These days advertising campaigns are designed to do more than just make consumers aware of products that they may need. They are also designed to create public perceptions that will help drive and influence other behaviors on a social level—to change the way they think.
An excellent case in point is a recent Allstate commercial that directly attempts to shape how people think about “greedy attorneys” and “frivolous lawsuits.” In general, Allstate has three clear objectives for its advertising campaigns. One objective is to increase revenue by increasing the number of new customers.
Another objective is to generate additional revenue by persuading existing customers to increase their coverage . And finally, Allstate wants to minimize jury awards in personal injury cases by creating a negative perception among potential jurors of these cases and the attorneys that handle them.
The most recent example of Allstate’s campaign is a television ad showing a court room scene. The ad shows a judge entering a judgment against a young man (defendant) in the amount of $100,000. The ad suggests that there has just been a trial and the verdict is being announced. The ad also suggests that the case involved a car accident. The defendant and his lawyer clearly look upset, which suggests that the man’s insurance policy will not be enough to pay the full $100,000 judgment.
The ad then shows the plaintiff's attorney and his client discuss whether the defendant has a college fund that can be used to pay the balance of the judgment. The parents of the defendant look extremely upset. They ask the defense attorney, "Can they do that?" And he replies, “Yes, they can.” Clearly, Allstate’s goal for the ad is to scare people into thinking that they need more insurance coverage or else ruthless attorneys will go after their personal assets if they are sued for an accident.
Well, this scenario rarely, if ever happens. Here’s why. First, most attorneys will not incur the substantial expense and time necessary to go to trial if a defendant’s policy limits has already been tendered to settle a claim. By doing so, the attorney is essentially spending thousands of dollars with little if any guarantee that the expense will be recouped. Second, getting a judgment is only half the battle. Then you have to attempt to collect on that judgment. This is a time-consuming and expensive process. Again, there are additional costs involved in the collection procedures. The defendant debtor may also declare bankruptcy which could discharge the entire judgment and the attorney is then out thousands of dollars that have been incurred to go to trial. The bankruptcy laws also protect certain assets like a home and a retirement account. So these assets may not even be touched.
Here is what usually happens in this type of case. The plaintiff’s attorney asks Allstate to pay out its insured’s policy limits to settle the case. In return, the plaintiff will agree to dismiss his claims and not get a judgment against the defendant personally. Allstate refuses. This forces the plaintiff’s attorney to go to trial just to get a judgment so the policy limits can be recovered. If the jury renders a verdict that is more than the defendant’s policy limits, then the defendant has a claim against Allstate for its negligent refusal to settle the claim within the limits of the policy. When this occurs, the defendant will usually assign his rights against Allstate to the plaintiff in exchange for the plaintiff not going after his personal assets. Then, Allstate will either appeal the case or pay the entire judgment. Why is this the usual scenario? Because it has happened to at least three (3) of my clients in the last 4 years.