In Part I of this series, I listed my first six tips for preparing a nervous witness (or any witness, really) for a voluntary government interview. Those tips involved a lot of the mechanics of preparing your client for what the interview will look like.
Below is my second set of tips. They run the gamut from the obvious (tell your client to tell the truth) to the less-than-obvious (beware the speakerphone).
Feel free to add any tips you have in the comments. Who knows, maybe there will be a Part III to this series down the road.
Seven: Reassure your client that it’s okay to say “I don’t know” or “I don’t remember.” I’ve found that the more sophisticated the client is, the more difficult it is for him to admit that he can’t answer a question. But it is critical that clients don’t speculate or guess at the answer, since the government may have a document that conclusively establishes the answer—and giving an incorrect answer is simply fodder for a false statement charge.
Eight: Explain the difference between “I don’t know” and “I don’t remember.” Some people want to use them interchangeably. If your client simply doesn’t know the answer, then he should say “I don’t know.”
But if your client knew the answer at some point, but no longer recalls the answer, then the correct response is “I don’t remember.” I’m not shy about jumping in to say to a client if he starts speculating about the answer to say, “I’m sure Agent Smith doesn’t want you to guess at the answer, so only answer if you know the answer to the question.”
Nine: Preview what will happen if you decide to end the interview early. I always explain to my clients that we may have to stop the interview entirely. For example, if I’ve agreed with the prosecutor about the topics that will be discussed and then the prosecutor tries to sandbag us with a new (uncomfortable) topic, then we may have to put a stop to things ASAP. Or if the prosecutor—after reassuring me that my client is a witness—starts asking questions suggesting she’s a subject or target, then we will put an end to the interview.
This is a very rare occurrence, but I always want my client to know that I will be the “bad guy” and will be the one to tell the government that the interview is over. I’ve found that clients are always concerned that they will have to be the ones to shut things down. I also explain that ending a voluntary interview doesn’t result in anyone being tackled by an FBI agent on the way out.
Ten: Describe why it is important to take it slow. Most clients are eager to help and do so by answering the prosecutor/agents’ questions. That’s just fine. But you have to remind them to listen carefully to every question and to think before answering. I try to convince clients to pause before answering and think about whether they actually know the answer to the question before they answer it.
I explain that rushing to answer means that they haven’t taken the time to think through the answer and that this may result in the client inadvertently getting something wrong. It’s harder to correct a mistake than to avoid making one in the first place. This is particularly crucial in a white-collar case where the events in question may have happened many years before. I don’t want any client walking into a false statement charge because they didn’t stop to think for a moment before answering.
Eleven: What it means to “review a document.” It is a very rare client who understands what she should do when the government hands her a document and asks her to review it. The answer is simple: read it. Most people simply scan the email or report or spreadsheet and then look up, ready to answer questions or even start explaining what the document is before the government has asked a question. I explain that the better practice is to read the document carefully and not to feel as though taking the time to do that will slow down the interview or appear suspicious.
It’s most prosecutors’ practice not to have an extra copy of the documents available for me to review at the same time as my client. Whether this is a cost-saving measure or a deliberate strategy I don’t know, but it’s frustrating. My preference is to read the document at the same time as my client (which is why I’m always sitting right next to my client) so I can be alert to any hidden issues in the document and talk to my client privately first if necessary. I’m not shy about reminding my client if she appears to have only scanned the document to “take your time to read the whole thing.”
As a matter of strategy, I want to take detailed notes about each document since the government will generally not let me keep a copy of the documents. So, I need the client to take some time reviewing it so that I can take a few notes as well.
Twelve: Talk about what questions will be asked at the beginning of the interview. Most voluntary interviews start with innocuous question about work history and some agents or AUSAs will begin with small talk about weather, sports and the like. I warn my clients that no matter how friendly everyone seems, it’s still crucial to remain vigilant, listen to the questions and answer carefully. The government is not my client’s friend (wolves in sheep’s clothing and all that). There’s no need to be defensive or snappish, but that doesn’t mean we will let our guard down.
Thirteen: Beware the speakerphone. I was once in an interview with multiple agents in person and with one agent on the phone. At some point, we asked to take a break and the prosecutors and agents left the room. The break was an hour into the interview, and we had completely forgotten that there was an agent on the phone, since he hadn’t asked any questions.
Just as my client started to talk, the agent on the phone broke in to remind us that he was there and that he would sign off. Any agent would know that he cannot listen to a privileged conversation but I appreciated this agent’s honesty. It would have been awfully tempting to listen to the first few seconds of our conversation and then drop off the call. I’ll never forget about the agent-on-the-speakerphone again.
Fourteen: When English is a second language. A helpful reader alerted me that lawyers should think about and prepare for the situation where the client’s first language is not English. It may ease your client’s mind to alert the prosecutors so that they can bring an interpreter to the interview (this would be the government’s responsibility, not the client’s). The last thing you want to happen is to have your client show up, ready to go and then have to delay the interview to get an interpreter present at a later date.
Fifteen: The first/last/critical step in preparing your client is to remind her to tell the truth. You should say it over and over. I tell my clients again and again, “the most important thing to do is to tell the truth.” I want it to be a mantra for them. I want them to roll their eyes and be annoyed that I keep saying it. I want them to remember it. Just tell the damn truth. That will avoid half of the problems my clients face.
How long does the average attorney spend preparing their client of a proffer session?