phillips & hunt Jumped the Shark
You may have heard the expression, “jumped the shark.” It is used to describe the moment when something begins to decline in quality such that it relies on gimmicks in an attempt to keep viewers’ interest. It is taken as a sign of desperation, and it is often seen by viewers to be the point where the good or service has strayed irretrievably from its original formula. It stems from the once-popular television show Happy Days and its tough guy main character Fonzie. Generally, the setting of the show was in homes, a diner or a school and involved usual teenage angst. However, in a moment of “we need ratings and let’s do something crazy,” writers had Fonzie jump over a shark while on water-skis. It was the beginning of the end and coined an expression for the ages. Watch here:
Mass advertising lawyers have clearly, and without question, jumped the shark. The field of personal injury is about helping people navigate through financial recovery against insurance or businesses who are trying to save money. It’s basically that simple. It’s more complicated at its essence when you add in the rules, laws, jury decisions and nuance which makes good lawyers great and lawyers who put profit over people… well, sharks.
The Spectacle: “Magic” Tricks, Dogs, Jaguars and Celebrities
To have “jumping the shark, you need a shark and some spectacle.
Let’s first focus on the spectacle. Lawyers cannot use celebrities in advertising. Rule 4-7.15 states, “A lawyer may not engage in unduly manipulative or intrusive advertisements. An advertisement is unduly manipulative if it… (c) contains the voice or image of a celebrity.” The Bar doesn’t want paid endorsements. One personal injury firm, Berman & Berman, found a back door to this Rule a few years ago, as they avoided trouble by putting former Jacksonville Jaguar and Florida Gator Fred Taylor “on payroll” as an employee to avoid a paid endorsement. However, he had no legal experience and clearly used his likeness to market. We assume the Bar approved these ads as all must be approved. Regardless, Taylor is no longer with that firm in any way, but they still use his face to advertise and market as this YouTube video indicates:
Should lawyers be able to use the free market, including celebrities, to promote? Should they be able to retain any celebrity they want to do a testimonial? Maybe, but the Rules say we cannot. Don’t assume that someone who will take advantage of a situation for one person won’t turn around and do the same to you.
Jacksonville personal injury firm takes a step back from Fred Taylor by hiring actors seemingly pretending to be professional football players. This likely avoids Rule 4-7.15 trouble by using “fake” professional football players (and thus non-celebrities) in this 2015 campaign and their disclaimer even acknowledges that. It also takes advantage of their 6-figure sponsorship package with the Jacksonville Jaguars, allowing them unique access and one of the greatest “jump the shark” campaigns I have ever seen. Once again, Bar approved. It literally has NOTHING to do with law, justice or being injured:
Lawyers aren’t supposed to use deception or tricks to win business. Morgan & Morgan does just that in its recent “magic” act advertisement. They tell you to “pick a card.” John Morgan then pretends to guess your card and says he will make your card disappear. Well, all of the cards are different. They all disappeared. It’s deceptive. Maybe I missed the joke.
They also have you email their dog. It’s cute. And apparently wildly popular. As was Fonzie.
And then there is their “Billboard vandalism” desperate attempt to get on the news. You can read about it below, but basically, they had people overlay their conventional billboards with ones which looked like they had been spray-painted. They took to social media to express praise for the graffiti as it was all pandering to local sports teams or markets. Read more here:
The Shark: Incentives and Penalties Which Put Clients in Danger
Not only do firms like this charge the consumer the legal maximum in most instances, but some are known to charge exorbitant costs back to clients and uses employee incentives to push money into its coffers. In other words, that shark can bite.
COSTS: When I worked at one of these firms for a brief time, I had over 500 cases under me. Each client paid for every piece of paper in their file… and then some… postage, legal research and long distance. It has even expanded to digital scans. Who even pays for long distance calls these days anyway? The same model applies at most mass marketing firms. They have to make sure every penny is accounted for to pay for their bloated marketing budgets of millions of dollars per year and resort to making their staffs put self above service.
FEES: In his book, You Can’t Teach Hungry: Creating the Multimillion Dollar Law Firm, John Morgan, founder and principal of Morgan & Morgan, boasts he held a meeting and announced, “every lawyer in the firm would be required to try AT LEAST THREE FIRST CHAIR JURY TRIALS A YEAR” (emphasis in original). Further, he says on page 40, “As a consequence for not trying three jury trials a year each non-complying lawyer would forfeit twenty-five thousand dollars of their compensation.” Many in the public see the trials which go on in shows like Suits, CSI, Law & Order and the like and think they must happen all the time. In the civil context, great lawyers may only actually try 2-3 cases per year before a jury. I know some who have worked up files so diligently that they missed trying a case in any given year or two.
Morgan indicates some lawyers balked at this, saying it might be an ethical violation. He insisted it was his own lawyers who might have committed an ethical violation saying, “that the real ethical violation was for the past five years and in some cases longer; certain lawyers had accepted the final offer from the insurance company.” So, is he admitting his model was unethical? Or is he now saying forced trials is in line with state Bar rules?
Firms like this are also has been known to have “incentive months,” whereby if a certain number of cases are settled or a certain amount of money from attorney’s fees is brought in, everyone goes on vacation paid for by the firm. This “Million Dollar May” atmosphere may be a great incentive to the lawyers and staff. Other firms are said to offer a five-figure cash bonus to case managers if they bring in a certain amount of money each quarter for four consecutive quarters. Again, in John Morgan’s book, he talks about incentivizing or stigmatizing One needs to think about it from the client’s perspective. Even in John Morgan’s book, on page 103 and throughout, he refers to cases as “inventory.” These are people with problems.
The client. Let’s say Tom Smith has waited for two years for his case to settle or go to a jury trial. It is set for trial in November of 2015. Tom’s lawyer, a lawyer over at Morgan & Morgan, has already tried his three cases in 2015. He thinks about moving the case to 2016 as the $25,000 is always on his mind. He’s never told the client about the requirement because he signed a confidentiality agreement with his firm. If he seeks and gets a few month delay of trial, saying he’s not ready? Is that fair? Ethical?
What about the reverse? Tom Smith has a trial set in November of 2015, but the case isn’t ready. Tom’s client needs another surgery or his doctor is not available to testify live as they hoped. Tom’s lawyer, a lawyer over at Morgan & Morgan, doesn’t have his three cases yet in 2015. Is he tempted by the loss of $25,000 to try the case before December 31? Is that fair? Ethical?
That’s the shark. Maybe it won’t bite. Maybe these rules are for the greater good of the firm, but it creates a conflict of interest and puts lawyers and clients in potentially bad situations.
We will never know because clients aren’t told about this in-house rule and probably don’t read John’s book. Whether any client has ever been prejudiced by it is a separate issue. Lawyers must not only avoid impropriety, but the appearance of impropriety. This Rule puts good lawyers in bad positions. It’s unfair and a sign of greed- putting a firm above its lawyers and clients.
The same goes for incentive months and periods. Cases settle when they are ready to settle- when they are worked up correctly, medical records collected, analyzed and presented and the like. Forcing a group of non-lawyers, and specifically non-lawyers, to force cash into a pipeline in a given month makes them make tough decisions- (1) to settle this case a month earlier if it is ready- an obligation which they owe the client; or (2) on the other hand, to settle a case prematurely which could benefit from more work because, well, everyone either gets a vacation or not. No pressure, right?
This is the shark in jumping the shark. Jumping it is the clown show that came along with it- Fonzie and his water-skis.
Don’t Let Fonzie Be Your Lawyer
We hope clients will chose their lawyers carefully. And ask a lot of questions. Don’t hire Fonzie.
We invite you to review our verdicts, our accolades and awards and what clients have to say about us and give us a call for a free consultation where our lawyers will consult with you personally. John and his team represent clients in Florida, Georgia and Alabama and before the U.S. Supreme Court with passion and compassion. Our firm handles a wide variety of injury and death cases, criminal defense, family law and a host of high profile matters. We can be emailed at [email protected] or call us at (904) 444-4444 (in Florida) or (912) 444-4444 (in Georgia).