Representing a witness during a voluntary interview or proffer session with the government requires preparation. As the lawyer, you will get ready by reviewing documents, talking to other lawyers in the joint defense group about anticipated questions and working through those substantive topics with your client.
But you must also prepare your client for the nuts and bolts of what will happen during the interview. This preparation is just as important as the substantive part. Even a well-prepared client can fall apart during the interview if she faces an unanticipated environment.
Trust me, you don’t want to watch your client fall apart during the interview. I’ve been there. It ain’t pretty.
Some of these tips are more or less applicable depending on whether your client is accustomed to being the center of attention at a meeting or to answering difficult questions from a hostile audience.
For a CEO, walking into a large conference room filled with people staring at her will not be excessively intimidating. For a small-business owner or someone who works in a blue-collar field, simply walking into the room will be (at best) uncomfortable or (at worst) terrifying.
Spending some time preparing the witness for what will happen that day will help tamp down these fears and, hopefully, allow your client to focus on answering questions truthfully.
Here are the first 6 of my top tips for preparing a nervous witness for a voluntary government interview. (I’ll write some other time about preparing for a less-than-voluntary interview, such as a cooperation session by a person pleading guilty.)
ONE: Give your client all the information she needs to appear at the interview on time and without incident. This means that you should be sure to explain to the client where the interview is, the address of the building, where to park, whether you will meet the client outside or inside of the building, whether they can bring in a cell phone, a reminder to bring identification and so forth.
Some federal offices—the Eastern District of Virginia USAO comes to mind—have very strict security procedures. I once had a client forget to bring his ID with him. He had to run back to his car in the August heat to get it. He then spent most of the interview sweaty and upset. Luckily, he was a credible witness overall, even though he looked incredibly nervous and upset.
I always suggest meeting outside of the building and at least 15 minutes before the interview will begin. That gives us plenty of time to get through security and allows me to walk in with my client
TWO: Describe the physical location of the interview room. This is as simple as explaining that the interview will take place at the U.S. Attorney’s Office, likely in a conference room around a table. You should explain that you will sit next to your client and that, most likely, the two of you will be on one side of the table and the prosecutors and agents will be on the other side of the table.
THREE: Warn your client about the number and identity of people in the room. Generally, the AUSA will tell you ahead of time who will attend the meeting if you ask. There’s a very real difference between the feeling of walking into an interview facing one line prosecutor and one OIG agent, and walking into an interview facing three prosecutors, one supervisory prosecutor, and five FBI agents.
FOUR: Explain to your client that the prosecutor or agent will give a standard warning at the beginning of the interview. An unprepared client will naturally get nervous when a group of prosecutors and agents start flashing shiny badges and informing her that lying to a federal official is a crime.
You should explain to your client that everyone is required to identify themselves at the beginning of the interview and that this is a standard warning given to all witnesses, not a suggesting that they think she’s about to lie. (More about the importance of telling the truth below.)
FIVE: Discuss how to take a break so that the two of you can talk privately. I always remind my clients that is a voluntary interview and that we can stop it at any time and that we can take a break whenever we wish, even if a question is pending.
Some of my clients have been through civil depositions. They have learned that they cannot talk to their lawyer after the other side has asked a question and before they have answered it. That’s different than in a voluntary interview; if my client wants to talk with me before answering a question, they can do so.
I explain to my clients that if they need to speak to me privately, they need only turn to me and say, “Can I speak to you for a minute?” We’ll then step out into the hallway to talk, or the prosecutors and agents will step out of the room.
Likewise, I explain to my clients that I want to speak to them, I will say the same to them, and I let them know that this isn’t really a question, it’s a demand. If I interrupt the questioning to ask my client “Can I speak to you for a minute?” I’m really saying “Stop talking. Don’t answer that question. Let’s talk privately first.”
SIX: Discuss how to take a break for . . . more mundane matters. You should tell your client that he is always welcome to take a break to go to the bathroom or get a drink of water. I’ve had clients wriggling like a toddler but unwilling to ask to go to the bathroom because they are too nervous to do so. I’m keeping an eye on the clock myself and making sure we get a break every hour or so for a few minutes.
Getting water in a federal building can be a hassle at times. (In some offices, employees have to be part of the “water club” to use the filtered water—no kidding.) I try to bring a bottle for me and a bottle for my client, as long as I know the security officers will let me through with unopened bottles of water.
Of course, the most important tip is to remind your client over and over to tell the truth. I’ll talk about that–and more tips–in Part II.