October 26, 2010

Who are you talking to? You talking to me?

by Cary J. Calderone, Esquire

Here comes a little rant.  I try to be nice, really I do.  But it is very frustrating when my energy and efforts to help a client are thwarted or, challenged by more aggressive and "less informed" consultants and sales representatives posing as consultants.  Attorneys, sales reps and consultants usually have different education backgrounds, different experiences, and different motivations.  So I wanted to devote this blog post to summarize and distinguish these three professionals who may be employed to assist you with your DRED project. 

First, there is the sales representative who makes some or all of their salary by making a sale.  They have to get you to say "yes" to their product or service in order to earn their commission.  Accordingly, they are not the most motivated when it comes to telling you how their product might fail you or how over-simplified their "form data retention policy" might be.  Most seasoned customers recognize the motivation of the nice and helpful sales rep and view their information as potentially inaccurate. 

Next there is the consultant, (and not one that is really tied to a specific product which makes them a sales rep disguised as a consultant) offering you "best practices." The consultant needs to make you happy with the service and/or product they select so getting you to say "yes," is not always enough.  If it doesn't work out as advertised, you probably will not want to pay for it.  So, where a sales rep might proclaim a product definitely can handle your needs, the experienced consultant will hedge a bit, to avoid possible fallout later on.  I get quite a few questions from "consultants" asking me to explain some point of law to them so they can explain it to their client. I typically do not help them.  It is their intention to take complex legal points and simplify them because, "that is what their clients like." Needless to say, simple is not accurate and frequently will cause their client more harm than good.  A little information truly can be a dangerous thing.

Lastly, there is the attorney (cue dramatic background music).  The attorney is risk-adverse and picky about simple statements of the law.  We learn that words have meaning and appreciate that even when sales reps and consultants use our words or case law appropriately, they often find a way to mess up the scope or analysis of the legal principle. While attorneys are often derided for making the simple seem complex, in our defense,  frequently things that appear simple, are simply not.  And, when it comes to your legal obigations, we attorneys are the ultimate and best source to evaluate your legal hold, data retention and eDiscovery policies and procedures.  Most good sales reps and consultants agree with this.  even if they occasionally forget it while they try to "help" their client.

So, who are you talking to?   When it comes to legal points, I hope it is your very wise and well-informed attorney. Can you hear me now?

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