Podcast - The Witness Interview: Dangerous Informality

Dan Small: Informal interview. It's a common term, but commonly misused. Most lawyers who represent people in government investigations, internal 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, their future, 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 this 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. The far more important considerations than feelings are consequences, including:

1. What are the consequences of agreeing to the interview or not?
2. What are the consequences if the witness says something that's not true, intentionally or unintentionally?
3. What are the consequences if the witness says something that indicates they may have done something improper?
4. What are the consequences if the witness says something that indicates that others may have done something improper?
5. What are the consequences if someone else is interviewed or testifies and says something different?
6. What are the consequences if there is a document that says something different?

All of a sudden "informal" doesn't seem so friendly. It shouldn't. And "informal" doesn't seem very relaxing. 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 interview is not sworn, meaning the witness will not generally take an oath, it should be treated as if the witness were under oath. Lying in an interview like this is foolish and dangerous. It can be used against a witness in various ways. In some circumstances, it could possibly even mean criminal prosecution. Remind your client to think about it as if he or she had taken an oath to tell the truth, the whole truth and nothing but the truth, with a particular focus we discussed in prior podcasts on nothing but the truth.

How Clients Should Approach Interviews

Interviews can happen in different places: a home, an office — either the attorney's, the client's or the questioner's — online via zoom or some other neutral territory. They can also be done by many different types of questioners: government or private investigators, government or private lawyers, or others. 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 the matter has progressed to where you feel the need to consult with counsel, you should treat any and every communication about the matter outside counsel's office as if it were sworn testimony. Be fully prepared, alert and careful. Second, if you are ever approach to be interviewed without counsel, you should politely, firmly and immediately decline, and refer whoever it is to your lawyer. Just take their name and phone number and tell them you will have a lawyer get back to them. This is far too important for playing games, and once the witness starts answering, oh, just a few questions, it can be very hard to stop. The irony here is that the testimony format, which seems much more difficult because it's so formal, is actually in some ways easier. That's because it's more obvious. All the formality and trappings of the testimony, the oath, the court reporter and so on act as giant red flags to remind the witness constantly of the need for caution and for discipline. The seemingly less formal interview setting can cause a witness to forget that discipline, lulling him or her into a false sense of security.

U.S. v. Schulte: A Lesson Learned the Hard Way

I commend to you as one hard lesson the Tenth Circuit opinion in 2014 regarding John Schulte. It's U.S. v. Schulte, 741 F.3rd 1141. Schulte was a 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 enforcement of the rules limiting testing without FDA approval a high priority. As a result, one fine September day, 30 to 40 officers from the FDA and other federal agencies appeared at the company's offices wearing flak jackets and executed a federal search warrant. Despite the ensuing chaos, Schulte voluntarily agreed to an informal interview with his corporate counsel, who apparently knew little or nothing of the matter and little or nothing about the dangers of an informal interview. During the interview, Schulte denied knowledge of the testing. Schulte was charged in a 12-count indictment focused largely on the FDA-related offenses. However, after a trial, he was acquitted by the jury on all the charges, all the FDA charges, except one count tacked on at the end of making false statements in his interview. On that count, a felony, 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 anything that he said by mistake. The Court of Appeals rejected those arguments and affirmed the conviction. Thus an informal interview that should never have happened, at least not that way, turned a CEO into a criminal.

In prior podcasts, we've discussed how being a witness is not a conversation, and that so much of what we do in a normal conversation is not appropriate in a witness environment. The 10 rules we've gone over in prior podcasts are designed to help enforce that distinction. The danger of the informal interview is that witnesses may treat it like a conversation, thinking that they can talk their way through it. Don't make that mistake. Both environments require a similarly high level of preparation and precision. Just ask former CEO, and now federal felon, Schulte.