- The stakes in lawsuits are very high. As a result, both parties have strong incentives to win.
- Plaintiffs should only discuss the case with their lawyers’ prior approval. Plaintiffs are the best source of information, so they are natural targets for information-gatherers. Efforts by others to directly contact our clients are almost always inappropriate. Such efforts (by phone, email or text) may come from government agencies, former coworkers, or private investigators. Government investigators, or former coworkers/managers, may openly attempt direct contact with our clients. Others may be less clear about who they are; some may misstate their identity. Telephone calls, emails and text messages pose identification problems because the identity information disclosed or displayed may be inaccurate, but not obviously so.
- Clients should simply use care in verifying that communications are from us, or approved by us, before discussion begins. Clients should always report contact by others about their case.
This past week I received a phone message from a client who was returning a call from our office. Our investigator called her, she said, and had a few questions. In fact, our investigator hadn’t called. No one had; I checked around the office to be sure. I don’t know who called our client, but it wasn’t us.
I occasionally remind clients to take reasonable steps to ensure that incoming calls, emails or other inquiries are in fact from us, or have been approved by us ahead of time. Once we begin representing you, others should discontinue efforts to speak with you directly about the case. This shield we provide benefits you in important ways.
But others don’t always follow the rules, and may try to speak with you without asking us first. Government investigators may call or write. Former coworkers may be recruited to call, text, or email you, or may contact you online (e.g., Facebook, MySpace, or LinkedIn). Private investigators are occasionally hired by defendants to gather information, too. They may contact you and immediately launch into discussion about your case, before you can think twice about who they are. In rare instances, a less forthright investigator may even provide misleading information about who they are. This doesn’t mean the defendant authorized such conduct. But it happens, and it’s just good to be aware of the possibility, however remote.
There’s no need to stay up nights worrying about bogus calls, emails or texts. Just be certain about who you’re communicating with, and be sure to check with us before discussing your case with anyone. Prudence might be nothing more complicated, when getting a call you don’t recognize, than thanking the caller, taking their name and number, hanging up, and then calling us to verify it before discussing anything of substance. Dialing us back is a safe and simple way to be sure you’re talking with someone at our firm. The same is true of incoming emails, texts or “friend” requests on your social media profile. If you’re in the middle of a case and you’re getting friend requests from people you don’t know, think twice before accepting it. And, of course, be mindful about what you post or allow to be posted on your profiles; assume it may be seen by our adversary.
My basic five tips for protecting against inadvertent communications with the wrong folks:
- If you receive calls about your case, be proactive. Ask who it is, who they’re with, and why they’re calling you. Ask if we authorized them to contact you. If the name or voice is new, take a name and number and call us. Don’t discuss details, and don’t rely solely on the caller’s self-identification.
- Be cautious about emails and texts from numbers or email addresses you don’t recognize. Our office will only write you from established addresses (e.g., email@example.com, or firstname.lastname@example.org). If you’re just not sure who sent the email, call us before responding.
- Avoid overreliance on technology to verify who’s who. Use your instinct. Caller ID, for example, is not reliable. Businesses, law enforcement and private investigators have long been able to choose the number you see. Caller ID “spoofing” software is readily available, including here (Spoofcard), here (CallerIDSpoofing) and here (CovertCalling). Tools to fake the source of text messages are also available, including here (Spoofcard.com/sms), here (Spranked) and here (FakeMessage). And as ridiculous as it may sound, voice-changing software, which can make undetectable, true-life changes in voice (including gender and age), is oft-discussed on private investigator websites as a tool. I doubt it is often used, although if you believe those websites, or the sellers of these programs, they’re very popular (such as the Voice Changer Diamond Edition).
- If an investigator calls you from one of the many government agencies that investigates claims, just get their name and number and say you’ll call them back. Then alert us for approval. The most common are the Equal Employment Opportunity Commission (EEOC), the Florida Commission On Human Relations (FCHR), the Department of Labor (DOL), and the Office Of Federal Contract Compliance Programs (OFCCP). A legitimate caller will not mind you alerting us before you talk to them.
- Investigators employed directly by the defendant may also contact you. A good investigator will create the impression you are obligated to talk to them. It’s not true. Don’t let a caller guilt you into talking about your case. Resist the effort, and call us.
The more we all scoff (me included) at the possibility of being manipulated by simple technology (“Nay! I can’t be fooled by such silly tricks!”) the easier it is for others to do exactly that. That is how email viruses spread so easily. Technology has a way of sneaking up on people. So do investigators.