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Guest Opinion: The Emergence of Mass Tort Marketing

1 Jul, 2013 By: Robert B. Yallen Response

There is a famous Japanese proverb that says, “Only lawyers and painters can turn white to black.” There are always at least two ways to interpret any adage. Taking the high road here, I’ll take this one to mean that lawyers are motivated to “turn white into black” in order to best serve the people, and ultimately, to defend and maintain law and order.

The Latin adage that “Man is a wolf to man,” provides one scenario of what civilization may have become in the absence of lawyers. In this sense, lawyers became agents of fairness and order in society, and the use of DRTV by legal advertisers is a key channel to keep the wolves at bay.

In the Beginning

Jacoby & Meyers became the first law firm to utilize television 36 years ago. This ability was cleared by Bates v. State Bar of Arizona, where the U.S. Supreme Court upheld the right of lawyers to advertise their services. In holding that it was protected commercial speech under the First Amendment, the Court rebuffed established tradition against legal advertising, declaring it an antiquated rule of etiquette.

Initially, legal advertising focused on personal injury, family law and bankruptcy cases, but usually targeted a less-affluent, less-educated consumer, assuming that more-sophisticated plaintiffs either had an attorney or would seek a referral from their peers.

Today, law firms use the persuasive power and efficient reach of television for a wide variety of legal issues, including the mass tort sector.

The New Mass Tort Marketer

Law firms that focus on mass tort litigation have changed attorney advertising in two distinct ways. First, the potential case value is significantly higher than the cases that personal injury attorneys traditionally handle. This mean law firms are willing to spend more advertising dollars to acquire them. Second, target consumers have expanded beyond less-affluent, less-educated consumers to more diverse profiles.

Take, for example, the contrasting profiles of prospects of class action suits against the pharmaceutical Actos (for Type-2 diabetes), and Yasmin, a women’s contraceptive. Per MRI, the basic Actos user is a 62-year-old, retired grandfather who watches cable news. In contrast, for Yasmin, the typical user is a 31-year-old married Hispanic working mother who watches Cartoon Network, MTV, and The Learning Channel (TLC).

Clearly, these two groups require distinct approaches for brand identity development, media selection and creative messaging. Instead, the many legal advertisers don’t distinguish themselves from their competition, and their messaging gets lost in the clutter.

Evolution of Legal Advertisers

There are four basic types of legal advertisers. One is the law firm advertising on its own behalf. While self-promotion enables a firm to become a standalone brand, many lawyers believe this exposure can compromise their ability to receive impartial treatment in the litigation process.

To counter this, another legal advertiser evolved: marketing services firms that generate cases and transfer them to another firm. Recipients might be marketing-firm partners or independent law firms associated with the case.

The third type is comprised of non-law firms, serving as lead aggregators who sell potential cases to law firms. Finally, there are law firm consortiums that pool resources and split the leads proportionally.

Legal Media Landscape and Trends

Legal category budgets have grown significantly, per Nielsen media data for 2010-12, jumping 25 percent to $878 million. Television advertising has maintained its dominant share, holding at approximately 75 percent of budgets. Within TV, national cable (which allows for more precise targeting), showed the largest increase, doubling from 2010-12.

Within TV buying, the advent of proprietary, unwired networks has provided an additional level of efficiency for legal advertisers. The creation of local media aggregation platforms delivers targeted households at deeply discounted CPMs within customized marketing footprints. Additionally, performance-based networks allow the marketer to generate incremental leads at superior cost-per metrics. ■

About the Author: Robert B. Yallen

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