Under the Influence with Terry O'Reilly - S8E12 - Objection Overruled: Law Firm Advertising

Episode Date: March 21, 2019

This week, we explore the world of law firm advertising. Some of it good, some of it bad, but a handful of it highly creative. We’ll break down the lawyer advertising laws that get some firms in trouble, we’ll look at the controversial billboard that got one lawyer death threats and the YouTube campaign that went viral - earning a divorce firm over 90M impressions.  Hosted on Acast. See acast.com/privacy for more information.

Hi, it's Terry O'Reilly. As you may know, we've been producing a lot of bonus episodes while under the influences on hiatus. They're called the Beatleology Interviews, where I talk to people who knew the Beatles, work with them, love them, and the authors who write about them. Well, the Beatleology Interviews have become a hit, so we are spinning it out to be a standalone podcast series. You've already heard conversations with people like actors Mark Hamill, Malcolm McDowell, and Beatles confidant Astrid Kershaw. But coming up, I talk to May Pang, who dated John Lennon in the mid-70s. I talk to double fantasy guitarist Earl Slick, Apple Records creative director John Kosh. I'll be talking to Jan Hayworth,

who designed the Sgt. Pepper album cover. Very cool. And I'll talk to singer Dion, who is one of only five people still alive who were on the Sgt. Pepper cover. And two of those people were Beatles. The stories they tell are amazing. So thank you for making this series such a success. And please, do me a favor, follow the Beatleology interviews on your podcast app. You don't even have to be a huge Beatles fan, you just have to love storytelling.

Subscribe now, and don't miss a single beat. From the Under the Influence digital box set, this episode is from Season 8, 2019. You're so king in it. Your teeth look whiter than noon, noon, noon. You're under the influence with Terry O'Reilly. When I watch the evening news, I'm always surprised to see courtroom sketch artists still working in the 21st century.

In an era where digital technology has made so many old-school mediums archaic, the simple courtroom sketch artist continues to thrive. The concept of the modern courtroom sketch artist was born in 1935. The court case of the kidnapping and killing of aviator Charles Lindbergh's infant son created a media circus. The public had an insatiable demand for coverage of the trial. Noisy camera shutters, awkward tripods, the whir of newsreel cameras, and a constant barrage of flashbulbs overtook the court proceedings. In response, the American Bar Association banned all cameras from courtrooms. But the public and the media

still insisted on seeing what went on during famous court cases. So, illustrators were employed to sit in the courtrooms and sketch the proceedings. The life of a courtroom sketch artist is interesting and challenging. To begin with, they are usually looking at the backs of the lawyers and defendants all day long. There's not much physical action in a courtroom, so they have to search for minute facial expressions and telling body language. They have to discreetly manage their sketchbooks and colored markers in a crowded courtroom. And they have to sketch quietly.

A photograph captures a moment, but a courtroom sketch artist captures the emotional essence of a trial. It's an impressionistic art. And there have been some very famous sketches of dramatic court cases over the years. Like the sketch of Charles Manson leaping over the table to attack the judge at his trial, with the bailiff tackling him in mid-air. Or Lindsay Lohan being led away in cuffs in her red Louboutin shoes. Or Jack Ruby swallowing hard,

listening to the verdict for killing Lee Harvey Oswald. It is rumored that Martha Stewart even courted sketch artists ahead of her 2004 trial, wanting to ensure the best renderings possible. By the way, sketch artists are often approached by lawyers asking to make their sketches more flattering. Men will ask for more hair or to render them thinner or better looking.

As one sketch artist says, it's always the men, never the women. Courtroom sketch artists have always wondered when their time will be up. Cameras were allowed in more and more courtrooms and was usually up to the discretion of the judge. But the trial of the century changed all that. It makes no sense. It makes no sense. It doesn't fit. If it doesn't fit, you must

acquit. When Judge Lance Ito agreed to let a camera into the O.J. Simpson trial, courtroom sketch artists everywhere thought that was the end of their profession. But an interesting thing happened. The presence of the camera affected the proceedings.

Witnesses underwent complete beauty makeovers between preliminary hearings and the actual trial. Lawyers started positioning their lecterns for the best camera angles. And judges everywhere feared being judged by the outside world. After that experience, courtrooms became incredibly wary of the OJ factor and cameras were,

for the most part, kept out of the proceedings. Courtroom sketch artists are still working today. They draw their images by hand, then use a little 21st century

smartphone technology to take a photo of their sketch and send it off to the TV network. And lawyers still ask to be rendered a little better looking so they can project the best possible image. In the world of marketing,

lawyers still look to project the best possible image. But that is a recent phenomenon, as lawyers were forbidden to advertise since the early 1900s. Today, the times have changed. Lawyers are now allowed to advertise their services online, on billboards, and in television commercials. Which means they not only battle it out in the nation's courtrooms, they now battle it out in the nation's living rooms. Some of the advertising is thought-provoking, some of it is very creative,

and some of it is very sketchy. You're under the influence. Way, way, way back in Roman times, there was an emperor named Claudius. He had a particular interest in the law. He presided over many public trials himself, issuing as many as 20 verdicts a day. Up until that time, you could have a friend argue your case in court, but that friend could not take a fee. Claudius changed all that. He allowed advocates to be paid for their legal services. In other words, Claudius legalized the legal profession.

That was around the year A.D. 50. When you realize the law profession dates back that far in history, it's surprising law firms were not allowed to advertise until very recently. Law associations in Canada and the United States forbid law firms from advertising since the early 1900s. They believed advertising would erode a client's trust in the lawyer by exposing an economic motivation for representation, and that hawking one's wares would tarnish a lawyer's image. In other words, law was a profession, not a trade. But a Bates v. State Bar of Arizona court case in 1977 would change all that.

That year, lawyer John Bates and his partner Van Osteen, both only two years out of law school, opened a legal practice in Phoenix and made a bold choice. They decided to advertise their price list. They wanted to provide legal services for modest fees to people of modest means. The headline asked, Do you need a lawyer? Then the ad went on to list the firm's fees. Divorce or legal separation, $175.

Bankruptcy, $250. Change of name, $95, and so on. At the bottom of the ad was the Bates and Osteen phone number. That advertising attracted a lot of clients. It also attracted the attention of the Law Association of Arizona and got them disbarred. So Bates and Osteen lawyered up

and took the case to court, the Supreme Court to be exact. There, they won their case, as the court rule preventing lawyers from advertising violated the free speech guarantee of the First Amendment. Furthermore, the court stated commercial freedom of speech serves society's interest in that it informs the public of the availability, nature, and prices of products and services. To inhibit that information was to keep the public in the dark. A similar court challenge led the Law Society of Upper Canada to change its rules in 1987.

And there it was. The law profession was no longer above advertising. Since 1977, things have changed drastically. Law firms not only advertise, they have in-house marketing departments. There are now advertising agencies that specialize in the law firm category. The legal industry in Canada and the United States will spend north of $1 billion advertising this year. As legal advertising evolved, it seemed to divide itself along specialty lines.

Big, national law firms that do work for corporations mostly contain their advertising to legal journals and tasteful websites. But smaller firms specializing in personal injury and divorce cater to the general public. The margins can be smaller, volume is the key, and the competition is fierce. Take the slip-and-fall category. Most of the legal services advertising you see on billboards and late-night television is for personal injury law firms. It is by far the most aggressive law advertising category, especially in the U.S.

Some firms go for shock value, like Jim the Hammer Shapiro used to do in Rochester, New York. I cannot rip out the hearts of those who hurt you. I cannot hand you their severed heads. But I can hunt them down and settle the score. I'll squeeze them for every dime I can. Every single dime. I'm Jim the Hammer Shapiro. But I cannot proceed until you call. Shapiro got hundreds of thousands of views on YouTube.

His slogan was, I'm an SOB, but I'm your SOB. Shapiro's aggressive advertising led New York State to impose limits on attorney advertising. Among those changes was a rule prohibiting lawyer nicknames, like The Hammer. Some law firms use fear as a marketing tool, like in this commercial, that begins with an insurance company saying it doesn't care about you. Yeah, I get it. You're the passenger in the car. You're hurt.

I don't care. Then cuts to a lawyer holding a baseball bat. Boy, wouldn't you like to take a baseball bat to that insurance company? They can't do that, but we can fight them. Call me and let the McConnell and Torme team go to bat for you. Many firms opt to use straightforward messaging

about justice. But there are a few who choose to stand out from the clutter of slip-and-fall commercials using creativity. Like New York law firm Trollman, Glaser, and Lichtman. The pain was excruciating. It was like I had this huge, really sharp machete chopping down on me every time I tried to move. Reach my hand into my purse. Machete. Running my fingers through my hair.

Machete. It was the worst paper cut I ever had. They made that paper way too sharp. Someone has to pay. If you've been injured, call us. But keep in mind, you need to really be injured. Instead of airing after 10 p.m., these commercials aired on daytime programs like Good Morning America and The Ellen DeGeneres Show. Trollman, Glaser, and Lichtman also used transit ads that were more serious but had smart headlines. One said,

When you get hit by a car, your whole family feels the impact. that were more serious but had smart headlines. One said, The ads acknowledged this skepticism in slip-and-fall litigation. But they stood out because the law firm chose to use humor in a serious and often cheesy category. And their transit headlines were both smart and thought-provoking. While lawyers are often rated near the bottom of the list for trusted professions, they are often held to higher standards. For example, the Pressler law firm in Toronto ran TV and print ads featuring a distinguished gray-haired spokesperson. As it turns out, the spokesperson was an actor.

On Presler's website, the actor stands front and center surrounded by the firm's actual lawyers. When asked why the firm was suggesting the actor was a lawyer, an executive from Presler said, Many companies use spokespeople. Pressler was no different. It's an interesting argument. It's true. Many companies use spokespersons. And no one seems to question whether the spokesperson in an airline commercial

is really a flight attendant, or if a spokesperson in an insurance commercial is really an insurance agent. Pressler also billed itself as the official personal injury firm of the Toronto Blue Jays. As it turned out, the firm had never provided legal services to the Blue Jays. But it's hard to imagine all the multi-millionaire Blue Jays drive Hondas, the official car of the team, or that the players all use Expedia when they travel, the official travel partner of the Blue Jays.

These are sponsorship deals, based on association and exclusivity. Companies pay for the privilege of being associated with the Blue Jays, and they pay for exclusivity, meaning only Honda gets to say official car of the Blue Jays. But in both of these cases, the Law Society instructed Pressler to add disclaimers. The Law Society of Upper Canada's advertising rules state that law firm advertising cannot be misleading, confusing, or deceptive, nor likely to mislead, confuse or deceive. The rules also say a firm cannot state it as qualitatively superior to other law firms

because this kind of claim is impossible to prove. Yet, in just a few quick Google searches, the Toronto Star found 25 firms claiming to be number one or the best law firm in Ontario. Slaw.ca, Canada's online legal magazine, stated there were 604 complaints about law firm advertising in Ontario between 2011 and 2015,

half of which were initiated by the Upper Canada Law Society itself. But interestingly, not one single lawyer had been disciplined. And we'll be right back after this message. born in Vegas. That's a feeling you can only get with BetMGM. And no matter your team, your favorite player, or your style, there's something every NBA fan will love about BetMGM. Download the app today and discover why BetMGM is your basketball home for the season. Raise your game to the next level this year with BetMGM,

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Of the many stereotypes associated with the profession, few irk lawyers quite like the term ambulance chaser. It suggests personal injury lawyers actively solicit business from those who have just experienced an accident, people who are at their most vulnerable. And sometimes these solicitations appear to cross a line, or shall I say, a fence. Enter hospital geofencing.

Here's how it works. Geofencing is a concept that places a digital fence around a physical area, in this case, a hospital. Companies can pay to increase the presence of their ads to the people within that area, either through Facebook, Google, or geofencing companies. When people enter a geofenced area, their devices, like cell phones or computers, are

instantly tagged using Wi-Fi, cell data, or GPS. Once tagged, a geofence will begin displaying ads on those devices, say for personal injury law firms. So if someone sitting in the ER or waiting room of a hospital Googles the word lawyer on their cell phone, ads for specific lawyers suddenly begin to pop up. It's interesting to note that nearly 80% of people use Google when researching their legal options. And over 30% of traffic to law firm sites comes from cell phones.

But the ads don't stop the minute people exit the hospital. In some cases, TAG devices continue to display the ads to those who have left the geofenced area for an additional 30 days. For obvious reasons, many people aren't so keen on the idea of geofencing hospitals. There are major concerns about the privacy of health care being breached. It also raises the question of where else geofencing can extend, like police stations for criminal lawyers or couples counseling offices for divorce lawyers. It's a crazy new world we live in. Back in 2008, Florida-based divorce lawyer Stephen Miller ran an ad for his unusual firm.

It was called DivorceEasy.com, and it specialized in processing divorces online. For just $249, Miller could file a divorce between a couple without children. $299 for a couple with children. The site even featured a child support calculator. But Miller's ad wasn't your run-of-the-mill lawyer ad. It looked like one, showing Miller standing in front of a library bookcase looking solemn and talking directly to the camera. But here's how it sounded. Hi, I'm Steve Miller. I've been a trial lawyer in Florida and Massachusetts since 1985.

If you and your spouse hate each other like poison and want to get out of the hellhole you call a marriage, you've come to the right place. Look, you can waste your money screwing around with some paper-pusher paralegal type, give thousands of dollars to some piece-of-crap three-piece suit downtown, blow your brains out trying to figure out why you wasted 25 bucks on the crappy forms you bought from the illiterate boob at the courthouse, or do what I say and do it now. Miller's vivid language cut right through the clutter and earned him hundreds of thousands of views online, especially with lines like this. Time to move on. Go to the Get the Divorce page in the upper right corner, pay up, and you're on

your way to getting rid of that vermin you call a spouse. We're here to help. Divorce easy. Because many couples wanted a speedy divorce without having to go to court, Miller's business boomed. That is, until the Florida Bar Association caught wind of it. Under Florida law, claiming to, quote, get rid of the vermin you call a spouse, suggests the guarantee of a favorable outcome and misrepresents the likelihood of success. So Miller made a marketing decision to rebrand divorceeasy.com and change it to divorcedelly.com. He said it was a catchy name that consumers would remember

and the new name would help consumers realize his services wouldn't necessarily make online divorce easy. Divorcedelly offered the same services and even included free biscotti baked fresh by Miller's wife of over 20 years. After all, it was a deli, of sorts. Today, Stephen Miller has rebranded again and can be found at floridadivorceme.com. Slogan?

When it's time to leave, call Steve. In 2007, Chicago divorce attorneys Fetman, Garland, and Associates put up a controversial billboard ad. It featured two sexually charged images, one of a scantily clad woman in black lingerie and another of a shirtless man with a six-pack you could grate cheese on. But the images weren't the most controversial part. It was the text sandwiched between those images that said, Life's short, get a divorce.

Instead of claiming to ease discomfort, as many divorce lawyers do, this law firm boldly appealed to people who want out and want out now. But here's the surprising part. The law office behind the Racy ad was an all-female firm. It was led by attorney and former Playboy model

Corey Fettman. The ad received a ton of backlash from fellow divorce lawyers and the general public Fettman even got death threats A week after being put up, the billboard was taken down But not because of the numerous complaints to the Bar Association The reason given was that the law firm didn't have the proper permits for the billboard. Fetman says the decision was purely political. But despite the loss of the billboard, the phones at Fetman Garland & Associates rang off the hook, proving that controversy as an advertising strategy can attract a lot of attention.

But within the contentious divorce category, there is some highly creative advertising being done. Take this campaign from the Maryland-based divorce firm Esteban Gergely. The small law office was looking to compete with much larger law firms. So they took to YouTube, a place where many couples post their wedding and honeymoon videos. The law firm posted a series of three videos, which, by the thumbnails, appeared to be just that.

One was called The Best Day of Our Lives, Memories from Our Wedding. Another titled Josh and Kimberly, Anniversary Trip to Majorca. Esteban Gergely then emailed the links to 700 prospective clients. But when the clients clicked play, they didn't see couples walking hand in hand on the beach. Instead, text appeared that read, This video has been removed by the user, followed by, Divorce happens, and the Esteban Gergely contact information.

The ad agency that created the campaign said, The removal of a video from YouTube tells a story on its own, since in today's world, when someone gets divorced, they often remove all evidence of their former happy lives from social media. It was a bold strategy, not only because it packed a surprise, but because a video with the words removed by the user is usually the kiss of death on YouTube. But it paid off.

The ads went viral, earning over 90 million media impressions from around the world. The marketing industry called it one of the most creative law firm campaigns of the year. Esteban Gergely saw a 2,000% increase in visitors to their site and a 300% increase in divorce-related calls, proving, once again, that when it comes to effective advertising, creativity is the law. It is ironic that it took a lawsuit to allow law firm advertising. And since then, a lot has happened.

Slip and fall firms fight it out in the media. Divorce firms have dragged the subject of marital disputes out into the spotlight. And, like in any category, it's a mixed bag. Some good ads, some horrendous. There is also a fair amount of aggressive advertising in the law category. But just as yelling in court rarely works, yelling in advertising yields the same results. It's also interesting to note law firms are often held to a higher standard than other service industries. Maybe it's because our livelihoods, and in some cases our very lives, are often placed into the hands of lawyers.

So much is at stake, and the costs are steep. Yet, when we need legal representation in the friction points of our lives, 80% of us search on Google. And that's why advertising is so important to the law industry. But to do it well is still an art. When you're under the influence. I'm Terry O'Reilly. This episode was recorded in the Tear Stream.

Producer, Debbie O'Reilly. Sound Engineer, Keith Ullman. Theme music by Ari Posner and Ian Lefevre. Research, Jillian Gora. Co-writer, Sydney O'Reilly. If you liked this episode, you might also enjoy an episode titled You'll find it in our archives. See you next week. Under the Influence. Because justice never sleeps.

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