Trial Lawyer Ads Spawn a Multitude of Meritless Claims

COMMENTARY

By now we’re all familiar with endless trial lawyer television advertisements, which often amount to transparent ploys to generate frivolous lawsuits and quick windfall profits.  

In the gray area between legitimate advertising and outright deception, murky client prospecting of that sort constitutes an expensive danger that grows every year. 

Far too often, law firms specializing in mass tort litigation exploit those fear-inducing ads to recruit claimants for lawsuits that target legitimate prescription drugs, medical devices or exposure to substances contained in frequently used products. The more clients they recruit — regardless of whether the people responding to their ads have suffered actual harm — the better their chances of winning court judgments or settlements producing millions of dollars. 

Those lawyers, usually working on a contingency fee basis, know that less than 1% of cases go to trial. Most end in settlements, from which the lawyers typically receive between 33% and 40% of the total amount awarded. 

The number of lawsuits generated in that manner has exploded in recent years.  Exacerbating matters, individual cases are then often consolidated into mass torts and assigned to a single judge in multi-district litigation, straining the federal court system.

The number of MDLs filed continues to increase exponentially each year, now accounting for nearly 80% of all pending federal cases in the United States. 

Obviously, those ads serve to recruit new clients, and the more the better for their aims. The ads serve additional purposes for personal injury attorneys as well, however. 

Namely, the ads themselves can influence legal outcomes toward the lawyers’ ultimate benefit. 

Over-the-top attorney advertising often targets locales where the trials are held, thereby planting a seed in potential jurors’ minds that the targets of the ads may be at fault, in turn predisposing them to vote in favor of the plaintiffs.

The ads also serve to generate negative — and often unfair — PR among the public about the companies accused of misbehavior. Avoiding those sorts of public misconceptions, even when those companies have done nothing wrong, can motivate companies to settle otherwise meritless claims. 

That is not how our legal system is supposed to work, and it undermines rather than advances judicial fairness. 

Moreover, businesses are not the only victims of those questionable ads.  

Rather, the ads are deliberately crafted to instill fear in viewers, which can cause them to stop taking effective medications.   

For instance, consider a 2017 survey with a sample of 1,335 respondents that included 500 individuals who were either currently taking or had previously taken one of 12 prescription drugs commonly targeted by personal injury lawyers. Nearly half of the respondents indicated they would or might cease taking the maligned drugs immediately after viewing the advertisements.

Furthermore, when presented with actual TV lawsuit ads concerning drugs that they or household members had used, over half stated they would decrease the dosage below the prescribed amount. 

Accordingly, beyond simple judicial system abuse, shady ads can create real-world health repercussions. 

This growing public health issue also drains economic resources, diverting company funds from business investments, research and development, and other legitimate pursuits toward the pockets of opportunistic trial lawyers.  

The good news is that some states have passed laws to curb misleading plaintiff attorney advertising. But so far, that’s not nearly enough. More states and Congress need to follow suit in targeting deceptive and manipulative ads, and ensure that regulations requiring accuracy and transparency are enforced. 

Although attorneys and law firms remain free to advertise their services and address legitimate legal claims, all too often the proliferation of trial lawyer advertising fuels a rise in meritless claims and creates significant economic and public health repercussions.

Where lawyers play too fast and loose with the facts and deceptively encourage improper claims, legislative action offers a potential solution of last resort to correct that growing problem. 

Timothy Lee is senior vice president of Legal and Public Affairs at the Center for Individual Freedom. He can be reached on LinkedIn.