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August 13, 2003

Indiana High Court Huffs and Puffs Over P/I Ads

Filed under: pre-06-2006 — David Giacalone @ 2:11 am

What’s more insulting and injurious to the consumer: annoying-but-humorous personal injury ads that only an idiot would believe, or court decisions that assume consumers really are idiots? The Indianapolis Star carried an Associated Press report last week (by Mike Smith, Aug. 9, 2003) on just such a decision by the Indiana Supreme Court. [link to the article from Newswire, 08-13-03, and to the decision in Matter of Keller & Keller from The Indiana Law Blog, 08-08-03]

The Court publically reprimanded the firm Keller & Keller for a series of tv dramatizations in which insurance executives are terrified into settlement by just hearing the name of the firm. According to the AP article, the Court concluded:

“The respondents’ advertisements create an impression that the claims they handle are settled, not because of the specific facts or legal circumstances of the claims, but merely by the mention of the name of the respondents’ firm to insurance companies.”

With all due respect, this is just plain silly, highly insulting to consumers, and a waste of judicial resources.   The Federal Trade Commission knows a thing or two about misleading and deceptive ads.   As the FTC explained in its Policy Statement on Deception (1983), “[W]e examine the practice from the perspective of a consumer acting reasonably in the circumstances.   If the representation or practice affects or is directed primarily to a particular group, the Commission examines reasonableness from the perspective of that group.” Therefore:

The Commission generally will not pursue cases involving obviously exaggerated or puffing representations, i.e., those that the ordinary consumers do not take seriously.

North Carolina case involving the same ad campaign is described in an AP article archived at the highly informative First Amendment Center  (“Lawyers’ dramatic TV ads don’t make cut for federal judge,” AP, 07-25-01). The article quotes David Daggett, whose law firm ran the offending ad (over 10,000 times):

“We understand that law firm advertising makes some lawyers uncomfortable, especially with dramatizations,” said David Daggett, whose law firm sued the State Bar over the right to air the commercial.

“But the bottom line is that consumers are savvy enough to recognize that it’s just a commercial,” he said yesterday.

For an excellent history of First Amendment cases dealing with lawyer advertising, including links to the decisions, see the Overview by David L. Hudson, Jr., research attorney for the First Amendment Center.

If courts and bar associations really want to help personal injury victims, they should start making sure that contingency fees are reasonable and that clients are fully informed about their right to negotiate over the percentage charged.   And, they should stop wasting their time fuming over ads that we all love to hate, but are all about familiarity and name recognition, not believable claims. 

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