'$10 Million? You don't blink at that anymore': Are lawyer billboards affecting juries?

Editor’s Note: This is the second installment of a multi-part series examining the factors affecting the rise in nuclear verdicts across the insurance and legal industries, and is published in conjunction with our sister publications on ALM’s Law.com websites. 

Why do personal injury lawyers advertise on television and billboards? Maybe because it helps them find clients amid heavy competition, or to inform the public about their rights, or even to build a lawyer’s name recognition.

But does lawyer advertising lead to bigger recoveries for plaintiffs?

The defense bar and insurance companies think so. They use the term “social inflation” to describe a pattern of longer trials and larger verdicts and settlements that are not supported by a legal or factual basis.

Such outcomes have been described as “nuclear verdicts,” and more recently the term “nuclear settlements” has come into use.

The causes behind the social inflation theory are numerous, but one of them is that attorney advertising affects the public in unexpected ways, according to some defense lawyers.

When plaintiff-side lawyers get a big recovery, they advertise it on billboards and in television commercials and seek publicity in the media, said Robert Tyson, a defense attorney at Tyson & Mendes in San Diego who advises other lawyers on how to avoid nuclear verdicts and settlements.

Such ads serve to desensitize potential jurors to the idea of awarding large sums, Tyson said.

A lawyer who obtains a hefty recovery is “able to advertise it as plaintiffs lawyers, in order for it to get published in newspaper articles and for the general public who sits on the jury to get numb to it, right? Like, what’s the value of a life now? $10 million? You don’t blink at that anymore,” Tyson said. 

‘Potential jurors see these numbers’

Attorney advertising not only helps plaintiffs lawyers recruit new clients, but ads also have a powerful influence on potential jurors, the Defense Research Institute said in a white paper on social inflation.

The DRI describes itself as “the largest international membership organization of attorneys defending the interests of business and individuals in civil litigation.” It cites a $2 billion verdict that an Oakland, California, jury awarded in 2019 to a husband and wife who claimed they developed cancer from using the weedkiller Roundup.

The DRI said a widely aired local television ad in the weeks before the trial touted another jury award for “nearly $300 million” in a previous Roundup trial in neighboring San Francisco.

“High jury verdicts posted on billboards or touted on television and social media have an effect. Potential jurors see these numbers on a regular basis and become desensitized to the gravity of these large numbers,” the DRI white paper said. “They may believe such verdicts are awarded with regularity, in the normal course of the legal processes. They are certainly not advised of defense wins, or cases that are ultimately resolved at a much lower figure. Thus, they mislead potential jurors.”

The DRI also said spending on attorney advertising appears to correlate with high damage awards.

Florida, Texas, California, New York and Georgia saw the highest expenditures on legal service advertising in the past five years, the DRI said, citing data from the U.S. Chamber of Commerce.

And the same group found that the top states by cumulative nuclear verdicts from 2010 to 2019 are Florida, California, New York and Texas, with Georgia ranked seventh.

That “appears to support the conclusion that excessive verdicts advertised by attorneys are desensitizing jurors to reasonable verdict figures,” the DRI said.

Attorney ads convey a message that a person who is injured in a car accident, or hit by a big truck, or exposed to Roundup is unequivocally entitled to a big recovery, said John C.S. Pierce, who headed up a social inflation task force for the DRI.

“The advertising simply removes the concept of causation,” Pierce said. “You’re just entitled to it. Defense lawyers have to do a little extra work in getting a jury qualified, to help them recognize that this information that comes in over television and billboards might influence the way they make a decision sitting as a juror.”

‘Inferior lawyers … who bring knives to gunfights’

But plaintiffs lawyers have a different view.

John Morgan, for instance, founder of personal injury megafirm and prolific advertiser Morgan & Morgan, rejects the social inflation concept and its notion that advertising brings bigger awards to plaintiffs.

“Just verdicts come as the result of prepared attorneys who believe in their case and their clients,” Morgan said in an email. “Insurance companies have gone in-house to save money. The result is inferior lawyers in many cases, who bring knives to gunfights.”

Speaking of the notion that lawyer ads have an impact on recoveries, Morgan said, “These lawyers should stop making excuses for their failures and work on their skills and pay fairly. Juries are offended when the defense suggest no liability or low amounts of money where the evidence is contrary to their argument,” he said.

Mark Dubois, whose practice at Geraghty & Bonnano in New London, Connecticut, focuses on legal ethics, attorney discipline and malpractice, said that voir dire typically weeds out any prospective jurors with strong predilections.

“I’ve tried many dozen cases, and no juror ever told me that advertising played any part in their reaching a verdict. Of course, that was before social media. Heck, it was before we even used computers,” said Dubois, a former longtime chief disciplinary counsel for Connecticut who previously practiced personal injury law.

“However, studies of cognitive bias suggest that priming and anchoring strategies can get jurors to pick higher starting points when entering into negotiations, and I can imagine that these same strategies could result in higher verdicts, or at least less resistance to arguments for higher awards,” Dubois said.

He asks if there is any empirical proof of the social inflation theory, noting that coincidence is not equal to causation.

Since the U.S. Supreme Court approved lawyer advertising in the 1970s, the insurance industry has complained that high verdicts, driven by advertising and contingent fees, were raising the costs of insurance, especially malpractice insurance for doctors, Dubois said. But he cited a study that showed no connection between lawyer ads and big awards.

Dubois said, “So I’d view this claim as probably just a continuation of the ebb and flow, push and pull between trial lawyers and insurance companies that’s been going on for the last 50 years.”

Related:

Pain and suffering: 10 of the toughest verdicts to hit the insurance industry

Runaway verdicts: Reversing the trend

‘Bull demand’ nets $3M settlement with trucking company’s insurer

Litigation funding blamed for spiking insurance settlements – but is that really true?