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When Does Advertising Turn Into Jury Tainting?

On Behalf of | Nov 3, 2016 | Jury

For many lawyers, the process of “picking the jury” is the most stressful, but the most important, part of a trial. Ensuring that your client has an unbiased jury is difficult, even for the most experienced litigator. It is not surprising that many lawyers find it difficult to lead a discussion on a variety of different topics with 20 to 40 strangers and, at the same time, analyze their strengths and weaknesses as potential jurors. As attorneys, we often wonder if someone is holding back or not telling us the entire truth. This is understandable, because many potential jurors can find our questions intrusive or related to personal topics. I can assure you that there is always a reason for the question being asked. In short, attorneys are trying to determine if you would be fair, even in light of each individual’s personal bias.

I recently read an article about how many Georgia insurance defense firms are upset with a certain TV ad. The defense attorneys believe that the ad is tainting jury pools in their area. As many of you know, advertising has become common with many personal injury law firms. If a personal injury law firm is not marketing in today’s society, I do not believe that the firm will be able to keep its doors open. I wish we could rewind to the 1980s when your reputation as a good lawyer was the primary source of work…no more billboards, commercials, social media accounts, etc.. This sentiment is shared by many of my competitors. Unfortunately, we must advertise to remain competitive. The First Amendment of the United States Constitution protects our ability to advertise. However, the First Amendment allows states to ban commercial speech that is false or misleading. If the speech is not false or misleading, then a state may only regulate or ban the speech if it asserts a substantial interest in support of its regulation and demonstrates that the restriction directly and materially advances that interest, and shows that the regulation is narrowly drawn.

Although permissible under the First Amendment, I can see how so many others see our advertisements as a potential “tainting” of prospective jurors. Florida and Georgia have substantially similar laws regarding personal injury claims. You probably didn’t know, but injured claimants cannot sue the at-fault driver’s insurance company. We are forced to sue the at-fault driver as an individual. This is called the Non-Joinder Statute. A jury is never allowed to know whether the at-fault driver has insurance or how much insurance they carry.

In the Georgia TV ad that I read about, the attorney tells viewers he is “going to tell you something the insurance companies don’t want you to know. In almost all of our car crash cases, the person who caused the crash has insurance but the jury is never allowed to know. I don’t think that’s fair. You might feel sorry for the at-fault driver because you think they will have to pay, but the insurance company pays for that driver’s lawyers, court costs and the verdict. Spread the word. Now you know.”

Georgia defense lawyers contend the ad could constitute jury tampering, as well as conduct intended to disrupt a tribunal. They are circulating an email pointing to Georgia statutes that generally ban the testimony. The founder of this particular law firm told the Daily Report that the ad “only tells the truth” and insurance defense lawyers “would like to violate our First Amendment right to free speech.” He went on to state via email “The insurance industry has spent millions and millions of dollars buying influence and having laws enacted that are anti-consumer” and “spend hundreds of millions a year in TV ads with false promises and lies.” via email.

What do you think?



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