How to Run the Business Side of Personal Injury Practice

Tenth in a Series of Quarterly Columns
 *****
 
When Business and Politics Collide:
Origins of the Tort Wars
 
by
William L. Speizman
America's #1 Business Consultant to the Plaintiffs' Bar
 
 

In my last column, I recounted the early history of the Tort Wars. One thing I purposely left out was a discussion of the “secret weapon” the insurance companies and corporations have used against personal injury attorneys since the inception of hostilities.

In this column, I will identify that “secret weapon,” discuss its use by the other side and point out the grave consequences of the plaintiffs bar’s failure to give the “secret weapon” its due.

Secret Weapons vs. “Secret Weapons”

Secret Weapons. Secret weapons do exist. The German attack in the West in May 1940 succeeded in part because of a secret weapon, the shaped charge.

One obstacle to victory the Germans faced was the border fortresses of the Belgians, particularly Europe’s strongest, most impenetrable fort Eben-Emael. German engineers developed a shaped charge to blow its top off. In the early hours of the invasion, German troops equipped with these shaped charges landed on the roof of Eben-Emael. They placed and detonated the explosives. Combat footage of the event shows where chunks of the roof had been blown out allowing German troops to enter the fortress.

Secret Weapons.” “Secret weapons,” on the other hand, aren’t secret at all. They are weapons possessed by one side which the other side either chooses to ignore or chooses to learn less about than it should.

For example, the great “secret weapon” in the West in 1940 was the tank. The pre-war German general staff took very seriously World War I’s reintroduction of mobile armor to the battlefield. They read diligently the writings of Britain’s J.F.C. Fuller, the leading theorist of mobile armored warfare doctrine. Thus, when Germany attacked on May 10, 1940, they attacked with combined arms: massed tanks, mechanized infantry and artillery and close air support.

Perhaps because they had been on the winning side in World War I, the French were not as concerned with the new military technology or with discovering the most efficacious way to use it. They maintained an antiquated notion that tanks were mobile artillery to be used in support of infantry. Rather than massing their armor, the French disbursed their tanks among their infantry units.

The German use of armor to defeat France in six weeks was a “secret weapon.” The French knew the Germans had large armored forces. However, the French never took seriously the new doctrine of deep strategic penetration, and they never developed the integrated radio command and control infrastructure which allowed the Germans to coordinate the swift maneuvering of their all-arms forces.

The “Secret Weapon” of the Pro-Injustice Forces

The “Secret Weapon” of your adversaries is public relations or, as it’s commonly known, PR. In fact, I would argue that public relations has been the tip of the spear in the attacks the other side has mounted on trial lawyers and civil justice.

It is PR that has laid the groundwork for the election of public officials who favor the legislative agendas of insurance companies and corporations. It is PR that has been the means by which insurance companies and corporations have captured, a priori, the hearts and minds of jurors before whom you must try your cases. “Frivolous lawsuits,” “malpractice crises,” “litigious society” and “trial lawyers!!!” are all spawn of Pro-Injustice PR campaigns.

PR is the “Secret Weapon” of the Pro-Injustice forces because trial lawyers have either ignored it or not learned as much about it and how to use it as they should.

Some Facts about Public Relations and How the Pro-Injustice Forces Use It

1. In the course of their everyday business activities, top executives of insurance companies and corporations frequently make use of public relations. It is an integral part of their efforts to gain and retain customers. As a result, they are comfortable employing it in contested political situations and confident that it can bear fruit.

2. Experience has taught these executives that positive results from public relations campaigns may be slow to develop and take time to manifest. They have learned to be patient and wait for positive outcomes from their public relations efforts.

3. These top officials of insurance companies and corporations are willing and able to spend millions of dollars on PR.

4. Unfortunately, when it comes to getting people to think what they want them to think, believe what they want them to believe and do what they want them to do, some surrogates among the Pro-Injustice forces are willing to use some of the same techniques as the Nazis such as repeating lies over and over and over again until they achieve the warrant of fact in the minds of some segments of the public.

5. Key players on the Pro-Injustice side have taken note that members of the plaintiffs bar don’t understand public relations, don’t trust it, and don’t know how to wield it effectively. These players don’t expect that you will ever acquire those capabilities.

What Members of the Plaintiffs Bar Need to Do

1. Bring public relations into your comfort zone. Your opponents employ public relations in the course of their routine business activities. You don’t. They see PR as a separate, powerful tool for defending what they have and acquiring what they want. You don’t. You can’t level the playing field until you learn more about public relations, how it works, how it can be used and the circumstances under which it can help you attain your goals. You should engage public relations counsel who can provide you with top-notch training in the use of this essential Tort Wars weapons system. (I am not a PR person so I am not the one.)

2. Bite the bullet. It may turn out that to mount an effective public relations campaign, you need one or more spokespeople to be the face of the trial lawyers of Mississippi. The need for such a front person or front people has presented a stumbling block to the effective use of public relations by trial lawyers, at least from what I’ve observed.

Obviously, attorneys who represent you will get more public exposure than those who don’t. Thereby, they may gain a competitive advantage. But you must make a choice between the fabled goose being ground up for burgers or the chance of having to forego some of its brilliant eggs which might otherwise be yours. One suggestion for avoiding this conflict is to recruit, train and utilize retired Association members as the “face of Mississippi’s trial lawyers.”

3. Be careful what you say, write or do. Never appear in public or on television or on the radio and never publish anything dealing with politically charged issues without having someone with knowledge of public relations prepare you for your appearance or review what you have written.

I remember tuning into ABC’s Nightline several years ago to see a discussion of the medical malpractice “crisis.” Three guests appeared on the program: the CEO of a medical malpractice insurance company, the President-Elect of the American Medical Association and a physician-lawyer from New York who was a plaintiffs medical malpractice attorney.

It was clear that the CEO and the AMA President-Elect had not only received public relations training, they had been painstakingly prepared for their appearance. The trial lawyer? He was brash, abrasive and patronizing. He winged it. By the way, how was it that the insurance industry and the medical profession got to put their best feet forward while the organized plaintiffs bar seemed to have played no role in selecting who would be the face of America’s trial lawyers?

4. Get involved in your communities. A college roommate of mine was on the Democratic National Committee for eight years. Whenever the DNC met west of the Rockies, I would fly out and spend a few days with Bob. One of our get-togethers was at the first DNC meeting after Hurricane Katrina. Howard Dean was still Chairman. He told this story.

In the aftermath of the hurricane, the DNC allowed young staffers to travel to New Orleans to assist in the recovery. As it turned out, some of the young liberal Democrats got paired up on work details with some young volunteers from a very conservative organization. Howard Dean related that the conservative volunteers were shocked that the young Democrats were volunteering in New Orleans. The reaction of the young conservatives, as related to Dr. Dean by the young Democrats, was, “You’re different.”

Different from what? Different from the stereotype of mean-spirited, selfish, anti-American liberals that had been drummed into their heads.

One of the greatest strengths of the Pro-Injustice forces is that they have made demons of “trial lawyers.” But you can transform it into one of their greatest weaknesses. As the Mississippi Association for Justice, you or perhaps you and your spouses and children can get involved in community projects--or begin some of your own. If you meet people and work side-by-side with them, I can virtually guarantee that you will get “You’re different” comments. You can answer, “No I’m not. Why do you think that?” They can have only one answer to your question, “It’s what I’ve been told.” Knowing you and working with you on community projects gravely imperils the credibility of those who have been lying to them and characterizing you as a demon and a monster.

This too is PR--public relations down in the trenches where some of the very best PR work gets done.

Conclusion

The Tort Wars still rage. America’s Advocates for Injustice have been pounding trial lawyers for years with their “Secret Weapon”. It is vital that you combine public relations with your support of candidates and lobbying efforts to achieve an all-arms defense of the Seventh Amendment and civil justice in America.

Copyright 2010 William L. Speizman
All Rights Reserved