The ABA Doesn’t Understand Free Market Economics

Facing a severe decline in demand for legal services among moderate-income Americans who don’t believe they can afford legal representation, two years ago the American Bar Association convened the Commission on the Future of Legal Services. This august braintrust recently published the results of its deliberations. Its conclusion: Americans need to be educated that they need more legal services.

ABA-Greedy-DelusionalAs Christy Hoop of Hinshaw & Culbertson LLP summarized in a recent JD Supra post:

The Commission suggests that all individuals should have legal checkups “on a periodic basis, especially when major life events occur” such as a marriage, divorce, the birth of a child or those individuals who may be in a situation which may require a medical health directive or a will.

The preamble to the proposed ABA Guidelines for Legal Checkups declares that “The purpose of legal checkups is to empower people by helping them identify their unmet legal needs and make informed decisions about how best to address them.” What the ABA refuses to recognize or admit is that the legal profession is subject to the the invisible hand of free market economics, and Americans already are making informed, rational decisions about their use of legal services. Namely, lawyers aren’t worth what they think they are.

Let us quickly review the basic laws of supply and demand. As described by Investopedia,

The law of demand states that, if all other factors remain equal, the higher the price of a good, the less people will demand that good. In other words, the higher the price, the lower the quantity demanded. The amount of a good that buyers purchase at a higher price is less because as the price of a good goes up, so does the opportunity cost of buying that good. As a result, people will naturally avoid buying a product that will force them to forgo the consumption of something else they value more. The chart below shows that the curve is a downward slope.


A, B and C are points on the demand curve. Each point on the curve reflects a direct correlation between quantity demanded (Q) and price (P). So, at point A, the quantity demanded will be Q1 and the price will be P1, and so on. The demand relationship curve illustrates the negative relationship between price and quantity demanded. The higher the price of a good the lower the quantity demanded (A), and the lower the price, the more the good will be in demand (C). [Emphasis added]

The ABA Economy

The ABA is essentially a failed cartel or medieval-style guild. While the ABA and state bar associations once controlled prices by controlling the supply of legal services (i.e. licensed lawyers), they essentially undermined their own self-interests by allowing the proliferation of law schools, and by allowing the cost of legal education to skyrocket.

As a result, law schools have become massively expensive diploma mills, resulting in a glut of supply (lawyers) with a cost basis that requires high prices for legal services in order to service law school debt (at best) and the law firm partnership Ponzi scheme model (at worst), which in turn drives down overall demand. In high-end corporate circles, alternative billing arrangements that might lower legal costs (or at least improve the ROI of legal services) have been experimented with for years, but the model has yet to show traction. Meanwhile, the only recourse at the lower end of the economic ladder is the nearly dry well of government-financed legal aid.

Is the ABA Commission on the Future of Legal Services Delusional?

Compounding the legal profession’s supply-and-demand problems is a collective belief that their services are intrinsically worth more than those of other professions. In legal profession navel-gazing blogs — and there are A LOT of them — there is a constant litany of laments about how lawyers can’t live in the style they deserve because non-lawyers don’t understand how much law school debt they have to pay off.

If that’s truly how one feels, be prepared to answer why someone so highly trained still doesn’t understand a basic principle of family budgeting: Don’t incur debt that you know you might not be able to repay (or not be able to live well while repaying it).

The executive summary of the Commission’s findings makes numerous obvious and naive observations, like:

“Many lawyers, especially recent law graduates, are unemployed or underemployed despite the significant unmet need for legal services;”

“The traditional law practice business model constrains innovations that would provide greater access to, and enhance the delivery of, legal services;” and

“The legal profession’s resistance to change hinders additional innovations.”

Yet while full-throatedly recommending impotent measures like the establishment of an ABA Center for Innovation, not one of the Commission’s 12 recommendations even contemplates measures directed specifically at lowering the cost of legal services to average Americans.

Update: More on the Need for Clarity in Law Firm Advertising

Last July I posted an item about the Law Office of Janet McCullar, P.C. website, entitled “Is It an Ethics Violation for a Law Firm to Exaggerate Its Size? Today a PR agency representative of the law firm’s successor, McCullar Gilbreath, contacted me concerning the post.

The post raised the question of whether the context of the uncaptioned photo of five people featured on the homepage promoted the perception that all the individuals depicted were attorneys. Based on the image’s context, my hypothesis was that some of the individuals pictured might be administrative staff and/or paraprofessionals. In the course of my correspondence with the McCullar Gilbreath PR agency rep, she confirmed that two of the individuals pictured were paralegals and one was the office manager.







Uber Sued for TCPA Violations Related to Austin Political Campaign

Uber Austin TCPA lawsuit textFor the past several weeks, ride sharing services Uber and Lyft have been waging an all-out communications offensive in support of a ballot proposition that would preserve their status quo driver background check procedures. On May 4 during a press event given by proposition opponents, activists announced they’d filed a complaint against Uber alleging violations of the Telephone Consumer Protection Act, aka the TCPA.

Local CBS TV affiliate KEYE contacted me for comment in their story on the lawsuit, my main contribution being the observations that 1) informational and political messages are not subject to TCPA requirements when direct dialed and 2) Uber’s service agreement includes prior express written consent language for informational messaging.

TCPA and Me

Not earth-shattering news, but who am I to pass up an opportunity to promote my own thought leadership profile?





4 Personal Injury Lawyer Personas: Which One Are You?

Plaintiff attorneys are a colorful tribe, especially personal injury lawyers. That vibrancy is partly a function of their marketing genius, particularly TV advertising. Late night reruns and daytime talk/courtroom shows are flooded with ads selling the same personal injury plaintiff services, but the value propositions and brands are differentiated in very clear ways:

  • Ads feature a single spokesperson who performs the role of a very specific character — or caricature —  intended to personify the brand (no one actually talks or acts like that in real life, let alone in a courtroom).
  • Exaggerated intensity, ranging from kinetic aggression to intimidating seriousness.
  • A clear, concise slogan and/or positioning statement.
  • SEO-optimized keywords sprinkled throughout.

4 Injury Lawyer Personas in Austin, Texas

This market doesn’t lack for personal injury lawyer ads on local TV programming, but the following seem to claim the largest share of voice. They also represent some distinct archetypes intended to appeal to distinct types of potential clients:

  • The Appeal to Reason — I start with Funk & Associates because principal Yanni Funk’s approach is so starkly different from his competitors in pace and message. Where his competitors are fast-talking, bordering on frenetic, Funk’s tone is slow, calm and a tad condescending — like a teacher or clergyman at great pains to make and reinforce a simple truth. His current catch phrase is “Do the research.” In a couple of current spots he clearly takes a swipe at his competitors by promising “no gimmicks.”

  • The Texan — Injury lawyer Wayne Wright goes full cliche with his spots: Serious sounding voiceovers, suspenseful music, follow shot through luxury office space, book-lined conference room and impressive conference table, assistants handing over files, American flag, a panning shot of a gavel — the usual lawyer tropes. The video below ends with a low camera angle — to make the lawyers look taller. A phalanx of lawyers led by Wright strides purposefully through parting doors toward the camera, as they all place white cowboy hats on their heads. Favorite phrases: “You deserve respect and justice, so we demand it,” says Wright as he leans and punches toward the camera with white hat in hand to emphasize the key words, then grabbing his suitcase and rushing out of frame, as though we’d caught him as he rushes to another courtroom.

  • The Kitchen SinkTony Nguyen manages to cram everything into his adds. Back ramrod straight and arms gesturing forcefully, he promises:
    • We’ll always fight for the big money
    • Interest-free loans (forgiven if he doesn’t “win”)
    • Free consultations
    • We will come to you
    • Biggest settlement possible

And he brings it all home with a memorable toll-free number — 1-800-35 [like the interstate through the heart of Austin]-Texas.

  • No-Nonsense — Austin attorney Ted Lorenz hit the SEO jackpot when he grabbed the URL He has numerous TV spots in rotation, but they all contain some variation on a description of a client’s accident followed by the judgment sum his firm obtained at trial. Keywords include “no runaround,” “no nonsense,” and “it’s just that easy,” and “it’s just that fast.”


What are some of your favorite personal injury lawyer ads, wherever they are? Add your links in thoughts in the comments section.

How to Choose a Law Firm Website Design Firm

law firm website design

Law firm website design cliches

To a greater or lesser extent, all law firm website design firms are Template Jockeys. By that I mean they spin out variations on basic page layouts, site structure and imagery favored by law firms.

Think about it for a minute. Nine out of 10 law firm website home pages have a strong banner across the top featuring:

  • A cityscape
  • Lady Justice
  • The scales of justice
  • Lawyers with their arms crossed and/or leaning against a table
  • A gavel
  • Shelves of “law books”
  • An upset person  next to a car wreck (personal injury law)
  • The American flag
  • Any combination of the above

Why Are All Law Firm Website Designs Basically the Same?

Because 1) that’s what law firms expect and request and 2) budgets for law firm website design aren’t sufficient to support bespoke, coded-from-the-ground-up development. Therefore, adapting standard frameworks and templates is the only way they can make money with law firm clients.

Take for example the homepage boast of web design agency The Modern Firm:

We have worked with over 700 small law firm website design clients since 2000. Most of our clients choose us because we know what to do without being told.

I don’t know about you, but predictability and sameness aren’t qualities that I look for when I’m trying to differentiate my brand.

Spoiler Alert: It’s All WordPress

No matter how much law firm website design firms extol their ability to deliver “customized designmobile-friendly responsive coding, easy editing controls, comprehensive content review and on-page search engine optimization,” the fact is those capabilities are all built into WordPressWordPress is web software that can be used to build fully featured, attractive sites websites, blogs and apps. And there’s no learning curve. It’s as easy as following the recipe on a box of cake mix. Anyone can do it.

6 Most Important Factors When Choosing a Law Firm Website Design Firm

As we’ve discussed, the number of law firms sites that they’ve built has very little bearing on the abilities of a law firm website design firm — the bar is set very low. So what are the best selection criteria?

  • They return your calls
  • They are candid
  • They challenge and surprise you, and make you think about your assumptions
  • They don’t specialize in law firm websites; they have a breadth of experience across industries
  • They delve deeply into your content and SEO strategies as much as the design

The Takeaway

The best law firm website design firms are not the ones that have designed the most law firm websites. Look for a design firm that knows how to build your business, not just web pages.





PR for Law Firms is Dying, But Not Fast Enough

PR for Law Firms: Automation Domination

PR for Law Firms: Automation Domination

The relationship-based “earned media” activities that once formed the core of PR for law firms — media placements, media training, contributed stories — have morphed to fit the way we live now. It’s no longer about who your PR manager or agency knows in the media. Instead, it’s about what you know and what you do to get influencers to like and share your content

Instead of vague measurements based on “media impressions” — the estimated number of people who might have seen a story or read an article — our brave new digital world enables us to track the elusive who, what, where, when, why (and how) of marketing.

Media Relations


  • Identify target media and contacts (newspapers, magazines, TV stations)
  • Craft 1:1 pitch emails and follow-up calls; cultivate 1:1 relationships with journalists
  • Track the number of mentions and multiply by circulation/audience share numbers to measure ROI


  • Identify target influencers everywhere they are (blogs, social media, podcasts, YouTube)
  • Friend, follow & comment; craft 1-to-many messages and engage in ongoing conversations/debates
  • Track shares and likes across social media platforms

Media Training


  • Construct soundbites for your key messages
  • Master bridging, hooking and flagging, techniques that will land your talking points and avoid questions you don’t want to answer during a media interview


  • Save your money. Media interviews are basically irrelevant to your marketing efforts unless you are a politician, sports figure or pop culture celebrity.
  • Rehearsed and canned interviews are usually called out for being inauthentic. The new expectation is to speak extemporaneously — or at least look like it

Thought Leadership


  • Significant time, effort and money spent on pitching contributed articles


  • One word: Blog

Speaking Engagements


  • Research conferences
  • Create speaking proposals
  • Pitch your topics and speakers to conference organizers


  • Build your own CLE package; host your own events
  • Create your own YouTube channel
  • Connect with conference organizers through social media



  • Submit to every legal directory available


  • Monitor and manage comments on ratings and reviews sites

Moral of the Story: Friends Don’t Let Friends Hire Law Firm PR Firms


Anatomy of a Law Firm Positioning Statement

Five years ago I wrote a post on this blog about the emptiness of law firm positioning statements, taglines and value propositions. Clearly my critique has not had the desired corrective effect over the intervening years.

How many buzz words are crammed into your firm's positioning statement?

How many buzz words are crammed into your firm’s positioning statement?

Law firm websites are now a bit less visually clunky — just a bit — but the dull, empty prose meant to animate them remains standard.

For example, law firm Taft Stettinius & Hollister LLP. — Taft, to its friends —  anchors its homepage with the grand-sounding but hollow “Innovation and Leadership Since 1885.” I say hollow because no evidence is provided to back up the brag. Wait, that’s not entirely true. While it feels empty, it’s actually filled with zero-calorie buzz words strung together in insubstantial assertions:

We work as one team, driven and committed to helping you succeed. Our attorneys understand that innovative, value-creating solutions help our clients reach their goals. Our collaborative approach, advanced technological resources and depth of services can transform what you expect from your legal team.

The mind reels.

A Law Firm Positioning Statement That Works

By contrast, my friends over at Klein Moynihan Turco LLP have crafted a positioning statement that connects its business practices and priorities with those of its clients.

Internet Lawyers Working on Internet Time

Our clients work in the Internet, mobile and new media worlds, where time is always of the essence. Whether our clients are working on mobile, telemarketing or e-mail marketing campaigns, hosting fantasy sports websites or conducting promotional sweepstakes, we ensure that they are compliant with all applicable laws, rules and regulations and are first to market.

Nailed it.

Three Rules of Thumb

If you’re considering updating your law firm’s positioning statement or crafting a new one, these simple guidelines will help you add depth and context.

Identify and articulate:

  • How your firm differs from/is better than your competitors.
  • Why current and potential clients should care about those differences.
  • What unique expertise your firm possesses.

Give it a shot. Let me know what you come up with.

TCPA Update: Great News for Plaintiff Attorneys (Not So Much for Telemarketers)

These days it REALLY sucks to be an autodialer telephone system vendor or a telemarketer that depends on one.

On July 10, the Federal Communications Commission released the long-awaited Declaratory Ruling and Order intended to clarify its controversial interpretation of the Telephone Consumer Protection Act’s autodialer definition. TCPA compliance is a significant issue for telemarketers because the TCPA allows individuals to file lawsuits and collect damages for receiving unsolicited telemarketing calls, faxes, pre-recorded calls or autodialed calls.

TCPA Compliance Nightmares

Sorry, Wrong Number

While the TCPA’s autodialer definitions were under the FCC’s review, some marketers thought they were in compliance if they manually dialed mobile numbers on autodialer systems. The Declarative Ruling and Order removes that fig leaf.

Internet marketing law expert David Klein of Klein Moynihan Turco has this assessment and caution about the FCC’s latest move:

“The ruling solidifies the FCC’s expansive stance that dialing equipment generally meets the TCPA’s autodialer definition, even if it is not presently used for that purpose. The expansive regime labels practically every telemarketing device on the market as an autodialer, subject to regulation under the TCPA.

“The Commission’s latest interpretation of the TCPA autodialer definition is broader than ever before. Accordingly, we advise that companies involved in telemarketing should take precautions whenever using automated technology to place calls or send texts to consumers, or face potential liability under the TCPA.”

Red Meat for Plaintiff Attorneys?

Without proof of consumers’ prior express written consent to be contacted, the TCPA provides for either actual damages or statutory damages ranging from $500.00 to $1,500.00 per unsolicited call/message. To put that in perspective, a Manhattan federal judge recently ordered Time Warner Cable Inc to pay a Texas woman $229,500 for placing 153 automated calls meant for someone else to her cellphone in less than a year, even after she told it to stop.

Now, with all telemarketing calls essentially in play, plaintiff attorneys might be further emboldened to pursue actions against deep-pocket companies. Lawsuits have been filed across many industries, including against social networking companies (Twitter Inc., GroupMe), sports franchises (Los Angeles Clippers, Buffalo Bills), pharmacies (CVS Pharmacy Inc., Rite Aid Corp.), travel and entertainment companies (Cirque du Soleil Co.), retailers (Best Buy Co., J.C. Penney Co.) and online service providers (29 Prime Inc.).

Given the proliferation of TCPA class actions and uncapped statutory damages, it’s not surprising that TCPA settlement amounts are hitting record highs. For example, in February a federal court in Chicago granted final approval for a class action settlement with Capital One Financial Corp. and affiliates totaling approximately $75.5 million.

What Corporate Counsels Can Do: TCPA Compliance Oversight

In TCPA cases, the burden of proof is on the marketer to show it obtained the necessary prior express written consent before making marketing call(s). It’s up to corporate counsels to ensure that their marketing colleagues 1) design web registration forms to ensure that they clearly and conspicuously include proper disclosure of what respondents are agreeing to and 2) have a systematic way to capture and retain that consent for telemarketing purposes.

But your oversight role doesn’t stop there because consent under TCPA is fluid and ephemeral.

  • A called party may revoke consent at any time and through any reasonable means;
  • Called parties can provide and revoke consent multiple times serially, and it’s the marketer’s responsibility to keep track whether the most recent consent is valid;
  • Marketers cannot restrict how potential called parties opt-out; and
  • If the phone number has been reassigned, consent must be obtained from the current subscriber.

How Marketing Automation Technology Can Help in TCPA Compliance

Online marketing software solutions like LeadiD capture “lead generation events,” creating virtual certificates of authenticity for consumer telemarketing consent.

To be on the safe side, lead certification records should be stored for at least four years — the TCPA’s statute of limitations for filing suit.

Proof of internet-provided written consent includes, but is not limited to:

  • Website pages that contain consumer consent language and fields;
  • An associated screenshot of the consent webpage as seen by the consumer where the phone number was input;
  • A complete data record submitted by the consumer (with time and date stamp), together with the applicable consumer IP address.

Services like LeadiD also offer visual capture/playback of the consumer’s interaction with the registration form in question.

More TCPA Tips to Come

As a marketer myself, I’m personally invested in TCPA compliance, so watch this blog for future posts on news, best practices and resources.

Is It an Ethics Violation for a Law Firm to Exaggerate Its Size?

Zoologists call it “agonistic” behavior — when animals try to look bigger than they are in order to compete. While exaggerated displays are perfectly normal for frill-necked lizards and gray catbirds, does misleading content about a law firm’s size on its website constitute an ethics violation for false advertising?

law firm false advertising

One lawyer or several?

I recently came across the website of the Law Office of Janet McCullar, P.C., an Austin divorce and family law firm. Although only one lawyer is mentioned by name, the site’s copy and images try to tell a different story.

The dissonance starts on the homepage. The first image in the carousel at the top of the page features a group shot of five unidentified women. Beneath the image area is a static copy block with the heading “Austin Divorce Attorneys.” The body copy reads, in part:

“When you meet with one of our attorneys, we will review your situation and make recommendations about strategies we believe will serve you best and will guide your expectations about results.  We will assess your case and let you know whether you need immediate action or a plan for the future.  We will give you guidance on how to best manage your situation, and we will let you know whether we think the time is right to take action, or wait.  We will break down a complex process and let you know whether you have any red flags that need immediate attention.

Janet McCullar is a Board Certified Family Law attorney who is respected nationwide for her skill and experience in representing clients in complex divorce and custody matters for over 20 years.”

Likewise, the “Attorneys” — plural — tab in the homepage navigation bar links to a single attorney bio, McCullar’s.

Is it all right to refer to “one of our attorneys” when there is only one?

I get it. The other women pictured on the site could be administrative staff and/or paraprofessionals. The clearer — and arguably the more ethical — approach would have been to write the copy in the first person, making it clear that “we” refers to McCullar and her team. As it is, the juxtaposition of group photos and copy written in the first person plural might mislead.

Don’t risk it

Even if it passes your state bar’s advertising review, remember that even a whiff of exaggeration can alienate prospective clients and sully your reputation with peers. Tell it like it is. Whether there used to be more attorneys or you expect to be adding more soon, your website copy should accurately reflect your firm’s current composition. And if you’re going to promote your firm using your colleagues’/employees’ images, show them — and prospective clients — the courtesy of identifying them by name and role.






Is Alternative Small Business Lending Ripe For Regulation (and Lawsuits)?

A blogger with alternative small business lending company Kabbage recently pitched me to write a post featuring her company. I’d heard of Kabbage before and had it in my “future topics” list, so I figured this was the nudge I needed to start poking around.

Alternative Small Business LendingAs it turns out, Kabbage doesn’t need my help to build top of mind awareness or attract traffic to its website. It’s already gotten a big write-up in Forbes, which reported that Kabbage is an established leader in the emerging space and well on its way to a record year. Bank lending to small businesses froze during the Great Recession and hasn’t recovered, especially for amounts in the $25,000 to $55,000 range — the sweet spot for this new breed of alternative lenders. Also, alternative small business lenders decide on applications within minutes, not weeks (like traditional banks). Not surprisingly, the field is quickly crowding with competitors like OnDeck, Prosper, CAN Capital and spinoffs from companies like Amazon, PayPal and Square.

As Competition Grows, Will Scrutiny Also ?

A few things in the Forbes article struck me as potential problems/opportunities for law firms — depending on whether you’re a plaintiff’s or civil defense attorney. Although alternative small business loans are easier to obtain than small business loans from banks, they come at a steep price. On an annualized basis, the interest rate on alternative small business loans ranges from 40% to 60%.

“Some of these guys make used-car salesmen look good,” says [Jay Goltz, an entrepreneur and small-business advocate in Chicago], who calculated that one lender was charging as much as 150%. “I don’t know how any business could grow fast enough to pay off that kind of loan.”

As the Forbes article points out, “with all of that credit available, many businesses have gotten in over their heads because they didn’t realize the full price they were agreeing to pay. The fact that the loans are for short terms can disguise how expensive they are.

As competition grows in the alternative small business lending industry, it will be interesting to see what tactics competitors use to build and hold market share — like high-pressure sales, looser lending standards, derivative markets — and whether state and federal regulators decide to intervene to prevent another credit bubble from forming.