some apparently good results:
State versus A: charged with murder. Verdict – not guilty.
That sounds pretty good. I have to wonder about the facts of the case because that much information doesn’t tell me a hell of a lot. Did the police charge the wrong person? Was there an affirmative defense that had to go to trial? Did the prosecutor goof? What skill did this lawyer bring to the case?
State versus B: charged with DUI. The breathalyzer gets thrown out by the court and the state surrenders. Okay, the client is happy. Was the breathalyzer untrustworthy? We don’t know. Why was it thrown out? Again, did good lawyering have anything to do with it?
State versus C: “We got the charges reduced.” To what the defendant did? Did the defendant still have a good defense that wasn’t tested? What did the lawyer do?
There were lots more. There was talk of charges reduced and big-money verdicts.
And that’s what lawyers are supposed to do. We’re supposed to represent people’s best interests and tell their story when nobody else is telling their story. And sometimes we tell it real well but their story is so bad that we get a bad result. And sometimes, we tell it ineptly but the case really is a winner from day one despite our lack of skill.
As it turns out, publicizing the result of the case doesn’t say a whole lot about what level of skill the attorney used. Some of the best lawyering is done in complete darkness.
Case in point: I was talking to a friend who is a really, really top-notch trial lawyer last week. He was telling me about a case he settled. When he told me the facts, I thought it was worth a certain amount. Then he told me why he was able to settle it for about three times that amount. And he would be out of his mind to publicize that case because that would reduce his effectiveness in the next case. I know about it it is a teaching point. Nobody else needs to know about it.
The practice of law is not a public, newsworthy activity. It’s not something we should be doing on the front page.
There are lots of metaphors and images used in advertising. There’s my buddy the tiger. In every television market, some lawyer has claimed the moniker, “The Hammer”: “I am the Hammer and they are the nails!” [“I am a vain asshole, and this is my commercial!”] There even those who have a “NT GUILTY” vanity plate à la The Lincoln Lawyer. Matthew McConaughey he could pull it off. The average lawyer can’t.
I suppose I’ve had my share of good results, and I can make a nice mental list. But I’ll be damned if I’m going to talk about them. My effectiveness, to the extent I’m ever effective, comes from getting things done, quietly, not from bragging about it.
If you will find some character metaphor for me, don’t go looking for Tigers or Hammers. I prefer something like “The Shadow.”
Remember from the old radio drama: “Who knows what evil lurks in the hearts of men? The Shadow knows.”
I’m okay with that.
A minor contest: Can anyone tell me the source of the second phrase in the title of this post? Without using Google? The first one who can gets a book of my choosing from the Endless Bookshelf.®