Can’t Tell Anyone

In a prior post, I lamented how family and friends can’t relate to what Melissa and I do in our trial consulting business. One of the main reasons for their lack of understanding is the extremely high level of confidentiality involved in our work. In order for trial consultants to be able to effectively help trial lawyers and their teams prepare case strategies, our efforts must be considered attorney work product. This means that any work performed on the case, such as the research results, etc., cannot be discussed by anyone outside of the trial team. Sometimes, after a case is over, and with permission of the client/attorney, we can discuss a case. But, for the most part, our involvement is never to be revealed. Of course, if Melissa is present at trial to assist with jury selection, that part of the work is obvious and public. But, all details related to the strategies employed and decisions made are confidential. This has meant that we’ve had to bite our tongues over the years when someone asked, “Have you heard about the XYZ case?” And, most importantly, this has always been the number 1 item on a training list for new employees. It is only after they sign a confidentiality agreement that their training begins and then it begins with the explanation of these confidentiality issues. We instruct everyone who works with us to avoid identifying the case parties, the attorneys or firms, or anything which could reveal what we are working on in a given case. We don’t use general terms, like “We are going to Orlando to work on a medical malpractice case on Tuesday…” when talking with friends, family, or other clients. And, though many of the cases on which we have worked make the news, even the headlines, we remain silent. This has been a frustration to some people who have done marketing for us because, in a traditional business, such “news” would be worth sharing. We can’t! We won’t!

I will begin my part of this post by saying that David’s and my careers, as well as our business, are anything but traditional. In fact, our lives, in general, are far from traditional. When we have worked with marketing professionals, including those who specialize in social media, they quickly become frustrated when we explain we cannot employ the usual techniques businesses use to promote themselves. We cannot, for example: (1) discuss with potential clients the successes we have had with prior clients; (2) advertise our success or “win/loss” rate; (3) list all of the high profile cases on which we have consulted, along with the outcome of each one; (4) tell anyone what we are doing, for whom we are working, where we are working, etc. on any given day; or (5) admit to ever having met a particular attorney when asked by our friends and family. One of our clients described me as a ghost, who quietly and secretly performs my work, without most people knowing, then leaves before my presence is known. Another client refers to me as his “secret weapon,” about whom he wants no one, including his colleagues, to know. The requirement for the utmost secrecy takes its toll; not only are we not permitted to participate in marketing and public relations campaigns designed to enhance our so called brand, we cannot participate in discussions with family and friends about our interesting cases and clients. I learned the huge price to be paid for talking too much, to the wrong people, early in my career. I was working in Alaska and the person who was supervising my work got together with an old friend while we were in town. The old friend, in turn, introduced my supervisor to a friend of his while out for dinner one night in a town that was located quite a distance from where we were working. My supervisor said too much about why she was in Alaska, when she should have said absolutely nothing. Guess who was Juror #1 on the day jury selection began in this extremely high profile case? The friend of her friend, of course; the same person who heard all about the case during dinner the night before! Imagine how angry our clients were when my supervisor (to her credit) revealed she had discussed their case with one of the jurors! She was removed from the courtroom, taken off the case, and sent back to California, to explain what happened to her supervisor. This left yours truly to select the jury (my first jury selection, in fact) and attempt to convince the clients that not everyone on our team was as unprofessional as my supervisor. Loose lips can, and do, sink ships.

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