Quick, answer this question: “Hey, where did everybody go?” If you grew up in the Philly/South Jersey area in the ‘70s and ‘80s, you just answered “Betsons!” out loud, even though the store closed decades ago and you probably never bought a couch there. Or try this one: “If you’ve got a passion for fashion and you’ve got a craving for saving . . .” We’ll wait while you swing on down to Ideal. Nobody sat down and memorized those things. They just got in there and never left. That’s not an accident. That’s the whole point of advertising.
Which brings us to a new paper from DRI’s Center for Law and Public Policy, “Legal Advertising and Its Potential Effect on Jury Bias and Verdicts” (DRI 2026), available here. Full disclosure, we had no part in the paper, though our bloggers are frequent speakers at and attendees of DRI meetings (as are many of our readers). We’ve written about plaintiff lawyer advertising before, see here, here, and here. What the DRI paper adds is a sustained focus on the audience that matters most once a case is filed — the jury pool. Much of the paper is background, interesting and well-sourced, so we’ll hit the highlights and spend our time on the proposed solutions.
The paper’s premise sounds obvious once you say it out loud. Advertising isn’t really about selling. It’s about persuasion, getting the audience “to internalize the persuasive argument and adopt this new attitude as part of their core belief system,” which then influences decisions made long after the ad has aired. Id. at 6. The proof? The jingle you can recite years after the product left the shelves. Id. Plaintiff lawyer ads work the same way. They have “plainly moved from touting a firm’s services or results to persuasion about issues like liability and damages and products (i.e., ‘x’ causes cancer).” Id. at 13. The vocabulary is chosen on purpose. “Danger” and “substantial compensation” show up again and again, and plaintiff lawyers “throw the word ‘justice’ around as if they were the embodiment of the most altruistic form of the word while all others must therefore be ‘unjust.’” Id. at 14. Those are words built to be recalled later, in the jury room. And there’s no escaping them. In 2023, legal ads ran on television at a rate of “one ad every two seconds.” Id. at 12.
In the drug and medical device landscape, the most troubling consequence isn’t even in the courtroom. It’s in the medicine cabinet. Ads “masquerading as ‘medical alerts’ or ‘government warnings’” lead patients to stop taking prescribed medicines without ever calling their doctor. Id. at 14. After lawsuit ads about blood thinners, for example, seven people reportedly died, 33 suffered strokes, and 24 others had serious complications, and those are just the reported events. Id. Manufacturer ads must meet FDA fair balance requirements and still run through a learned intermediary. Plaintiff lawyer ads face none of that, id., and a scared patient can act on them alone.
The ads also fill the mass tort inventory. The paper quotes a federal MDL judge who observed that the MDL process creates “incentives for the filing of cases that otherwise would not be filed if they had to stand on their own merit.” Id. at 15. Taxotere is the case study. Ads drew in more than 15,000 claims, many of which collapsed for lack of injury proof, product identification, or timeliness. Id. at 15-16. When plaintiffs then argued they didn’t know they had a claim until they saw a lawyer ad, the Fifth Circuit wasn’t buying it. Id. at 17-18. Ads meant to find plaintiffs can end up sinking them.
But the heart of the paper, and the part we found most interesting, is the argument that some of these ads aren’t really advertising at all. They’re jury persuasion aimed at future jurors, and the lawyers running them know it. Look at the timing. According to an Institute for Legal Reform analysis, “a significant driver of spending on Roundup lawsuit advertisements is the proximity of a trial or large verdict.” Id. at 21. Before one West Coast Roundup trial, plaintiffs’ lawyers ran 2,187 ads in the local market in four months, including one telling viewers a “federal jury unanimously found” Roundup was a “substantial cause of cancer.” Id. And geotargeted digital ads can be aimed right at the county where the venire will be drawn. Id.
Then look at the results. Before a St. Louis talc trial, more than 700 talc-and-cancer ads ran in the area in a single month. They were even playing on the radio of the shuttle bringing prospective jurors to the courthouse. Id. at 25. You cannot make this stuff up. Seventy-five percent of the prospective jurors interviewed had already concluded talc caused cancer, and one told defense counsel: “I want you to prove that it doesn’t give me cancer.” Id. So much for the plaintiff’s burden of proof. The verdict topped $70 million. Id. at 26. Verdict numbers stick too. Ads touting big recoveries “desensitize the public to large numbers” and make “astronomical” verdicts “seem more mainstream.” Id. at 22. In a 2024 Philadelphia Roundup trial, a prospective juror said she would draw on the “very large settlements” she’d read about in The Inquirer in deciding her own verdict. Id. at 27. That’s the earworm, coming out of a juror’s own mouth.
In case anyone thinks this is a happy accident, the paper quotes a speaker at the Mass Torts Made Perfect conference (no defense lawyers allowed): “The litigation doesn’t wag the media tail—the media tail wags the litigation.” Id. at 22. And: “If you don’t control the narrative outside the courtroom, you’ve already lost inside the courtroom.” Id. at 23. We couldn’t have said it better. Actually, we wouldn’t have said it at all, which is sort of the point. The irony is that plaintiffs’ lawyers were the first to complain that advertising (insurance industry tort-reform ads) biased juries, and courts agreed that “[l]iberal voir dire is the best means to this end.” Id. at 11. What’s good for the goose is good for the gander.
That brings us to the paper’s solutions section. It starts with vetting the plaintiff. At deposition, ask about any ad the plaintiff saw, how often, where, and what opinions it produced. Id. at 28. Courts have found that whether a plaintiff saw an attorney ad before suing is “probative of her credibility regarding her injuries.” Id. The paper then offers a detailed script that follows the plaintiff from the ad to the phone call. Who answered? What organization were they with? Did they explain what the “proper responses” should be? When were you referred to a lawyer? Id. This is a fine line to walk. Questions about the ad itself (what the plaintiff saw, when, what they thought, and what they did next) should be fair game. But once you get into the substance of the intake call, a good plaintiff’s lawyer is going to object on privilege grounds. There may be good arguments that a call with a lead generator isn’t privileged, but expect the fight, decide in advance which questions are worth having it over, and make a clean record.
Next is vetting the jury, and voir dire is key. The paper argues that defendants deserve the same latitude plaintiffs get to probe outside influences, including questionnaires and individual questioning. Id. at 28-29. Here, the deposition work pays off twice. Testimony that the plaintiff internalized an ad’s causation message, gives a judge a concrete reason to believe the same ads reached the venire. That’s a far better argument than “there are a lot of ads on TV.” Even so, we won’t pretend expanded voir dire is easy to get. Courts are “generally reluctant” to change venue and rely instead on voir dire to root out bias, id. at 30, which is a bit circular given the studies showing voir dire doesn’t reliably uncover it, id. at 24. Educating the bench, with ad-buy data, subpoenaed media schedules, and the plaintiff’s own testimony, is part of the job.
Finally, regulation. The paper walks through the FTC’s 2019 warning letters and the statutes in Tennessee, West Virginia, Kansas, Florida, Texas, and Indiana that bar ads posing as “medical alerts,” using government logos, or announcing a “recall” that never happened, and that require disclosures such as a warning not to stop a prescribed medication without talking to a doctor. Id. at 30-32. The Fourth Circuit upheld West Virginia’s version in Recht v. Morrisey, 32 F.4th 398 (4th Cir. 2022), and Texas now requires lawyers who advertise verdicts to disclose if they were reduced, reversed, or never collected. Id. at 32-33. These are good steps, especially for patient safety. But they target misleading advertising, and that’s the gap. An ad doesn’t need a fake FDA logo to plant “danger,” “justice,” and “substantial compensation” in a juror’s head. An ad that accurately reports a jury found a product caused cancer and awarded hundreds of millions may break none of these rules. Yet, run in the trial county a few weeks before the next trial, it may do more damage to a fair trial than any fake medical alert. The rules police deception. They don’t, and probably can’t, police persuasion.
So, we’re left where the paper ends — two constitutional rights pulling in opposite directions, free speech and a fair jury trial. Id. at 35. Attorney advertising is protected commercial speech, and truthful ads aren’t going away. Given how well they work, they’ll only multiply. That puts the burden on defense counsel to vet the plaintiff, vet the jury, and educate the bench, and this paper is a valuable roadmap for doing all three. Read the whole thing.
Because the jingle is already stuck in the jury pool’s head. Our job is to make sure that, when the jury goes back to deliberate, it’s the evidence they’re humming, and not the earworm.
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