By Travis Luther, MA | President, Law Father
This article was recently written for and published in Trial Talk, the bi-monthly publication of the Colorado Trial Lawyer Association.
The gap between the wealthy and the poor is growing (Organization for Economic Cooperation and Development 2011). Over the last 20 years, U.S. economists and policy makers have created significant literature chronicling the decline of the middle class (Watson 2010). Unfortunately, this decline is not because the middle-class have grown wealthier, but rather that they have slipped down to income and wealth levels in which they are now economically categorized as “lower-class”. The lower-class is in fact the fastest growing income bracket in America. Explanations for this growth are abundant and include the loss of U.S. based manufacturing jobs, consecutive recessions, and the burst of the housing bubble (Censky 2011). Both the U.S. Census Bureau and the The National Center for Public Policy and Higher Education expect the growth of the lower class to continue for at least the next 15 years. Both agencies explain this growth, in part, as a consequence of a rapidly growing Hispanic/Latino population, predicted to have an overall lower educational obtainment level (and thus, lower income levels) than that of Asian-Americans, Whites, and African-Americans. Colorado has one of the highest Hispanic populations per capita (about 21% according to the 2010 U.S. Census) in the country. This means that whatever the actual long-term consequences of this trend, Colorado will be one of the first states to face them. (As an interesting side note, an ABA survey found that “those who had the most favorable opinion of lawyers tended to be female; African-American or Hispanic; with an annual family income of less than $20,000; and between the ages of 18 and 29 (Paxson 2002:193).”)
In sociology, we often examine the correlation between one’s economic class and the amount of one’s Social Capital. Social Capital is a concept that gained traction with sociologists through the 1980s and 1990s, largely from the work of French sociologist Pierre Bourdieu. Rather than solely examining the role of economic capital in explaining one’s social status, Bourdieu pushed for a more thorough observance that included analyzing one’s social capital. Bourdieu (1983) defined social capital as “the aggregate of the actual or potential resources which are linked to possession of a durable network of more or less institutionalized relationships of mutual acquaintance and recognition.” Simply put, people and institutions are also resources that one can draw from to improve one’s social status. Much like money, the more friends, acquaintances, and professional ties one has, the more likely they are to be financially successful. When someone from the middle class finds herself facing difficult financial challenges, she may be able to draw on her social capital to slow or stop a slip into the lower-class. This draw can come in many forms. It may be a loan from someone within her social network. It may be more opportunities to interview at companies where she has many acquaintances. It may even be an opportunity to start her own company, exploiting her network of business contacts. When faced with tough economic times, those members of the middle-class with little to no social capital could be at greater risk of slipping into the lower-class.
For people born into the lower-class, accumulating and taking advantage of social capital can be nearly impossible. This is because lower-class people generally achieve lower levels of education, which keeps them in jobs where their primary social network (and social capital) consists of what is available to them from others in their same financial position. They do not have college class mates who can provide job opportunities. They do not have family members from whom they can borrow money. And the lower-class are less able, financially, to join clubs or participate in activities which require fees that could increase the size of their social network. The consequence of this is that very little new social capital comes into the social networks of the lower-class.
Social capital and how it affects one’s financial and social status is important for lawyers to recognize because it provides some insight into the different ways law firms can generate new clients. Lawyers can choose to generate new clients through their own social capital, taking advantage of their large social networks to disseminate information about their practices. Lawyers can reach out to the large and growing population of people who do not have the social capital required to quickly find and hire a lawyer. Lawyers can even choose to do both, using both their own social networks and a strategy that reaches out to those with little to no social capital through advertising. Through some of my own focus groups and surveys, and the surveys of others, one fact stands out: Most people with low social capital do not know an attorney or have an attorney within their social network. There is a lyric in a song by the band Pedro the Lion, which best summarizes this predicament, “successful people rarely stay in touch with unsuccessful friends.” When these lower-class people, with little to no social capital, are faced with legal issues, whether it be a divorce, bankruptcy, or personal injury, there is no attorney readily available for them to reach out to. It is in this scenario that lawyer advertising becomes an important resource for these individuals as they pursue the possibility of legal recourse.
The data show that if you believe that all clients can be obtained and served through personal references, you may be wrong. In fact, the data also show that with regard to the size of this lower-class/low social capital population, an extremely high number of the people who need the services of an attorney cannot find one through their own social network. And perhaps even more disheartening, in the remote chance that there is an attorney somewhere within their social network, they most likely cannot afford them. This fact is most obvious within the practice area of criminal defense, where court appointed attorneys provide the legal representation needed by the lower-class and poor. But there is no tax funded or state mandated representation promised to the low-income victims of an injury. They are left largely on their own to negotiate with insurance companies or property owners when they suffer an injury due to the negligence of another. Lawyer advertising provides a bridge between these injured individuals and the lawyers who can serve them. The American Bar Association (ABA) published an article acknowledging this fact, writing that “Advertising is a viable vehicle to enable low income families to find legal representation. The importance of this finding cannot be ignored as the organized bar continues to pursue its goal of of improved access to all persons regardless of their income (Paxson 200:195)”.
Personal injury attorneys are in a unique position to provide “improved access to all persons regardless of their income (ABA).” This is because unlike most practice areas, personal injury attorneys can work on a contingency fee basis – meaning an injured person does not have to pay any up front cost if the attorney is unable to collect compensation for them (though they remain vulnerable to costs associated with losing a legal battle). In this way, a personal injury is not unlike the “sanctuary city” – a place where all are welcome. Personal injury attorneys can provide an important bridge between low-income individuals and the justice system, while exposing themselves to the same financial risks they assume with their more affluent clients. One other fact which is especially important to note from my own research, is that most lower-class people with no social capital express confusion over the term “contingency fee.” Though this concept is commonplace within law firms, lower-class potential clients do not always realize that they can seek out legal representation without having to make payments they cannot afford. Attorneys who choose an advertising strategy to reach out to this population should consider very clear messaging that reinforces the unique position personal injury attorneys are in to provide justice to low-income victims of negligence.
In listening to attorneys as they discuss law firm advertising, most suspect that advertising creates negative public perceptions about personal injury lawyers and their profession. However, the American Bar Association’s Commission on Advertising found that “while the legal profession strongly believes that advertising contributes to the decline of the profession’s image, the public rarely mentions advertising as a factor (Paxson 2002:195).” Perhaps more devastating to the image of personal injury attorneys is their lack of concerted organizations aimed at debunking the trial lawyer myths used as ammunition by large companies to scare citizens. Health insurance companies, physician’s groups, and well lobbied government officials have spent years broadcasting messages about the devastating consequences of the trial lawyer industry (see www.doctorsadvocate.org & www.thinkaboutitcolorado.org for some examples). The budgets for this messaging (including both media and lobbyist expenditures) far exceed the advertising budgets of almost every trial lawyer. Given this disparity in marketing spending, the public is much more likely to hear a negative message crafted by business interests against trial lawyers than they are to see an attorney advertisement. To combat this negative messaging, lawyers who do choose to advertise may want to consider messaging that encourages victims of negligence to reach out to them, but that also incorporates themes related to the role of attorneys in consumer protection and securing justice.
The number of our population who are categorized as low-income is growing. Whether they are born into the lower-class, or slip down due to a financial crisis, they have little, if any, social capital to draw from to improve their economic status. When faced with legal challenges, these people often do not have an attorney within their network who they can reach out to. It is at this time that lawyer advertising becomes an important bridge between the poor and the attorneys who could serve them. Lawyer advertising can also serve to debunk some of the myths disseminated by organizations who view justice as an obstacle to maximum profitability.
American Bar Association Commission on Advertising (1995). Lawyer Advertising at the Crossroads; Professional Policy Considerations. American Bar Association. Chicago.
Bourdieu, Pierre. (1983). Ökonomisches Kapital, kulturelles Kapital, soziales Kapital in Soziale Ungleichheiten (Soziale Welt, Sonderheft 2), edited by Reinhard Kreckel. Goettingen: Otto Schartz & Co. pp. 249.
Censky, Annalyn (2011). Middle-class income fell in the last decade. CNNMoney.com. Published Wednesday September 21, 2011. Retrieved 09/21/11 from http://finance.yahoo.com/news/Middleclass-income-fell-in-cnnm-1748504813.html? x=0&sec=topStories&pos=6&asset=&ccode=
Organization for Economic Cooperation and Development (2011). Growing Income Inequality in OECD Countries: What Drives it and How Can Policy Tackle it? Paris Forum. May, 2011. Retrieved 09/21/11 from http://www.oecd.org/dataoecd/32/20/47723414.pdf
Paxson, Peyton (2002). Have You Been Injured? The Current State of Personal Injury Lawyers’ Advertising. Journal of Popular Culture. September 1, 2002.
Watson, Bruce (2010). Disturbing Statistics on the Decline of America’s Middle Class. Daily Finance: America Online. Published 10/17/10. Retrieved 09/21/11 from http://www.dailyfinance.com/2010/10/17/disturbing-statistics-on-the-decline-of-americas- middle-class/
U.S. Census Bureau (2010). State and County QuickFacts. Retreived 09/21/11 from http://quickfacts.census.gov/qfd/states/08000.html.