Dramatic 'Heavy Hitter' ads now considered OK


If you watched the Super Bowl last week, you might have seen this commercial at halftime: A group of kids is playing touch football on a playground. A tough-looking youth knocks down a much smaller boy, giving him a bloody nose. Then a heavy-set kid with an in-your-face attitude comes to the rescue of the injured boy. He demands the bully hand over his shirt, shoes and bicycle to the injured youth.

"But it was an accident!" the bully pleads.

"I don't care. Give him your shoes. What about that? Is that your bike? Well, give him your bike, too," responds the young hero, who then walks with the victim into the distance with the bully's shirt, shoes and bicycle, winners in a playground David and Goliath battle.

This was a new advertisement for local personal injury lawyer Glen Lerner, known for his "Heavy Hitter" moniker. It might not surprise anyone to learn that the young defender in the commercial is supposed to be a young Lerner.

Less than a year ago, commercials like this might have raised eyebrows with state officials. Nevada had banned lawyer ads deemed as dramatizations. Commercials that "created suspense" or contained endorsements were also banned.

But no more.

The Nevada Supreme Court repealed the rules last year. As of Sept. 1, ads like Lerner's Super Bowl commercial are now allowed to be broadcast. The state Supreme Court cited First Amendment concerns for changing the rules.

"Taste is something we cannot govern without infringing on First Amendment rights," Justice James Hardesty said at the time. "So restrictions on taste will be eliminated."

Under the new rules, the State Bar reviews lawyers' ads within 15 days of publication to ensure that there is no false or misleading information in them. If an ad is found to be false or misleading, the attorney must pull it.

Other states handle advertising by lawyers differently. Florida, for example, restricts "manipulative" lawyer ads and goes so far as to bar attorneys from bragging about "past successes," according to the rules.

The Florida Supreme Court even upheld a complaint against a personal injury lawyer because his ad featured a pit bull wearing a spiked collar.

This, the justices said, invoked images of viciousness.

New York banned the use of terms like "Heavy Hitter" or "Dream Team" in 2006. Its rationale: It didn't want lawyers to imply success.

"They (New York and Florida) are very aggressive in their advertising regulations," said David Clark, deputy counsel at the Nevada Bar Association. "In my experience, the most aggressive in the country."

Nevada's change didn't arrive overnight. In December 2004, a 19-member committee made recommendations to the State Bar, which then brought the proposals to the state Supreme Court.

The committee found misleading statements were one of the most serious concerns in lawyer advertising.

In general, many in the legal community look down upon lawyers like Lerner who engage in what some consider as hucksterish advertising. But for Lerner, such ads have become a tradition, said Brian Prezgay, owner of On Target Media, the company that creates his ads.

For at least eight years, Lerner has advertised during the Super Bowl. During the 2002 Super Bowl, for example, Lerner broadcast an ad showing the audience in a stadium chanting "Heavy Hitter! Heavy Hitter!" The camera then pans to Lerner, who stands and waves at everyone.

On Target Media is well aware of the rules related to advertising and takes pains to ensure that the lawyer commercials are in compliance with the regulations, he said.

The Lerner ad that ran during this year's game, for example, had a disclaimer at the beginning that stated that the ad is a "dramatization." Regardless, Prezgay doubted anyone would believe the ad showed actual footage of a young Lerner settling a playground dispute. In fact, the children acting in the commercial are from a local Boy Scout troop, he said, adding that Lerner initially objected to the ad because he felt the kid playing him came across as too aggressive.

He said the company also submitted Lerner's commercial, along with about 20 other ads, to the State Bar on Thursday in keeping with the regulations.

Lerner previously said that he wouldn't submit his ads to the State Bar for review. He said he didn't want to turn over his ads to his competitors. However, Prezgay said he has always submitted Lerner's ads to the State Bar and Lerner has never told him not to. The State Bar also stated that Lerner has always turned in his commercials into the Bar on time.

Lerner's office did not return a phone call seeking comment.

Lerner has been in hot water recently after he missed the first day of a former client's murder trial in January. The State Bar recently received a complaint about Lerner's not showing up to the trial.

But those issues are separate from the light-hearted advertisements, Prezgay said.

"It's just a fun little Super Bowl commercial. I think half the people watch the Super Bowl for the commercials," Prezgay said.

Contact reporter David Kihara at dkihara @reviewjournal.com or (702) 380-1039.

 

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