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The Pitfalls of Lawyer Advertising

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Author: Stephen G. Schwarz

A case decided by a jury in Rochester presents a glaring example of why choosing a lawyer to represent you in a serious personal injury matter should be a far different process than choosing a laundry detergent. A jury awarded the plaintiff in that case $1.9 Million Dollars against his former lawyer, a man who in recent years has flooded the airwaves with his advertisements proclaiming that he is the meanest, toughest, smartest lawyer in town and will always get you a big cash settlement.

What the trial of that case revealed was that contrary to the claims of maximum cash made in the advertisements, the client was talked into settling for only a fraction of what the case was actually worth. Even more troubling were the revelations that:

1. The very first time the client ever spoke to any lawyer from the firm was the day he was asked to sign the release for the settlement. Prior to that his only contact was with support staff;

2. The client was encouraged to accept the settlement on the basis that another better claim existed, when in fact, there had been no investigation of this second claim and it was ultimately never pursued;

3. The meanest, toughest, smartest lawyer in town according to his commercials admitted in his videotaped deposition played to the jury that he has never once tried a case in court and lives in Florida!

Prior to the United States Supreme Court decision forcing states to lift the ban on lawyer advertising on First Amendment Grounds, most people had to research their choice of a personal injury attorney by asking friends, a family attorney or someone involved in the court system for a recommendation. Now attorneys competing for personal injury clients appear on virtually every billboard on the expressway, on countless, tasteless, radio and television ads and sometimes send direct solicitations to injured individuals. Although the Supreme Court has held that this lawyer advertising cannot be prohibited, it is well recognized within the legal community that the advertisements are frequently not providing potential clients with the information they really need to make an informed choice.

If you are injured by the negligence of another and need the assistance of an attorney, you should ask the following questions:

A. Who will try the case? Although it is perfectly appropriate for younger, less experienced attorneys to work on your case, you need to find out who is ultimately responsible if the case does go to trial and whether that person will be involved all the way through.

B. Is the trial attorney experienced in the type of case involved? All personal injury cases are not alike. Medical malpractice cases, for instance, are far different from automobile or construction accidents.

C. Is the trial attorney experienced at trying cases? Although many cases settle, in this field a number do get tried. When choosing a surgeon to perform a particular procedure most people want to know if he or she has done this procedure before and how often. The same question should apply to trial attorneys.

D. Is the trial attorney recognized by his or her peers as knowledgeable? New York now requires all attorneys to perform 12 hours of continuing legal education each year. These programs are usually taught by other attorneys in the community. Find out if the attorney you are considering has been asked to lecture to his or her peers in one or more of these programs.

You should also not be enticed by the offer of a free initial consultation. Virtually all personal injury attorneys accept contingent fee arrangements which provide for the attorney's fee to be paid out of the recovery. So the offer of a free initial consultation is actually universal in this field and not something special a particular attorney is offering just to you.

If you have no way of identifying experienced attorneys there is help available. The Monroe County Bar Association has a lawyer referral service that will provide the names and phone numbers of attorneys who practice in various areas of the law. The American Board of Trial Advocates, a national organization of experienced trial lawyers, has a website at that will identify trial attorneys by region who have been accepted into the organization. Many law firms also have websites with much more useful information than can be displayed in a billboard or 30 second television spot. The best source remains someone like a family attorney or friend who is familiar with the court system that knows who the most experienced and reputable attorneys are.

Not all attorneys that advertise are incompetent. But many are not what they seem, and this recent case highlights the pitfalls of accepting these advertisements at face value.

About the author

Stephen Schwarz joined Faraci Lange in 1984 and was named partner in 1988. He has served as managing partner since 1995. He focuses his legal practice on personal injury and business litigation, including medical malpractice, product liability and toxic tort cases.

After graduating from Albany Law School, Stephen joined the law firm of Harris Beach. In 1982, he accepted an appointment as confidential law clerk to Chief Judge Michael A. Telesca, U.S. District Court for the Western District of New York.

As one of the most respected attorneys in Rochester, Stephen has been awarded Martindale-Hubbell's highest rating and is listed in the personal injury law section of the prestigious The Best Lawyers in America directory. In 2004 he received the Raymond Pauley Award from the Monroe County Bar Association for excellence in continuing legal education presentations to fellow lawyers. He also received the Special Service Award from the U.S. District Court, Western District of New York, in 1998, and the President's Award from the Monroe County Bar Association in 1995 for his work on the judicial candidate evaluation program.

Stephen is a past president of the Rochester Chapter of the American Board of Trial Advocates. He has recently been elected a diplomat in the American College of Trial Lawyers joining his partner Angelo Faraci in that prestigious organization. He is also a member of the Association of Trial Lawyers of America, the New York State Bar Association, the Monroe County Bar Association and a past president of the Genesee Valley Affiliate of the New York State Trial Lawyers Association.

He has written articles for Voir Dire magazine, including a recent article entitled 'The Vioxx Saga' published in Winter of 2005. He has also published articles in Trial Magazine and the New York State Bar Journal as well as numerous essays on topics involving civil litigation for the Rochester Democrat & Chronicle. He is a frequent lecturer on a range of litigation topics at continuing legal education programs presented by the New York State and Monroe County Bar Associations.

Stephen is a former board member and former board president of the Family Resource Centers of Rochester, and he is a past chair of the Attorneys and Professional Divisions of the United Way of Greater Rochester.

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