We’re all familiar with the annoying internet and late-night television ads.
Opportunistic lawyers, aiming to persuade vulnerable viewers that they’ve been harmed by some allegedly dangerous product or service, urge them to contact sponsoring law firms to see if they qualify for compensation.
As annoying as those ads might be, however there’s an even deeper problem: Even where individual viewers have actually suffered the relevant harm, the attorneys running those ads are the ones more likely to cash in.
Fueled by massive advertising campaigns, often bankrolled by hedge funds or other outside investors, ensuing lawsuits can result in billion-dollar settlements, plaintiff lawyers and their financial backers frequently take up to 40 percent of the payoff, handing down fractional payments to individual claimants.
Mass tort legal advertising has surged, with spending tripling and ad volume quintupling since 2005. For example, the self-proclaimed largest personal injury firm of Morgan & Morgan spent $40.3 million on digital ads in 2023, a 47 percent increase from 2022. A 2022 report found that, over five years, lawyers had spent almost $7 billion on more than 77 million ads. In 2021, $1.4 billion was spent on broadcast and cable television ads to attract potential civil tort claimants.
Why? The more claimants that the advertising plaintiff attorneys can attract with cleverly written ads, which often resemble official statements or public health alerts, the better their chances of coercing targeted companies into settling out of court.
For the targeted companies, defending against mass tort claims is often so expensive and time-consuming that defendants with strong cases settle anyway. Indeed, the bad publicity that comes with merely being charged with injuring consumers can be so damaging that companies decide mounting a defense is not worth it, never mind the significant financial loss that could result from a jury’s decision in favor of even a single individual claim.
Aggravating matters, attorneys running the ads often aren’t concerned about the legitimacy of individual cases — they know that more claimants make it more complicated for defendants, judges and juries to handle the suits.
Among other concerns, that rise in attorney advertising fuels social inflation and litigation risk, affecting company reputations, stock prices and consumer costs. Cumulatively, each American household shoulders $5,215 annually in that “tort tax.”
In some cases, these misleading ads can be dangerous to consumers.
For example, physicians report on patients who stop taking beneficial medications without seeking professional medical advice simply because of what they’ve seen in fearmongering advertisements. As a consequence, serious health problems and even deaths have occurred.
On a brighter note, growing recognition of the dangers posed by lawyer advertising has highlighted the need for common-sense ways to address the danger. Public opinion surveys show that voters support corrective efforts, with one study finding that 71 percent of likely voters surveyed favored legal advertising reforms.
In that vein, some states have passed legislation prohibiting ads from using misleading terms like “health alert” or featuring government logos to give the mistaken impression that the message has agency approval.
Efforts constitute progress, but far more work remains to address this growing public policy concern. Nationwide standards may help ensure that lawyer ads become more transparent and truthful and no longer put public health at risk.
Whatever the optimal solutions within the bounds of First Amendment protections, it’s time leaders at all levels give this growing problem the focus it deserves.