Time to Curb Lawyers’ Late-Night TV Ads

The problem with our legal system, comedian Steven Wright points out, is that “99 percent of lawyers give the rest a bad name.” He must have hit a nerve. In 2006, the Association of Trial Lawyers of America realized their name wasn’t exactly generating warm fuzzies, prompting them to rebrand as the “American Association for Justice.”

So, we had it all wrong. They’re not greedy trial lawyers, they’re here for “justice.” And get with the times, do not accuse them of “ambulance chasing.” How gouache. No, today’s justice warrior is modern and sophisticated, he can find all the victims in need of his services right on their living room couches or Posturepedics watching late-night TV.

Like a mile-long tuna net dragging through the Atlantic, trial lawyers … er, justice guys, snag clients by the boatload with the help of lead generators and aggregators. In 60 seconds, TV viewers and internet surfers can quickly be folded into massive multi-billion-dollar tort litigations against medical companies or other businesses unfortunate enough to have the financial assets that make them worth targeting.

Of course, there are people with legitimate claims, but the attorneys behind the ads don’t care whether the viewer actually suffers a condition or if that condition is tied to the targeted company; the more plaintiffs that sign up, the higher the likelihood of forcing defendant companies to settle for outrageous amounts of money. With contingency fees that may be as high as 40 percent, lawyers rake in the cash as their clients receive a mere pittance, if anything at all.

The attorneys and firms that specialize in this kind of litigation are expanding. In 2021 alone, an estimated $971 million was spent on 15 million TV ads for legal services or soliciting legal claims. Utilizing this strategy enables attorneys to aggregate personal injury cases they can turn into mass tort litigations or federal court Multidistrict Litigations (MDLs) that allow similar allegations to funnel down to a single judge. The court system is being swamped, as the volume of these cases has tripled from 2013 to 2019, with nine out of 10 consisting of mass torts or product liability cases.

Tort litigation moves slowly, and plaintiff attorneys benefit from the substantial costs of prolonged discovery and endless motions that drive up their fees at settlement or final judgment. Even more appalling is that these efforts are frequently funded by high-dollar investors who expect a big return. And that return comes directly out of our pockets.

The price tag of our nation’s exploding litigation industry is closing in on $500 billion annually, over 2 percent of our GDP, while costing the average U.S. household $3,621 in 2020. In an election year where the economy and inflation are the top issues, reform of our nation’s tort system should be as well. Yet unlike the numbers flying by on the gas pump or the credit card hit from a grocery store, the tort tax remains hidden.

Settlements, of course, are the desired outcome for the lawyers who script litigation. With lawsuits that can be based on junk science and dubious causal evidence, TV attorneys try to avoid court like a cat avoids water. Otherwise, there is no windfall payday unless they painstakingly substantiate their claims in court. The authenticity of their clients can be quite suspect as well. Vague and often misleading advertisements to recruit plaintiffs can lure in people who have suffered no harm but see a path to a quick buck.

Mass tort litigation is a serious and expensive problem for our nation. From 2016 to 2020, the direct economic costs of the tort system grew at an annual rate of 6 percent, more than twice as fast as GDP. With the election under 80 days away, this issue should be something on every voter’s mind. Mass tort litigation costs everyone and needs to be reined in by our lawmakers.

New rules are needed to control deceptive legal advertising. The First Amendment allows restrictions on commercial speech that cannot be substantiated. Requiring ads to be truthful and that attorneys disclose the plaintiffs’ and their own projected financial remuneration would go a long way toward pulling the brakes on this runaway locomotive. Ending these elaborate corporate shakedowns will take money from lawyers’ pockets and put it back into the productive economy and consumers’ wallets, where it belongs.

Gerard Scimeca is an attorney and chairman of CASE, Consumer Action for a Strong Economy, a free-market oriented consumer advocacy organization.

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