As I read the Institute for Legal Reform's just-released report
on "digital marketing efforts of plaintiffs' attorneys and
litigation firms," I was left with a disquieting image. I
pictured a devastated husband and wife returning home from a
doctor's office with the awful news that one of them has
mesothelioma, the fatal asbestos-linked cancer. They sit down at
the computer, type "mesothelioma" into Google's search engine,
and instead of finding dispassionate medical advice or a support
group for fellow sufferers, end up with a list of sites that
are, directly or indirectly, contingency-fee firms looking to
file a personal injury suit on their behalf.
That's precisely the picture the ILR, an arm of the U.S.
Chamber of Commerce, wants to evoke. The report asserts that
plaintiffs' lawyers are spending upward of $53 million a year to
secure keywords that will lead unsuspecting Google searchers to
their websites. The report, prepared by New Media Strategies,
examined cost-per-click search data from Google AdWords on 125
keywords the ILR "identified as of interest to trial lawyers."
(The keywords included mesothelioma, asbestos, several drug
brand names, and phrases like "corrupt practices" and
"whistleblower laws.") Based on a 45-day study of how much
plaintiffs' firms appeared to be paying to secure prominent
places in search results, ILR's study extrapolated estimates of
annual spending.
Its findings? Plaintiffs' lawyers are paying almost three
times more for keyword advertising than the Obama campaign spent
in 2008, and more than twice as much as Apple spends on keyword
ads for iPhones and iPads. And that $52.6 million is only what
the trial bar supposedly spends on Google keyword advertising,
so it doesn't even include increasingly sophisticated
client-magnet techniques plaintiffs' lawyers are said to be
using on Twitter and Facebook. The ILR study identified seven
tort firms that it said spent more than $1 million a year on
Google keyword ads, led by Danziger & De Llano ($16.6 million),
Sokolove Law ($6.3 million), and the Lanier Law Firm ($5
million).
ILR's president, Lisa Rickard, said in a press release that
the report reveals trial lawyers' client-trawling tactics. "This
new research shows how the practice of law in the United States
has gone from a noble calling to often times a large commercial
enterprise, with marketing that rivals the largest industries in
our society," Rickard said. "While there is certainly nothing
wrong with marketing your services, those services should be
clear from the start. Sadly, some of the marketing tactics
employed by some in the plaintiffs' bar should cause the public
to question: Is this 'client at any cost'-model what we want our
legal system to look like?"
Now for the reality checking. I reached out to the three
firms the report identified as the biggest spenders on Google
keyword ads. Danziger & De Llano and Sokolove Lawdidn't respond
to my phone messages. But Mark Lanier sent me a series of emails
about the ILR's assertion that his firm spends $5 million a
year. "We do not pay one penny for online advertising," he said.
"I find this flabbergasting." (An ILR spokesman said that New
Media Strategies relied on data from Google's AdWords in
compiling the report's findings.)
Lawyers at two qui tam firms cited in the ILR report's
discussion of online advertising designed to "capitalize on new
whistleblower laws" also said the report's estimates of their
spending seemed high. More fundamentally, though, Jamie Bennett
of Ashcraft & Gerel (listed as spending about $163,000 on Google
keyword ads) and John Phillips of Phillips & Cohen (reportedly
spending $200,000) said there's nothing wrong with assuring that
potential whistleblowers find lawyers who can help them expose
fraud. "Anything you can do to raise visibility of fraud in
public is good," said Bennett. "We should be spending three
times as much on advertising to bring fraud to public light."
Phillips noted that when people type "false claims" or
"whistleblower" into a search engine, they're probably already
pretty sophisticated. And if Googlers click on keyword ads that
lead them to his firm's website, he said, they'll get a lot of
information about the ups and downs of being a whistleblower (as
well as information about the firm's admirable record in qui tam
cases). "We're not trolling for cases. We don't want inquiries
that aren't well-founded," Phillips said. "There aren't nuisance
settlements in these cases." And though he said the firm has
increased its advertising budget since Congress enacted the
Dodd-Frank Securities and Exchange Commission and Internal
Revenue Service whistleblower programs, the intention is to
improve Phillips & Cohen's market share, not to gin up meritless
cases.
I do agree with the ILR that plaintiffs firms shouldn't
masquerade on the Internet as advocacy groups or support
networks, but Phillips and Bennett 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?
In fact, to put the $52.6 million that trial lawyers are
reportedly spending on keyword advertising in context, someone
should really study what drug companies, for instance, spend on
keyword ads for the diseases their products treat. Or what banks
used to spend to attract subprime mortgage applicants. I'm
pretty sure we'd find out that plaintiffs' lawyers aren't the
only ones out there innovating ways to improve their business
models through Internet ads.
(Reporting by Alison Frankel)
Follow Alison on Twitter: @AlisonFrankel
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