May 17th, 2010

Legal Advertising – Reaching For The Toilet (Or At Least the Urinal)

Advertising over a urinal has one thing going for it: A captive audience.

But is that really the association that you want for your law firm?

From Myrtle Beach, South Carolina, the Joye Law Firm apparently doesn’t have a problem with it, as you can see by these two pictures.

I thought this part of their website ad copy, where you can choke on all the SEO going on, was interesting:

When you come to the South Carolina personal injury lawyers at Joye Law Firm after a serious injury or accident, expect to be treated with the utmost respect, compassion, consideration, and care.

So how do you respect someone that advertises professional services over a urninal? Scott Greenfield at Simple Justice likes to write about much of legal advertising being a race to the bottom. Which means that, to beat this ad, someone will have to advertise inside the stall.

Talk about timing. It was just last week that I quoted federal judge Frederick Scullen when he wrote:

Without question there has been a proliferation of tasteless, and at times obnoxious, methods of attorney advertising in recent years. New technology and an increase in the types of media available for advertising have exacerbated this problem and made it more ubiquitous. As a result, among other things, the public perception of the legal profession has been greatly diminished.

OK, so this isn’t new technology run amok; just good old-fashioned tastelessness. Perhaps the Joye Law Firm was hoping, while men held onto themselves, for a play on the firm’s name?

Photos courtesy of my spy who wishes to remain nameless.

May 13th, 2010

Radius of Influence: Talk Today in Tampa

I spoke to today in Tampa at the Radius of Influence conference on attorney marketing. But since I made the presentation without PowerPoint or other visual aids, just an old-fashioned talk with questions and answers, it left participants to rely on equally old-fashioned note taking.

So this post provides the attendees with an outline of my remarks, as derived from some postings over the years. Many of the people were from InjuryBoard, who co-hosted along with the American Association for Justice. InjuryBoard, for those that don’t know, is a group blog of personal injury attorneys that has had a spotty record with respect to creating quality posts, with some using their blogs to discuss local accidents and using the names of the victims.

As many know, I’ve been sharply critical of conduct that I view as electronic solicitation.

So this was the premise of the talk: Most attorney advertising sucks. But don’t take my word for it, as this is what federal judge Frederick Scullin, Jr. said about it in Alexander v. Cahill (the suit over the constitutionality of New York’s attorney advertising rules):

Without question there has been a proliferation of tasteless, and at times obnoxious, methods of attorney advertising in recent years. New technology and an increase in the types of media available for advertising have exacerbated this problem and made it more ubiquitous. As a result, among other things, the public perception of the legal profession has been greatly diminished.

I see this same attitude when I go to pick juries, with jurors rolling their eyes, often at the mere mention that they may be sitting on a personal injury case. There is no question about it; the small number of lawyers that engage in the tasteless and obnoxious advertising hurts all claimants that set foot in the courthouse, and attorneys in general.

My objective was to change some minds and urge people to stick to quality so that the profession does not get downgraded further, and so that claimants aren’t further hurt by the juror cynicism that their conduct breeds. In the process, the reputation of the attorneys may be enhanced and they may find themselves building relationships with others who value their opinions.

Perhaps they can write about tort “reform,” pending legislation, decisions of interest and other subjects in an interesting and fun way. Instead of racing to the bottom in marketing, perhaps they can build a reputation by writing well on subjects that they already know a lot about. And engage the rest of the legal blogosphere in the process so that they do not remain an island unto themselves.

Along those lines, the following posts were used as the framework for my 50 minutes at the mike:

Better Blogging – 12 Tips (11/18/07)

Attorney Solicitation 2.0 — Is It Ethical? (12/7/07)

This Blog for Sale (April Fool’s Day, 2009)

I Hate My Website (5/26/09)

And my all time favorite blog posting on this subject, from Austin criminal defense attorney Jamie Spencer: If you too have driven your car into a pool…

And remember, you are being watched by your friends and your neighbors. And your jurors. You can’t build a reputation, and earn respect from others, if you are wallowing in the gutter.

May 11th, 2010

Is Elena Kagan’s “Husband” Important?

If you are reading this then you know SCOTUS nominee Elena Kagan isn’t married. But most of America doesn’t read law blogs and can’t name any members of the Supreme Court. So an annoucement gets made, and what do people go looking for?

Thanks to Google and its auto-fill feature, we know. Type in Elena Kagan and see the potential fill-ins that provided by Google Trends. You can see my screenshot here, and it’s pretty clear thar personal details are important to Americans:

What does that mean for confirmation? I don’t know, though it seems that many in America have an interest in her marital status and personal life.

I know that her marital status isn’t something that I care about. I’d like to see a variety of personal experience on the court in general, but that goes to a variety of legal experience. I’d like to see some with judicial experience, some with academic and some with real-world experience representing individuals.

Many in America, it seems, have different curiosities about the nominee. And this type of interest may be a harbinger of things to come, not just from the usual homophobic nutjobs. While I couldn’t imagine any Senator having the nerve (or stupidity) to ask such personal questions during an actual hearing, this level of interest indicates to me that personal issues will percolate for some time.

And why is this? Because personal issues are a whole lot easier for Joe Sixpack to discuss than judicial philosophies and stare decisis. That’s just the way it is.

Update: I just noticed that when I start to type her name, after just the first two letters, that “Elena Kagan Husband” pops up in 6th place. Just above Elvis Presley. Which I know must be significant for something.

May 11th, 2010

Will Staten Island Ferry Crash Test NY Anti-Solicitation Rules?

A year ago I watched, and blogged, as law firms used the web to solicit victims of the crash of Continental Flight 347 in Buffalo, in apparent disregard of New York’s 30-day anti-solicitation rules. With the crash of the Staten Island Ferry this weekend, it appears to be happening again, with lawyer ads popping up on Google when “Staten Island Ferry Crash” is plugged into the search engine.

First, the definition of solicitation, from Rule 7.3 of the New York Rules of Professional Conduct:

For purposes of this Rule, “solicitation” means any advertisement initiated by or on behalf of a lawyer or law firm that is directed to, or targeted at, a specific recipient or group of recipients, or their family members or legal representatives, the primary purpose of which is the retention of the lawyer or law firm, and a significant motive for which is pecuniary gain. It does not include a proposal or other writing prepared and delivered in response to a specific request of a prospective client.

And what is the time frame for the anti-solicitation rule?

No solicitation relating to a specific incident involving potential claims for personal injury or wrongful death shall be disseminated before the 30th day after the date of the incident, unless a filing must be made within 30 days of the incident as a legal prerequisite to the particular claim, in which case no unsolicited communication shall be made before the 15th day after the date of the incident.

So let’s see what do you get when you Google “Staten Island Ferry Crash”: The first name you get in the Google ads is Kreindler & Kreindler, a pretty big firm in this town. This is the pdf of the search terms:Staten Island Ferry Crash. The keywords that they gave to Google for that to come up, of course, are known only the firm and Google. The magic words concerning the accident don’t appear in the ad. But when you add “lawyer” to the end of that search phrase, you see that Kreindler now has “Boat Crash Law Firm” in its ad heading, indicating that the ad was likely created directly for this (though, perhaps, they could have predicted the crash before it happened and had that as a long-standing ad).

You can contrast the Kreinder ad with this: If you add the word attorney to the search box, you find the Siskind Law Firm with this blatant Google ad (pdf:StatenIslandFerryCrashAttorney):

Staten Island Ferry Accident Lawyer
Injured on the Ferry? Call Us Today

Thus, with these two examples, you can see how electronic solicitation has a number of shades of gray. Some stuff may be hidden, and other stuff not. This is not meant as an exhaustive review of all the firms that may be soliciting, but of two contrasting examples of how firms may walk up to the line, go over the line, or leave it unclear as to whether they did or didn’t.

Ironically, it was the Staten Island Ferry crash of 2003 that killed 11 people, with the same boat, that was the impetus for the 30-day anti-solicitation new rule. Even before the carnage had cleared the site on the day of the accident, lawyers had rushed to the Staten Island Advance to place ads in the paper for the next day. It was, to say the least, unseemly.

Now there is one glaring problem with me writing about this subject: How do I write about it without others accusing me of using my blog to do what the others are doing with Google ads?

And yet, this stuff is right in my wheelhouse. The rules were directed toward my part of the bar. If I don’t write about it, when I have a blog of my kind, then who will? The answer, likely, is that no one will, and to me that is unacceptable.

The first time I did an analysis of the rule in the face of an actual accident, as opposed to writing about it in theory, was after the Hudson River splash landing in which physical injuries were few.

My objective here is to pull the curtain back on what conduct that continues despite the rule (though I suspect to a much less degree). Of course, this is only what I see in public, and doesn’t address the fact that some may get letters from lawyers, as had happened after the plane crash.

I’ve been tackling these rules since the time that they were created, so if you want to see my prior thoughts on it, even before last year’s plane crash in Buffalo, you can read many of the links I have at the end of this post: Do Attorney Anti-Solicitation Rules Work? (A Brief Analysis of Three Disasters). The “Attorney Ethics” tab will take you to many of those, and many more.

And in the ever-shifting world of gray when it comes to marketing and solicitation, what would happen to the “blog” that reports the accident and gives no commentary or analysis? And has “call me” call to action at the bottom? Or just a smidgen of commentary or analysis with the call to action at the bottom? The answer, of course, is that nobody knows since we are on ground that has never been plowed before.

May 10th, 2010

Elena Kagan: The Three-Year Hole in the Resume

OK, so Solicitor General, and former Harvard Dean, Elena Kagan has now been nominated to fill the seat of Justice John Paul Stevens.

But while others go looking for her judicial philosophy and look into crystal balls to see how she will rule in the future on their pet issues, I want to know what kind of people she has actually represented.

There are three basic niches for a lawyer to be in:

1. Public service;

2. Acadmia; and

3. Private practice.

So I checked out Tom Goldstein’s 9750 Words on Elena Kagan (more than you ever wanted to know) that is up at ScotusBlog. And I went looking for the private practice area, wanting to know if she had ever represented some individual, somewhere, in some kind of distress. I had the same interest in Sonia Sotomayor when I went looking into “Sotomayor & Asscociates” (and found no associates). Did Kagan appear in the trenches, battling for the little guy against powerful interests?

And here is what I found from Goldstein’s 9750 Words on Elena Kagan:

Upon completing her clerkship, in 1988, Kagan went to work as an associate at Williams & Connolly in Washington, D.C.

That was it, out of 9750 words. From there she went in 1991 to the law faculty of the University of Chicago. A three-year stint at BigLaw seems to be the sum total of her private practice. While I don’t hold out much hope she did anything other than represent corporate interests, there is the slim hope that she helped an individual. Maybe a pro bono representation of some kind?

Does anyone know anything about this three-year empty hole in the resume where she worked for BigLaw? Who did she represent? Why did she choose to go that route? Why did she find it more desirable to go elsewhere? Did she ever sit at her desk with a box of tissues for a client? Any client?

Will any of those questions get asked at the confirmation hearings? Unlikely. We will probably see lots of questions about the usual political issues; questions which she won’t answer, of course.

Update: Her father was a lawyer that worked for tenants. He died in 1994, while Elena was 34. I’d like to know if she did any work at her father’s firm, and perhaps saw some of the sad faces that came through the door. At least that would be something, as we get ready for a Supreme Court where 100% went to Harvard and Yale, and few seem to have done actual legal work for people in need.

Update #2: Max Kennerly has a round-up of the prior legal experiences of the Supreme Court justices that shows a real dearth of private experience representing individuals. Kennerly draws a different conclusion than I do about the significance of it, but it’s worth noting that the current level of trench-lawyer experience representing individuals against major interests might actually be zero.

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Elsewhere, previously:

Birth of the Trench Lawyer Movement (Greenfield, 5/3/09)

…In the trenches, we experience life, along with the huddled masses who care far less about whether a judge is a constructionist or originalist or texturalist. We know the consequences of decisions, together with the consequences of delayed decisions. Our view is ground level, and our understanding of how badly the law can hurt comes from holding the hands of the maimed. We know that people lie, cheat and steal, but we know that isn’t limited to the defendants. We have philosophies, but we live realities…

Why We Need A Trial Lawyer on the Supreme Court (Pattis, 5/2/09)

…A trial lawyer knows about raw human need and the law’s rough edges. It is a trial lawyer’s job to find the intersection of terror, fear and tears with the high doctrine and principle of the law. Not one member of the current court has ever sat with a client and his family during jury deliberations to discuss what will become of a family should the client be sent to prison. Not one of these legal scholars have ever told a person that the law’s reach will not embrace the harm they have endured. I cannot fathom Scalia counseling a client about sovereign immuity….