A Brief History of Legal Advertising and the New Legal Landscape

The following is adapted from The Game Changing Attorney by Michael Mogill.

The modern lawyer was born in 1977, when a pivotal Supreme Court case upheld the right of lawyers to advertise their services. Advertising was highly common and unregulated in the nineteenth century (even Abraham Lincoln advertised). By 1908, the Board of Ethics for the American Bar Association (ABA) published the Canons of Professional Ethics, which stated:

Attorneys could only advertise through listings in a legal directory, business cards, and letterheads. This restricted attorneys’ ability to get their name out through any channel other than word of mouth. In the early seventies, Bates v. the State Bar of Arizona changed everything. During this landmark case, the ABA was called to defend its strict no-advertising policy. Their argument essentially came down to two main points:

  1. Legal advertising was unprofessional, and presented the legal profession in a negative light
  2. Legal advertising would place too much burden on the legal system.

On that second point, the Bar worried that legal advertising would be so effective that it would dangerously increase litigation. Further, lawyers would raise their rates to cover the cost of advertising. In retrospect, there was probably some truth to their arguments.

If you read between the lines of this case, you can see a general disconnect between the two parties’ view of the legal profession. On the one hand, the state bar associations saw the legal profession as noble. They believed that an increase in advertising would promote a larger client base and make it harder for lawyers to serve their clients.

On the other hand, the attorneys themselves had a much more essential argument, which essentially boiled down to, “Hey man, we’ve got to put food on the table.” They argued that the bar associations were detached from the day-to-day reality of practicing law in the late 20th century. The Bar wasn’t the one trying to attract clients. The Bar wasn’t the one worrying about whether their phone was going to ring today. The ban on advertising meant that lawyers didn’t have direct access to potential clients, and this was crippling their practices.

To be fair, this wasn’t the Bar’s intention. Even today, regulation on legal advertising is essential to the credibility of attorneys everywhere. For example, the classic “This is not a typical result” disclaimer.

Without regulation, legal advertising would be the Wild West—and the clients would get caught in the crossfire. But a complete ban on all legal advertising went too far. In the end, the Supreme Court ruled in the attorneys’ favor, determining that the Arizona State Bar Association’s ban on legal advertising was a violation of free speech. Just like that, the ban on legal advertising was lifted.

At first, legal advertising started small, relying on phone books, newspapers, and refrigerator magnets. Then, the ads began to expand to bus stops, billboards, TV, and radio. In the public’s eye, suddenly lawyers were everywhere.

Today, consumers are responding far less to these traditional methods. Saturating the market with obnoxious commercials might bring in a few warm bodies, but the cost per lead has grown considerably higher. As consumers shift toward digital and social channels, they are becoming more educated and discerning—fundamentally transforming the customer decision-making process. To put it plainly, lawyering ain’t what it used to be.

THE NEW LEGAL LANDSCAPE

This is the reality of the modern attorney. In an internet-driven market, today’s lawyers have to be aware of terms like SEO, page rank, and backlinks. They have to understand online directories like Avvo or Yelp, how to use paid advertising with Google AdWords, and how to create an authentic social media presence.

Over the past two decades, a vast digital marketplace has grown out of nothing, and many attorneys are still struggling to keep up.

You can learn about some social media concepts marketing your law firm in the new legal landscape here.

ATTENTION ECONOMICS

The legal profession is more competitive than ever before, with 1.3 million lawyers in the United States (and more passing the bar every year). That’s one lawyer for every 250 people.

On top of this: you’re not just competing against other lawyers and their marketing. You’re competing against every other piece of content fighting for consumers’ attention as well. Forget lawyers versus lawyers; in the real world, it’s lawyers versus bakeries, banks, and every other business out there advertising in the world.

Welcome to the world of attention economics, where businesses live and die by the attention resource cycle. Attention economics is the scarcity you face when you try to compete for attention while thousands of other brands and people try to do the same thing. Here’s how it works: the more brands, companies, and even individual marketers who fight for the average user’s attention, the scarcer that attention becomes. The average person is inundated with marketing messages, from inboxes and newsfeeds, to billboards and refrigerator magnets. To get through their day without feeling overwhelmed, they have no choice but to filter out the vast majority of messages from this endless barrage.

The more audiences tune out, the more conversion rates drop, resulting in fewer leads in the sales pipeline and ultimately fewer paying customers. Seeing this, businesses become eager to produce better results, so they repeat the cycle, churning out more and more marketing messages to capture or retain their small sliver of the attention pie. Unfortunately, the audience only retracts further, sales continue to drop, and the cycle continues.

While it can feel hopeless getting caught in the attention resource cycle, those who recognize it find themselves with a great opportunity. If everyone’s competing for attention using the same tactics, then the businesses that don’t play that game and instead work to differentiate themselves begin to create a market of their own.

COMMODITIZATION

Another challenge lawyers face is commoditization, or commodity mindset, in which consumers think of businesses purely in transactional terms. Florists grow flowers, dentists work on teeth, and lawyers provide legal services. Nothing more, nothing less.

Such a mindset creates a problem. Take two competing airlines, Delta and Spirit. Both offer flights to the same location, leaving and arriving around the same time. Spirit, however, offers that flight for a third of the price that Delta does. From a commodity mindset, a customer fly with Spirit. However, as they soon discover, the only reason anyone would choose to fly Spirit is if they’ve never flown Spirit. A ticket with Spirit may be a cheaper commodity, but it’s also a far inferior service.

I frequently have this same discussion with the law firms I work with. When they first come to us, I look at their online presence (website, social platforms, etc.) to get a sense of the current state of their brand. Many homepages feature welcome videos shot on smartphones. Even worse, the messaging is unclear or even harmful.

“This is your brand,” I tell them. “This is your clients’ first perception of you. They haven’t met you yet, and they’re trying to find legal counsel they can trust. What message do you think you’re sending them with this video?”

To be clear, these are good firms with passionate attorneys with a proven track record of success. However, they compromised on their marketing, and their content only had one message for prospective clients: “We’re cheap.” As soon as they see that, they’ll take their business elsewhere.

Or at least, the more discerning clients—the clients you want the most—will go elsewhere. Clients approaching you with a commodity mindset might stick around. They can’t see, or aren’t interested in, the difference between a good attorney and a bad one. All they want are your legal services at the best possible rate.

Commoditization is a race to the bottom. McDonald’s firms get McDonald’s clients. The law firm that cuts corners on quality but offers the lowest prices will attract plenty of clients, but not any good ones.    

You can read more about online marketing pitfalls to avoid here.

THE COST OF HIRING THE WRONG ATTORNEY

I once interviewed a young man who grew up poor in Section 8 housing in the inner city. He had three or four siblings, and his father had passed away when he was still young. As I interviewed him, he told me the story of his family’s legal battle after his mother had become so injured in a truck accident that she was unable to return to work.

Not knowing any better, the family went with the cheapest legal representation they could find. Unfortunately, this attorney wasn’t any good at his job and negotiated a settlement with the insurance company for $10,000 — not even close to enough to cover the mother’s mounting medical bills or lost wages. His family has struggled ever since.

The lesson? There’s nothing more expensive than a bad lawyer.    

Situations like this should never happen. First is the economic reality of a catastrophic trucking accident. Though it sounds callous, cases like these are generally desirable for personal injury attorneys. A multimillion-dollar judgment against a trucking company can bring in six or seven figures for the attorney.

Second is the impact a more favorable settlement would have had on that family’s life. A seven-figure settlement could have covered that family’s medical bills so they weren’t buried under debt. They would have had support and been better positioned to begin helping themselves. A large settlement isn’t about giving everybody Ferraris and a mansion, but about sustaining a large family until they can get back on their feet.

Ultimately, this is the danger of commoditization. If the market assumes that all lawyers are the same, prospective clients will simply hire the first one they see on a billboard. Sometimes, those clients could luck out with a quality lawyer. Far too often, however, they end up being the ones who suffer most.

WHAT A TIME TO BE ALIVE

Despite this seemingly harsh reality, it’s easier to compete now than ever before. There truly has never been a better time to share your message with potential clients.

Before the internet, before digital and social media, the barrier to entry was greater. If your firm couldn’t invest in a billboard or a TV ad, then you couldn’t compete with the firms that could. Today, you can.

Digital media levels the playing field. You no longer have to break the bank to compete with the Goliaths of your market. Instead, you just have to identify your market, find your point of difference, and share your message. That’s exactly what Rice & Kendig Injury Lawyers did with the following video:

Buying the necessary time on TV to get this three and a half minute video played consistently would be borderline impossible previously.

Remember, people still need lawyers. People are still getting injured, divorced, and declaring bankruptcy. You could be the best in your market, but prospective clients still need to be able to find you. If a steady diet of TV ads and billboards isn’t cutting it anymore, then perhaps it’s time to admit you’re not immune to change and adapt your strategy.

MAKE IT ABOUT VALUE

If your market just sees you as offering a service then they’re just going to shop around on price. They won’t be concerned about value, just the bottom line. They don’t know that the quality of a lawyer can greatly increase the success of their case.

Your job is to change the conversation. Instead of making it about cost, make it about value. Then, learn how to communicate that value so that you’re the obvious choice in your market just like Feldman Legal Video did here:

Fortunately, you’ve got plenty of communication channels to choose from—some traditional and some digital. Both have their benefits, but effective marketing doesn’t come down to platform. It comes down to quality and giving your audience a reason to care. If you don’t differentiate, you will stagnate.

Eventually, you’re going to get tired of missing out on all the best cases.

For more advice on designing a video marketing strategy, you can find The Game Changing Attorney on Amazon, or download the entire first chapter for free here.

Michael Mogill is Founder and CEO of Crisp Video Group (www.crispvideo.com), the nation’s fastest-growing legal video marketing company and the author of the “The Game Changing Attorney” (available on Amazon). He’s helped thousands of attorneys — from solo and small firms to large practices — differentiate themselves from competitors and earn millions in new revenue. Crisp has been named to the Inc. 500 list of America’s fastest-growing companies and has been awarded Best Places to Work. A sought-after speaker, Michael often presents at national conferences on innovative ways to create exponential business growth. His advice has been featured in publications such as Forbes, Inc., Avvo, ABA Journal, The Trial Lawyer, Huffington Post, and The Wall Street Journal.