We want to start by emphasizing the word restrictions. The law at issue in West Virginia was not a ban on plaintiff lawyer advertising, nor could it be. Since Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the First Amendment’s protection of truthful and non-misleading commercial speech extends to lawyers. Lawyers,
We write mostly about decisions in cases, with those mostly coming from judges. Occasionally, we will also comment on articles, amicus briefs, and official government pronouncements. We cannot remember the last time we explored a press release. In today’s political environment, speculation about what is contained in documents that purportedly exist but we cannot see…
Most of the cases we defend involve claims of inadequate warnings. What makes a warning inadequate? Falsehood is the first thing that comes to mind. But the Pontius Pilate question of “What is truth?” continues to vex. We have seen very few drug or device labels uttering an affirmative misrepresentation. More often the complaint is about what the warning did not say, not what it did say. If John Lennon sang “Gimme Some Truth,” plaintiff lawyers sing (off-key) “gimme some more truth.” To our ears, it sounds like “gimme some more money.” Whatever. Plaintiffs allege that the product label did not disclose all of the serious side effects, or did not recite them with sufficient detail and drama. There is a hierarchy of warning inadequacy. A warning can ‘fail’ for any of various reasons. You pays your money and you takes your choice. Did the warning:
- Fail to grab attention?
- Fail to persuade?
- Fail to change action?
The last test is a slam dunk. If the consumer heeded the warning, we wouldn’t be enjoying each other’s company in the courtroom. There would be no complaint. Probably.
The first warnings we remember seeing were on cigarette packs. The United States was the first country to require such warnings. Back in 1966, the sides of cigarette packs were adorned with the following: “Caution: Cigarette smoking may be hazardous to your health.” That warning did not include the word “warning.” Change came a couple of years later. In 1970, packs reminded us that the Surgeon General had determined that cigarettes were “dangerous.” Still later, smokers were treated to rotating warnings. Some packs warned of cancer, emphysema, heart disease, and pregnancy complications. Some stated that cigarette smoke contains carbon monoxide. Some suggested that quitting now could improve one’s health. And some warned pregnant smokers of possible fetal injury, premature birth, and low birth weight. We heard that one fellow filed a lawsuit alleging that cigarettes had caused his lung cancer, while also claiming he had not been adequately warned, because he had made a point of buying only the packs that talked about pregnancy complications. That case proved at least two things: (a) no matter what, some people will smoke, and (b) no matter what, some people will file silly lawsuits.…