Friday • March 3, 2006

Heavy hitters: here, there and everywhere

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     The State Bar of Nevada has advised a Las Vegas lawyer that he must stop running television ads in which he calls himself "The Heavy Hitter."  But apparently it will be okay if he calls himself "A Heavy Hitter" rather than "The Heavy Hitter."

"The bar told me that by calling myself 'The Heavy Hitter,' it was false and misleading because it was stating that I'm the only heavy hitter," explains the attorney, Glen Lerner, in an article that appeared yesterday on the web sites of ABC News and the Las Vegas Review Journal.

That's especially amusing to us here in Kentucky, because we know that the "real" heavy hitter is Louisville attorney Darryl Isaacs. We know that because Mr. Isaacs also advertises on television as "The Heavy Hitter."

In fact, some time ago there was an article in the Louisville Courier-Journal (which can still be found deep in the archives of Isaacs' web site) which reported that Isaacs had become something of a celebrity with ordinary people because of those ads.  Here's an excerpt from that article:

"You'd think that in the hometown of Pee Wee Reese and the Louisville Slugger, the phrase "The Heavy Hitter" would make folks think of a baseball star. Thanks to a nine-year multimedia ad campaign, they probably think of a 41-year-old personal injury lawyer instead.      

"'Crazy, isn't it?' Isaacs said. 'I never dreamed it would work so well. Sometimes I almost wish it didn't.'

"For Isaacs, the price of fame is nearly $1 million a year. That's what he spends to familiarize the public with his name and game - extracting monetary justice for the victims of auto accidents.

"The cost of fame is his anonymity. The guy can't walk into a store or restaurant without people shouting his name, shaking his hand and even asking for his autograph.

"'Sometimes when you're with Darryl, it takes five minutes to go 20 feet,' said Tim Culver, one of Isaacs' friends and executive director of the Trinity High School Foundation. 'Everybody knows The Heavy Hitter.'

But wait!  It appears that this is not merely an amusing coincidence.  Look closely, fellow Kentuckians, at the screen shot of the Las Vegas lawyer's television ad (above).  Doesn't the "Heavy Hitter" text at the bottom of the screen look strikingly familiar?  It appears that Mr. Lerner and Mr. Isaacs may have gotten their Heavy Hitter ads from the same advertising agency. Indeed, one wonders if Mr. Lerner paid for an exclusive right to be "The Heavy Hitter" in the Las Vegas ad market, while Mr. Isaacs paid for the right to be "The Heavy Hitter" in the Louisville market.

After all, there are other examples of syndicated TV ads for lawyers.  They include, most notoriously, the ad which shows an insurance claims manager saying "we had better settle this one" after he learns the name of the claimant's lawyer --- which varies from state to state.

Just think of all the humorous questions this raises:

• Can Mr. Isaacs keep calling himself "The Heavy Hitter" in Kentucky, while Mr. Lerner can only call himself "A Heavy Hitter" in Las Vegas?
• Does the ruling in Nevada mean that the Kentucky Advertising Commission ought to tell Mr. Isaacs to stop calling himself The Heavy Hitter? 
• If not, why not?  If it's misleading and deceptive in Nevada, isn't it also misleading and deceptive in Kentucky?  And if it isn't, is that because Kentuckians are more sophisticated than Nevadans?
• On the other hand, if Mr. Lerner sues the State Bar of Nevada (as he is threatening to do), can the Bar defend its position that Mr. Lerner is only a Heavy Hitter by calling Mr. Isaacs to testify that he is the Heavy Hitter in Kentucky?  But if it wins by doing so, must it then reward Mr. Isaacs by reporting him to the Kentucky bar, on suspicion of engaging in the same deceptive conduct?
• Better yet, would the State Bar of Nevada like to pay me to go to Las Vegas and testify that Mr. Lerner can't possibly be the Heavy Hitter because I was Bar Counsel in Kentucky when we allowed Mr. Isaacs to run the TV ads saying that he is the Heavy Hitter?  But how could I stand up to cross-examination by Mr. Lerner's counsel, when I would have to admit that we permitted Mr. Isaacs to run those ads?

More seriously, does this seem like the kind of thing that a state bar should be devoting time and resources to?  Does the State Bar of Nevada really think that Nevadans are misled into believing that Mr. Lerner is the only heavy hitter in the state, just because he calls himself "The Heavy Hitter."

One last question:  Why am I reminded of the book by Kentucky native Philip K. Howard, The Death of Common Sense?

[P.S. Thanks to My Shingle and The Legal Ethics Forum for pointing to the story].