Trial Lawyers’ Marketing Machine Needs a Reset | COMMENTARY

If you ask most Americans when it’s time to call a lawyer, the answer is no mystery: After a law has been broken, one is forced to do so.

Just as we don’t ask doctors to prescribe us medicine before we get sick, most people don’t pay a lawyer and then go off to commit crimes. Trial lawyers, however, may be the exception. When there are no injuries, one has to be invented.

Legal marketing is a multi-billion dollar industry that generates class action lawsuits. The business model at play is deceptive, wasteful, and extremely lucrative. Backed by wealthy members of Wall Street and Madison Avenue, trial lawyers galvanize hundreds, if not thousands, of baseless lawsuits through clever advertisements. The lawsuits are targeted at specific companies or industries and then packaged into class action lawsuits, taking full advantage of the defendant.

This mess is costly for consumers, as companies are forced to beef up their legal departments and pass on their increased costs to customers.

The peculiar world of legal advertising for liability cases is so ubiquitous that most of us probably don’t even recognize it anymore. Car accident? Lawn care products? You may be entitled to compensation!

A recent report estimated that trial lawyers spent more than $971.6 million on 15 million local television ads targeting potential plaintiffs in 2021.

In 1977, a Supreme Court ruling declared that restrictions on legal services advertisements were a violation of free speech, leading to a surge in mass tort litigation. Whatever one thinks of this opinion, spending on trial lawyer television ads reached $1.2 billion by November of that year.

Of course, one could argue that in the United States companies are free to market their products however they want, and most would agree, but we would be remiss if we did not acknowledge the pernicious nature of these hiring announcements that are being filed as a result of class action lawsuits.

The American Medical Association and AARP warn that fear-mongering by trial lawyers is causing patients, especially the elderly, to forgo medical care. The perception is reality for many people, so when actors in a TV ad sternly suggest that an illness may be the result of faulty medication, they listen. No proof required.

Much of this advertising is based on dubious claims and questionable science, and it seeps into the courts every year. The courts are overcrowded with so many unfounded cases that they undermine the credibility of plaintiffs with more legitimate claims.

The tsunami of tort lawsuits is meant to stress our already overburdened court system, and defendants often settle rather than endure what can be years-long legal battles. That way, they avoid costly battles that will sink their company’s stock price and reputation, even if they’ve done nothing wrong.

On top of all this, it is well known that liability law firms are often the biggest beneficiaries of the largest settlements. This gives them every reason to exaggerate claims and get as many people involved in class actions as possible, no matter how absurd the case may be.

The Federal Trade Commission (FTC) was created to police deceptive and unfair trade practices and has been unusually visible during Lina Khan’s tenure, which was marked by suing nearly every major American tech company based on questionable legal theories. Instead, the FTC should focus on a bulletproof case examining the junk science that marketing companies present to the media as “evidence” in their litigation.

If no action is taken at the federal level, the relevant state regulators should mount a defense.

Some states, including Tennessee, Kansas, Texas and West Virginia, have taken steps to better enforce tort laws.

Now that the class action litigation procedure manual is fully laid out, there is no reason for lawmakers around the world not to follow its good example.

We live in a digital age where it is becoming increasingly difficult to analyze the avalanche of information that reaches us. But it is not impossible, however much civil liability lawyers would like it to be.

Yaël Ossowski is deputy director of the Consumer Choice Center. She wrote this article for

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