It’s hard to miss the hundreds of billboards and television advertisements for personal injury lawyers in Birmingham. Some are memorable for their over-the-top nature. Mike Slocumb’s TV spots, for example, feature him shooting a dollar bill with a deer’s head, which then explodes into smaller bills, as a visual representation of how he “ain’t settling for no small dough” but is “hunting for the big bucks” for his clients. Others are known for their ubiquity: at a recent panel appearance, Alexander Shunnarah drew rapturous applause and laughter when he announced that his firm has put up over 2,500 billboard advertisements.
Signs and ads for personal injury firms are so common because the field is lucrative enough to support expensive advertising campaigns, said James Wettermark, senior founding partner of Wettermark & Keith. Whereas in other areas of law such as divorce cases or criminal law, the profit margins are much thinner, “in the personal injury field, if you’re good at it, there’s the opportunity to make a lot of money,” he said.
Personal injury lawyers are usually paid through a contingency fee, meaning that they are not paid unless they win the case or negotiate a settlement. If they do successfully settle or win damages, however, they receive a portion of the money awarded to their client. Wettermark said that while the percentage that the attorney collects varies from case to case (for example, lawyers take a higher percentage from cases that they bring to court due to the extra work it requires), the general rule is that personal injury lawyers are paid about a third of the money they win on behalf of their client.
“In 38 years, I have never had a client pay me a single penny out of their pocket. The only way I get paid is if I win the case, and that’s the way it should be, because it joins the client’s and my interests,” Wettermark said. “It gives me more incentive to work harder, because if I make more money for you, I make more money for me.”
Billboards and Stereotypes
Wettermark explained that attorneys were not allowed to advertise for many years anywhere in the country. In 1977, however, the Supreme Court of the United States ruled in the case of Bates v. State Bar of Arizona that legal advertising was protected by the First Amendment, though state bar associations across the nation still impose their own rules on marketing by attorneys.
“Before the Bates decision, the biggest form of advertising was our business cards. We used to get our business the old-fashioned way,” he said. “You represent a client, you do a good job for him, and he’d tell his buddies. And after you handle a few more, the lawyers on the other side of the case would say, ‘Hey, this guy’s pretty good,’ and then they start referring cases to you. And then slowly over time, you would develop a referral practice of lawyers who thought you were good; you would develop a referral practice from your former clients.”
The advent of advertising has changed the personal injury field in ways large and small, Wettermark said. Because their profile is much higher, personal injury firms get many more cases than they did before the Bates decision. However, he noted, the percentage of cases that the firms settle is higher than it was before advertising.
“When you advertise, you get lots and lots of little cases that aren’t suitable for court. If you’re in a car wreck and you have $3,000 worth of damages, it doesn’t make sense to file a lawsuit,” he explained.
Most firms in the personal injury field settle 90 to 95 percent of their cases, said Leon Ashford, a managing partner at Hare, Wynn, Newell & Newton, a plaintiff’s firm that has operated in Birmingham for over 100 years. The exception, he said, is medical malpractice cases, about half of which, he estimated, lawyers take to court.
However, while marketing brought increased business to the field, the practice also brought with it a stigma. Wettermark said that when he started his firm in 2003, the founding partners were initially hesitant to advertise their services.
“There’s a price to pay for advertising: there is a stigma that is attached to lawyers who advertise. You’ve heard the term ‘ambulance chasers.’ People make fun of you. And historically the law firms that advertised weren’t the law firms that were held in high esteem by their colleagues,” he said. Things have changed, however, he said, noting that “we were really gratified by the response from the legal profession.” Today a personal injury firm needs to advertise to compete with the other firms who do have a robust presence on television and billboards, he added.
Ashford said that his firm was initially hesitant to begin airing TV advertisements due to fears that the lingering stigma surrounding advertising attorneys would negatively affect their brand. He explained that Hare Wynn had built a solid business solely on referrals from other lawyers and were concerned that the negative stereotypes about advertising would make other lawyers reluctant to refer clients to them. But the success of firms that advertised in the past two decades convinced the partners to begin airing spots in Jefferson County and their other markets, he said.
“We Are Actually Now a Brand”
Kami-Con, a three day event which brings together fans of Japanese pop culture, invites voice actors and prominent online figures to speak at their annual convention held at the Birmingham-Jefferson Convention Complex. This year’s convention, held Jan. 27 to 29, featured the stars of the Cartoon Network show Steven Universe and the “YouTube storyteller” known as Mr. Creepypasta, who narrates horror stories on his popular video channel.
Among the cosplayers and the musical acts, there was a speaker who, on paper, cut a much more mundane figure. A local entrepreneur and attorney, he started his own firm in Birmingham, which in barely a decade and a half has spread to 19 cities over five states. But Alexander Shunnarah is best known not for his professional success but for his relentless and ubiquitous advertising and his larger-than-life persona. That’s what drew a full crowd into the BJCC room dedicated to his panel.
At the Kami-Con panel, Shunnarah (whose firm declined to speak with Weld for this story) explained in detail the strategy behind his pervasive billboards. He said that when he first considered using billboards to advertise his fledgling law firm, “all the experts” discouraged him from using that medium.
Shunnarah said that billboards are looked down upon because they do not generate an immediate response. But he found them useful because of what he called a “ping” factor — by making his image omnipresent, he said, they caused people to think of his firm first when they found themselves needing a personal injury lawyer.
“Without you even knowing it, every time you go by a billboard, it ‘pings’ your brain. After about a million ‘pings,’ without you even knowing it, it’s kind of embedded in your mind. And that is kind of what has happened with the Alexander Shunnarah billboards. We started with one, and … we have 2,500 billboards now, and we’re going to be buying some more soon,” he said, drawing laughter and applause.
“What it has done, it is hard to believe. We are actually now a brand,” he added. His hundreds of billboards in Alabama alone have made him into something of an unlikely celebrity; a search of “Alexander Shunnarah” on Facebook reveals dozens of Birmingham residents riffing on the ubiquity of the advertisements, or posting about how seeing one of his signs lets them know they are back in Alabama after trips out of state. The Ostrich, a satirist based in Alabama, has featured Shunnarah repeatedly in his comedy columns and photos, perhaps most memorably in a piece that posited that Shunnarah’s billboards, described as “spreading like kudzu,” are really part of a Big Brother-like surveillance system.
The Facebook page “Alexander Shunnarah Billboards,” which posts photoshopped images and videos gently joking about the firm’s ever-present ads, received a shout-out from the lawyer himself at his Kami-Con panel. Shunnarah led the audience in a round of applause for the artist behind the page, Kelly Coberly, who was in attendance at the event. Shunnarah said he appreciates her work and revealed that he has collaborated with Coberly on some of the pieces.
Though he might be the first lawyer in America to utilize parodies of his public image as a form of public relations, Shunnarah’s firm is far from the only personal injury firm working to create a distinct brand. Mike Slocumb’s ads portray him as “the Alabama Hammer,” a force for justice who will stand up to bullies and fight for the little guy. (Slocumb’s firm also did not respond to Weld’s request for comment.)
Wettermark & Keith’s ads, in contrast, are much more restrained. Where Shunnarah’s ads see him flying around as a superhero and Slocumb’s feature him shooting money with animal heads — among other things — Wettermark & Keith’s TV spots generally feature one of the firm’s co-founders discussing the need for experienced lawyers or explaining that their firm will make house calls if the client cannot travel to their office. Wettermark says that his firm seeks to convey an impression of professionalism as well as concern for the client in their marketing.
Ashford said that Hare Wynn crafts its television spots to be relatively subdued precisely because doing so sets them apart in a field characterized by sometimes extravagant ads. The firm’s Jefferson County pieces usually feature a voiceover by one of the firm’s attorneys referencing the firm’s 100 years of experience over images of a city skyline or cars in motion. Ashford said the ads are intended to convey both professionalism and experience in order to show that “we are anything but the concept that some people have of TV advertising attorneys.”
Rules of Professional Conduct
Rule 7.1 of the Alabama Rules of Professional Conduct, the set of guidelines that the Alabama Bar Association requires its members abide by, proclaims that a “lawyer shall not make or cause to be made a false or misleading communication about the lawyer or the lawyer’s services.” The rules clarify that a communication is false or misleading not only if it contains “a material misrepresentation of fact or law” but also if it is “likely to create an unjustified expectation about results the lawyer can achieve.”
A comment appended to the end of the rule clarifies that the prohibition of statements that may create unjustified expectations “would ordinarily preclude advertisements about results obtained on behalf of a client, such as the amount of a damage award or the lawyer’s record in obtaining favorable verdicts, and advertisements containing client endorsements.
“Such information may create the unjustified expectation that similar results can be obtained for others without reference to the specific factual and legal circumstances,” the comment concludes. These rules apply to all communications put out by a firm, including websites, said Mark Moody, assistant general counsel to the Alabama Bar Association.
However, the state has been pulling away from treating these rules as blanket prohibitions, said Professor John Carroll, who teaches ethics at Samford University’s Cumberland School of Law. For example, a 2003 ethics opinion released by the Alabama Bar’s Office of General Counsel held that testimonials were permissible in advertisements as long as a lengthy disclaimer noting that every case is different and that previous recoveries “are not an indication of future results” is included.
Wettermark said that every advertisement must be sent to the Alabama State Bar for review before it can be run. Occasionally, he added, the rules affect the firm’s marketing strategy in unexpected ways. For example, Rule 7.3 mandates that “no communication concerning a lawyer’s services shall be published or broadcast, unless it contains the following language, which shall be clearly legible or audible: ‘No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.’” Wettermark said that including this language is not a problem in a television advertisement or a billboard, where the disclaimer is usually appended at the bottom of the advertisement. However, he explained, his firm decided against creating radio advertisements because having the disclaimer spoken at the end of the spots in compliance with the rule would make the ads clunky and ineffective.
Wettermark said that for the most part he felt that Alabama’s rules regarding legal advertising were fair and appropriate. “The Bar Association serves a really important function. … The bar sets what I consider very minimal standards that are trying to maintain some measure of professionalism in advertising,” he said. “There’s little things that you have to pay great attention to, but other than that we’ve been able to market as much as we wanted to and in the manner we wanted to.”
Many of the personal injury firms active in Birmingham also have branches in other states, another effect of the relatively lucrative nature of the field. Working in more than one state creates its own headaches, Ashford noted, as a firm in multiple states needs to tailor its communications to be in keeping with the rules of each state.
“Client testimonials, for example, are big in Alabama but are not allowed in Arkansas,” he explained, so while the firm’s Jefferson County advertisements can use client endorsements, Hare, Wynn, Newell & Newton has to keep them off its website.
Both Ashford and Wettermark said that upholding the dignity of the profession is a vital consideration in all their firms’ advertisements and communications.
“We don’t want to do anything that diminishes ourselves as individuals or our profession as a whole, so that’s why we try to adhere to what we can consider a high level of quality on our ads,” Wettermark said. “At some point, the advertising can make us lawyers look like money-grubbers. And I think when advertising reaches that level, we are doing a disservice to the profession.”