This is a reprint from an article I wrote for the American Trial Lawyer Magazine. Enjoy!

Quick. What is the sound most plaintiff’s attorneys make when discussing medical malpractice tort reform?

Blah, blah, blah. Boo, hoo, hoo. Blah, blah, blah. Waaahhh, waaahhh, waaahhh.

Is anyone tired of this pity party? I know I am.

But, guess what I say when I participate in one of these conversations?

Blah, blah, blah. Boo, hoo, hoo. Blah, blah, blah. Waaahhh, waaahhh, waaahhh.

I chime in and shed alligator tears because I know what impact this conversation is having on attorney marketing around the country. It’s scaring away attorneys by the droves, creating a vacuum. And where there is a vacuum, there is opportunity.

The amount of ads focusing on medical malpractice has declined dramatically in this post-apocalyptic world of damage caps, proportional liability, and sliding scale attorney fees. Ask one of the plaintiff’s bar larger advertising agencies, and they will tell you as much.

Harlan Schillinger at Network Affiliates says he has only a handful of clients in select states, like Washington and New York, who are advertising for medical malpractice cases.

Arnie Malham, at cj Advertising, where I spend my time, will tell you the same. As Arnie observes, “We just produced some medical malpractice spots a few months ago but it was our first new batch in several years.”

Everyone agrees it is an impossible situation. To market for this type of case you have to wade through 100 “bad” cases to find just one worth pursuing. To properly prepare that one case, you have to spend more than the caps allow. Justice is not served if taking these cases bankrupts the firm.

But before we turn tail and run away screaming like school kids, let’s take a closer look at medical malpractice because, as the radio preacher, Charles Swindoll, said, “We are all faced with a series of great opportunities brilliantly disguised as impossible situations.”

What is the “great opportunity” that presents itself to us as a result of the Medical lobby and the Chamber of Commerce kicking our butts in most every state of the union with the passing of these draconian laws?

Here is my list of the three best opportunities:

Opportunity #1 – Streamlining/Outsourcing
Our profession is one of the most inefficient industries in our country. This is due, primarily, to the restraint of trade that has been imposed on our industry by the bar restrictions against ownership by non-attorneys. The margins are so absurdly large for most types of cases, and the competition is so vastly undercapitalized, who needs to be efficient to make a living?

But, if you have been following the conversation in this magazine about the opening of the Australia and England bars to outside investment, then you know that those “good ol’ days” are about to end in this country, as well. And pity the attorney who is not running a lean and mean 21st-century law practice when it happens.

A large study by the Harvard Medical Practice in 1990 found doctors were injuring one out of every 25 patients. This implies there is an endless supply of medical malpractice cases for the firms that streamline how they process these cases.

The opportunity is not in marketing. Any firms that advertises on TV knows that it could run an ad that says, “We only handle auto accidents” and it will still get a flood of med mal calls. Rather, the opportunity is in operations. Only the firms with extremely efficient operations will survive the next 10 years. Why not take this opportunity to do the hard work and get your firm’s operations in shape before it is too late?

In this regard, I can’t resist another quote about opportunity. Thomas Edison said, “Opportunity is missed by most people because it is dressed in overalls and looks like work.”

Some firms have a head start on you. These firms are outsourcing all their calls to trained legal intake folks, such as Legal Intake Professionals. In most cases, this greatly reduces intake costs while improving overall results.

Other firms have taken it a step further. Richard Harris in Las Vegas, the Joye Law Firm in South Carolina, Carter Mario in Connecticut and other firms have outsourced all their medical malpractice calls to a new outfit called Med View Services (www.medviewservices.com), that uses clinically experienced registered nurses to screen these calls for medical merit. So, instead of squandering money on hours of staff time sorting through those 100 non-cases, these firms can now focus their time and resources on that one potential new med mal case, while keeping the staff focused on their active cases.

Other firms have become efficient on the heavy lifting side of the equation. Texas, one of the worst hit states for medical malpractice tort reform, still has firms that know how to work a med mal case into a profit for the firm. Because almost every other firm has abandoned these cases, the last-man-standing firms get to pick and choose the best referrals.

Opportunity #2 – Micro-Niche
Any good marketing book will tell you that finding and developing a niche market is one of the best ways to leverage your limited marketing dollars.

I was sitting in a focus group recently. The group was asked to watch and evaluate several attorney commercials. One commercial was by an attorney named Botkin who talked in his ad about representing burn victims. When we asked the group who they would call if they were in an auto accident and needed an attorney, one guy shouted out, “I’m not sure who I would call if I was in an auto accident but, if I was burned, I’d call Botkin!”

Some savvy firms are using the impetus of the tort reform crisis to push further into niche marketing. In some states nursing home cases that used to get lumped into medical malpractice are now separated by firms as worthy of niche marketing efforts. In other states, certain types of medical malpractice cases are still profitable and firms are focusing all their branding efforts to occupy that micro-niche. As macabre as it may sound, there is a firm that has found profitability and security by becoming the “Baby Brain Injury” law firm.

Opportunity #3 – Lesson Learned
When the $4 billion Vioxx settlement was announced, I’m sure that many of you did what I did. I quickly calculated that this represented a billion plus dollars in attorney fees for the smart firms that marketed for these cases.

But I am guessing that few of you made the next calculation – wondering how much of this billion plus would be used to launch PR efforts to combat tort reform and build brand.

If those firms had joined forces and given a good marketing company just 10% of those attorney fees, say $100 million, the marketing company could have not only made a serious dent in tort reform but could have also built brands for those firms that were indestructible.

The firms that have hoarded all those mass tort dollars over the years are not just greedy & selfish, they are stupid. Instead of building their yachts and sailing off into historical oblivion, they could have helped the millions who have lost their day in court due to tort reform and they could have built a brand. In short, instead of building a boat, they could have built a legacy.

What a novel idea. Fight tort reform and build a brand that thrives in the new world that is just around the corner. Find a small place for yourself in the history books.

Summary
So, here is what I say to those of you with the heart for it. Let’s man up and find the inner resources to meet these challenges, embrace this demon and pass through one more gate on our hero’s journey. As the remarkable author, Joseph Campbell, said, “Opportunities to find deeper powers within ourselves come when life seems most challenging.”

But, if you misplaced your heart along the way and insist on standing on the side of the road wallowing in self-pity about tort reform, here is what I say to you:

Blah, blah, blah. Boo, hoo, hoo. Blah, blah, blah. Waaahhh, waaahhh, waaahhh.