By JODI SOKOLOWSKI
Buffalo Law Journal

"Auto injury?"

"Personal injury?"

"We sue drunk drivers."

Chances are, area residents have seen or heard those catch phrases in local advertising, a field crowded with personal-injury attorneys vying for business.

But just because Western New York may seem saturated with marketing messages doesn't mean the region sees a disproportionate concentration of lawsuits, area attorneys and a national expert say.

"You can't turn around without being bombarded by ads. It does create the perception that there are lawsuits everywhere and that this community subsists on litigation," said David Brock, a partner at Jaeckle Fleischmann & Mugel LLP who practices personal-injury defense.

Publicity surrounding big verdicts or settlement wins is commonplace. But the public often doesn't hear about defense successes and miniscule or reduced awards.

"The fact that somebody sues for a million dollars and ends up getting a recovery for $5,000 doesn't excite anyone," said Brock.

Filtering out the frivolous

Lawyers contacted for this story estimate that as many as 98 percent of all cases filed end up settling or are dismissed. National experts say that's a good thing, in that it helps to keep the courts fluid and frivolous lawsuits out.

"Our court system is pretty darn good at weeding out excesses. It has a lot of self-correction," said Steve McIndoo, a partner in the Van O'Steen Lawyer Marketing Group in Phoenix.

The public's perception of a legal community that's trigger-happy, in terms of litigation, or that wins huge recoveries for personal-injury claims is skewed, he said. Citing the infamous McDonald's scalding-coffee case, McIndoo said most people never read that the original $3 million verdict was later set aside by a judge.

"Outrageous verdicts usually are not allowed to stand," he said.

Ed Ryan, a plaintiffs' lawyer in Albany, says many potential clients come to lawyers with false expectations.

"Most plaintiff attorneys are very cognizant of the negative repercussions of the McDonald's verdict," he said.

Not ‘a plaintiffs' town'

Plaintiffs' lawyers say they're often at a disadvantage from the start, in part because of the general public's perception that they always win big for their clients.

The 8th Judicial District - particularly Erie County - has historically been viewed as a conservative place for injury claims, unlike areas of the state such as the Bronx or Nassau County, or elsewhere in the country.

"Some of the downstate counties are notorious for plaintiffs' recoveries," Brock said. "Buffalo has never been viewed as a plaintiffs' town."

He added that cost-of-living differences don't account for the discrepancy.

Lawyers say jurisdictions that seem to favor plaintiffs include Syracuse, Philadelphia, Chicago, Detroit, Miami and Texas. McIndoo says many plaintiffs' lawyers would love to get a change of venue for a case to be heard in Texas, where juries have traditionally been more sympathetic.

"If you got in front of those juries, you would have hit the mother lode," he said. "But those days are gone."

Brock suggests that Buffalo juries may not be particularly sympathetic to injured parties because of the city's blue-collar industrial beginnings and struggling economy, which don't lend themselves to giving away money hand over fist.

"It's easier to find a juror who will say, ‘I've been in a similar automobile accident, and nothing came of it,' " Brock said.

Those are the types of people that the defense wants on the jury, said Christopher Kerr, a plaintiffs' attorney at Jeffrey Freedman Attorneys at Law.

"The jury-selection process almost assures that people who sit on juries have no relevant experience with injury claims."

Picking and choosing

Personal-injury lawsuits require a serious injury, so the burden of proof may be difficult for plaintiffs' lawyers to meet. The state's no-fault law has also helped eliminate lawsuits, Kerr added. As a result, lawyers tend to pick which cases to take based on the potential payouts. Some regularly utilize jury-verdict search reports to compare similar cases and their results.

"I think it's statistically verifiable that jury verdicts in Western New York are lower than other parts of New York state and other parts of the country," Kerr said.

Law firms just can't be successful businesses, Kerr said, if they insist on taking every case to trial.

Market size not important

The size of the market also doesn't determine the frequency of lawyer advertising, McIndoo said. He pointed to Bowling Green, Ohio, where five of 16 personal-injury law firms duke it out in the advertising arena to reach just 65,000 residents.

"Many smaller markets than Buffalo have even more lawyer advertising going on," he said.

McIndoo's company, which helps lawyers and law firms with their advertising, is partly responsible for the trend: The company in 1977 brought and won Bates v. Arizona, the U.S. Supreme Court case that effectively permitted lawyer advertising in the United States.

"The capital of the personal-injury world is wherever you're hurt, wherever you need help," said McIndoo. "It's every little burg in this country."