In Business Q and A

Ed Bernstein, owner, Edward M. Bernstein & Associates law firm

Interviewed by Alana Roberts / Staff Writer

Ed Bernstein Photo by Steve Marcus

Personal injury and medical malpractice lawyer Edward Bernstein has helped to set the standard of legal advertising in the Las Vegas Valley. With his in-house marketing firm Explosive Media and a weekly television show that airs on Sunday afternoons on NBC affiliate KVBC Channel 3, Bernstein said he was the first in Southern Nevada to advertise on television and to advertise in Spanish.

Bernstein, who has practiced for 28 years in Las Vegas, said changes in the area's legal industry are positive and negative. He said the creation of the William S. Boyd School of Law at UNLV is helping to raise the standard of legal practice in the area. However, he said, the legal industry has changed from a close-knit community to one that has grown impersonal because of the increase in the number of lawyers practicing here.

Bernstein said the initiative that passed in the November 2004 election limiting the amount of damages medical malpractice plaintiffs can seek in Nevada left consumers with less power to ensure that the industry is held accountable for mistakes. He said the campaign falsely convinced the public that doctors were leaving Nevada when statistics have shown otherwise. He also said the new law has done nothing to limit the cost of medical malpractice insurance for doctors.

How has the legal industry in the Las Vegas Valley and Nevada changed during your time?

When I first moved here there were only a few hundred attorneys here. Now we of course have multiple thousands of lawyers. We've had a tremendous number of attorneys move here from Southern California.

There's now a law school here that there wasn't before. The bar exam is now given here twice a year instead of once a year. So all of these factors have contributed to really increase the attorney population.

There's a lot of competition here now and the practice of law has significantly changed as a result of that.

Do you think the change has been for the better?

Like all change there's a good side and a bad side. The good side is it's nice to have a law school here, nice to have the resources, the professors. It's nice to have a better quality of attorney here.

On the negative side there's a lot of attorneys here who are less than scrupulous. There's some of the problems a big city has with their legal system as the result of essentially too many lawyers.

There's a law school here that's generating more lawyers. Do you think there needs to be a school here?

Law schools provide great support to a community. It's nice to have that resource available to attorneys who are practicing here. If there are legal issues they'll have professors they can go to at the law school and discuss those legal issues with.

The law school also serves the consumer population. A lot of the population can't afford attorneys. They have a program at the law school, clinics with law students who are helping disadvantaged communities. In that regard the law school is a big benefit.

What do you think will happen if there are too many lawyers?

I think the marketplace naturally finds its own level. The pass rate for the Nevada bar is very low. Somewhere between 50 and 60 percent, depending on which test you're talking about.

I think there's always there's going to be more lawyers. I'm hopeful that as a result of the law school the quality of candidates and attorneys will be elevated.

Why do you think the bar pass rate is so low?

I think there are a lot of candidates who come from unaccredited law schools in other states that take the bar. I think Nevada has taken a position of, "Hey, we're going to be tough. There's a lot of people that want to move here, so we're just going to give a tough bar exam and screen out the ones who maybe perhaps are not as qualified."

Why did you decide to practice law in Nevada at a time when the community was much smaller than it is?

That was exactly why I wanted to. When I started practicing law here you could kind of put a shingle outside and just kind of do the old-fashioned way of practicing law and that was very appealing to me. I enjoyed practicing law when all the lawyers knew each other.

There was certainly a lot of camaraderie and civility as a result of that. That's kind of been lost with the number of new lawyers.

What has contributed to the growth of your firm?

I like to think it's been word-of-mouth referrals, satisfied clients. We've always gone out of our way to provide customer service, to be empathetic to clients. We've always been a stickler about returning phone calls quickly, being available to clients, being honest, truthful.

Over the years of being here we've had thousands and thousands of clients who were repeat business who were referring friends and relatives to us.

Your firm had several locations around the state; now you're located in Las Vegas and Henderson. What led you to scale back your practice?

At one time in the late '90s we had offices in Carson City, in Lake Tahoe and Reno. In 1999 I decided to run for the United States Senate. I really had to focus my energies in running for the Senate.

At that time I downsized our practice by giving up the offices we had in Northern Nevada.

How do law firms as businesses differ from other businesses?

I think law firms, in a similar way to medical firms, they're professional companies, and traditionally professionals are not good business people. Lawyers are very good at giving other people advice but not taking their own. They need to go out and take business courses.

How do your advertising and marketing efforts contribute to making your firm successful?

We've been advertising on television for over 20 years, and of course in the beginning you had to be first or different and we were both. So in the very beginning it significantly impacted our business, and it still does today. We've also probably done nearly 1,000 different television commercials over those years and keep looking for different formulas, different ideas, keep trying to change your message to reflect temporary times.

We're not afraid to take chances. We were the first to go on billboards, the first to go on radio, the first to do Spanish TV, the first to do Spanish radio. I was even the first to do cartoons on television and that, coupled with creating my own television show, makes things a lot different.

How does your television show impact your business?

I think people get an opportunity to learn from the show. Part of what I try to do with the show is to bring information to the viewing public. Whether it be information about what's happening around town.

We try to get shows that are author-based, or politically-based, or self-learning or self-help. We have also the mix of entertainers. I did a show (last month) with Dionne Warwick.

But my goal is to try to bring something out from that person that you didn't know about them.

Why did you decide to market yourself as aggressively as you do on television, billboards and radio?

Because I wanted to concentrate on personal injury law. I've always liked the idea of working for the little guy, fighting the big company. When you represent people who are hurt and (have been) taken advantage of, you're really working for the people who are least able to help themselves in society, and typically against big companies and big corporations.

That's a thrill for me. I thought the best way and quickest way to get there was to market myself.

You have an in-house advertising firm, Explosive Media. How common is that for a law firm to have an in-house firm.

When I first started, nobody had one. And the ad agencies didn't know how to do attorney commercials because it was so new. So we kind of started our own, and through trial and error established what did and did not work.

Throughout the years we've been able to do focus groups and to be able to do surveys and talk to our clients about what they liked and what they don't like. So we do a lot of in-house research in that regard so that's advantageous to us. Being in-house also gives you a whole lot more control over what you're going to do.

You're on a panel that looks at the Nevada Supreme Court's rules for lawyer advertising. Some of your competitors are more aggressive in their advertising than you have been. What do you think about their ads?

Nevada has some of the strictest advertising rules in the country. It seems like a lot of the rules just don't get enforced. We have rules in place that stop dramatizations and jingles and things like that and it just seems to me it's just not getting enforced.

I have always been an advocate of combining advertising and marketing that's professional. I do believe in the final analysis what we're selling is our reputation on television to the public. If you don't come across professionally it's damaging, not only to the individual attorney, but also to the profession as a whole.

We're not used car salesmen, we are attorneys, and it's a profession.

As a lawyer who practices in personal injury, products liability and medical malpractice, what concerns you about the state of law in those areas today?

Life is a pendulum. Right now it seems people have a misconception about attorneys and lawsuits. The insurance companies and corporate America over the last 10 years have spent multiple millions of dollars doing their own marketing about the evils of lawsuits.

Of course we in Nevada remember this proposition (the successful "Keep our Doctors in Nevada" initiative campaign) with the doctors leaving Nevada. Most of that was not true. In Nevada we have more doctors today than we did last year, we had more doctors last year than we did the year before.

If they're not coming to Nevada it has nothing to do with the laws here. Laws are the only check we have to keep corporations and doctors in check. If doctors are afraid of being sued and therefore are careful in practicing medicine, that's a good thing.

Medical malpractice for instance (in the Keep our Doctors in Nevada campaign), what they ended up doing is they scared the public into thinking doctors were leaving. What they did is reduce the amount of money that you can go to court and get in a case. That didn't stop frivolous cases, that stopped people who were the most seriously hurt people.

The court has its own mechanism of weeding out bad cases. That as well as the business aspect of it. Lawyers have to make business decisions when they take cases.

They want to take cases that are going to be profitable. That means they're not going to take bad cases -- it's a rare thing.

To take away people's rights, especially when we're talking about the people who need the protections most, it's unconscionable. Everybody's in favor of taking away rights to sue until they get injured, until they get fired, until they're wronged and then all of a sudden, they look and say, "What happened to my rights."

The same thing with medical malpractice, you said the rights of consumers have been limited in a way. What can they do?

It's reached a point where a lot of lawyers who used to handle medical malpractice cases have stopped handling them. They've always been very expensive because in order to handle a medical malpractice case you need to hire your own doctors and experts to testify that the standard of care fell below a certain of level. There's always been tens of thousands of dollars in out-of-pocket costs hiring experts to make the case.

In addition to that now the law is such that it's not economically feasible to really handle these cases. The irony of this is all of this stems from doctors complaining about their malpractice insurance rates. Those have not gone down.

Even the consumer studies show the cost of litigation is not at all a significant factor in what insurance companies charge doctors for malpractice insurance. The cost of medical care in and of itself, there's no correlation between that and litigation and that's a sham.

Medical care is a serious issue in this country. It's why I ended up running for the United States Senate. To me the sole issue was, how do we improve medical care? I have a daughter who has a chronic illness and has spent a lifetime in and out of hospitals.

You have HMOs dictating to doctors what they can and cannot do, patients are helpless. You never get to see the same doctor twice. Medical care is worse now than it's ever been.

Through all of this the HMOs and the insurance companies are having record profits.

Are consumers out of luck?

Consumers are out of luck until they really get on the ball and require their public officials to hold the insurance companies accountable for what they do. Right now insurance companies are exempt from antitrust laws.

You mentioned your run for the Senate in 2000. Could you elaborate on why you ran?

I ran because I really thought I could contribute by doing something for health care in this country, about putting decisions back in the hands of patients not HMOs. I really thought I could do something about the cost of prescription coverage. I was one of the first people in the country to take seniors down to Mexico to demonstrate you could buy prescription drugs down there for about one-fourth the price.

These are, by the way, the same drugs you could buy in the United States.

There was one prescription that was distributed out of Las Vegas, sent to Tijuana and sold at one-fourth the price that it was being sold for in Las Vegas. The drug companies are making obscene profits on these drugs. They complain they need the money for research and development but then again they spend more money for marketing and television commercials than they do on research and development.

We as consumers help finance the pharmaceutical industry. I would have been a strong voice for patients' rights. That would have been my main agenda going into the Senate, being able to freely import these drugs from Canada and Mexico.

Canada has the same agency, like we have the FDA, that approves their prescriptions, so what is the big deal? I don't know why our federal government just doesn't say, "OK, buy what you want to buy on the Internet from Canada."

Can you ensure safety that way?

You can't ensure safety in the United States. Look at Vioxx and other problems that we've had. I have never heard of any case of some defective drug coming out of Canada that somebody has purchased. These are the same drug companies that we're dealing with here in the U.S., but Canada can sell these drugs for 50 percent of the cost that we pay here.

Everybody asks me, "Why do we pay so much in the United States?" I once asked a pharmaceutical executive and his response was, "Because we can. Because the United States can afford to pay the price that's being charged."

The pharmaceutical industry is the No. 1 contributor to political campaigns. You can take the Senate, and you can take the House of Representatives, and you can look at the campaign contributions from the pharmaceutical industry and know which way somebody's going to vote on this issue.

Do you feel you got the support that you should have received from the Democratic Party, including from Senate Minority Leader Harry Reid?

Yeah, the party was great. I've got incredible friends, unions are very helpful. President Clinton came out twice to campaign for me.

National leaders came out, Jesse Jackson came out. Jesse Jackson made telephone calls for me from his office back East (in) a recorded message to voters.

Do you plan to run for any other offices?

Yeah, perhaps one day when I get older.

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