Bearing Witness Witness interviews can be a dangerous informality

By Daniel I. Small The Daily Record Newswire "Informal interview": a common, but commonly misused, term. Most lawyers who represent people in government investigations, employment matters, regulatory matters and more can recite horror stories of the results of people walking woefully unprepared into interviews that could determine their finances, their employment, even their freedom. All because someone used the word "informal." The reality is that if a witness is involved in an inquiry, case or matter that may have legal implications, nothing is informal. For laypeople to fail to understand that may be understandable; for lawyers to fail to warn them is inexcusable. The dictionary defines "informal" as "relaxed and friendly"; however, whether or not an interview environment has a relaxed and friendly feel to it, that feeling is usually just superficial - and deceptive. Far more important than feelings are consequences, including: 1) What are the consequences of agreeing to the interview, or not agreeing? 2) What are the consequences if the witness says something that's not true, whether intentionally or unintentionally? 3) What are the consequences if the witness says something that indicates he may have done something improper? 4) What are the consequences if the witness says something that indicates others may have done something improper? 5) What are the consequence if someone else is "interviewed" (or testifies) and says something different? 6) What are the consequences if there is a document that states something different? All of a sudden, "informal" doesn't seem so "friendly." It shouldn't. Too often "informal" ends up meaning unprepared, unprotected, unaware and unemployed. Do not be fooled by "informality." This is a very serious, and sometimes risky, process. Every question from the questioner, no matter how friendly, has a purpose. Every statement the witness makes, no matter how casual, may be written down and used. It is a difficult, often artificial and unnatural procedure that demands your client's careful attention and preparation. Although an interviewee is not sworn, the process should be treated as if the witness were under oath. Lying in an interview is foolish and dangerous. It can be used against a witness in various ways, and in some circumstances it could possibly mean criminal prosecution. Remind your client to think about it as if he had taken an oath to tell the truth, the whole truth, and nothing but the truth (with the particular focus on "nothing but the truth"). Interviews can happen in different places: a home, office (either the attorney's, the client's or the questioner's), or some "neutral" territory. They can also be done by many different types of questioners, including government or private investigators, or government or private lawyers. Moreover, they may sometimes be done with different ground rules: for attribution or not, under immunity or not, confidential or not. You need to work with your client to decide what is best in each particular case, and what the questioner must or might agree to. Of course, this assumes that you have the opportunity to speak with the witness beforehand. Get two key points across to your clients. First, once a matter has progressed to the need to consult with counsel, the witness should treat any and every communication about the matter outside counsel's office as if it were sworn testimony. He should be fully prepared, alert and careful. Second, if a witness is ever approached to be interviewed without counsel, he should politely, firmly and immediately decline, and refer whoever it is to his lawyer. It is far too important for game playing, and once a witness starts answering "just a few questions," it can be very hard to stop. The irony here is that the testimony format, which seems much more onerous because it is so formal, is actually, in some ways, easier. That's because it is more obvious. All the formality and trappings of testimony - the oath, the court reporter, etc. - act as giant red flags to remind the witness constantly of the need for caution and discipline. The seemingly less formal interview setting can cause a witness to forget that discipline, lulling him into a false sense of security. Take, as one hard lesson, the 10th U.S. Circuit Court of Appeals opinion earlier this year regarding John Schulte (U.S. v. Schulte, 741 F3d 1141 (10th, Jan. 21, 2014)). Schulte was the CEO of a medical device company. He oversaw some limited testing of two potentially useful devices, but ultimately decided not to go forward with them. No one was harmed, and no significant money was involved. Nothing came of it - except that the FDA had made it a high priority to enforce the rules limiting testing without FDA approval. As a result, one fine September day, 30 to 40 officers from the FDA and other federal agencies appeared at the company's offices and executed a federal search warrant. Despite the ensuing chaos, Schulte voluntarily agreed to an informal interview with corporate counsel - who apparently knew little or nothing about the matter. During the interview, Schulte denied knowledge of the testing. He was charged in a 12-count indictment focused largely on the FDA-related offenses; however, after trial, he was acquitted by a jury on all charges, except one count of making false statements in his interview. On that count, he was convicted. On appeal, Schulte argued that the questions were ambiguous (there was no transcript), his answers were technically truthful, the issues were immaterial, and he subsequently clarified or recanted. The court rejected those arguments and affirmed the conviction. Thus, an informal interview - which should never have happened, at least not that way - turned an otherwise clean CEO into a criminal. The danger of the "informal interview" is that a witness may let his guard down and treat it like a conversation, thinking he can talk his way through it. Don't let a witness make that mistake. Both environments require a similarly high level of preparation and precision. Just ask former CEO - and now, felon - Schulte. ----- Daniel I. Small is a partner in the Boston and Miami offices of Holland & Knight. A former federal prosecutor, he is the author of the American Bar Association's "Preparing Witnesses" (4th Edition, 2014). He can be contacted at dan.small@hklaw.com. Published: Mon, Jan 19, 2015