The witness prep survival guide for CFEs

Congratulations, Ms. or Mr. CFE! You conducted an exhaustive examination of a defrauded business and identified a perpetrator who was later criminally charged with various felony-level financial crimes about 11 months after you submitted your examination. The criminal case has moseyed through the court system for another 22 months after charging, and settlement negotiations between the prosecution and the defense have come to naught. About three weeks before the trial, you receive a bouncing baby subpoena for a criminal trial appearance and three voicemails from a harried legal secretary asking to schedule a meeting between you and the prosecutor for — wait for it — WITNESS PREP.

No good deed goes unpunished.

For the uninitiated, witness prep (shorthand, of course, for witness preparation) is a standard practice in which civil and criminal trial attorneys meet with all the witnesses they've subpoenaed to testify in their cases. They review the cases and the witnesses' anticipated testimony, and ... do that, over and over and over again.

Because CFEs' fraud examinations usually have a legal dimension, they're ripe for winding up on trial witness lists and later in attorneys' offices. The lawyers review every cough, sniffle and hack of the CFEs' examinations and other information to prepare for testimony. It's even more "fun" than it sounds: a verbal colonoscopy of sorts that never quite ends. Witness prep is also absolutely essential for the attorneys' preparation of their trials, so consider this your way of taking one for the team in the endless fight against fraud.

As a veteran of countless witness prep meetings — as a subpoenaed witness and as a witness-prep-meeting note taker — I offer some tips to help you survive the witness prep process.

Initially scheduling the meeting

When your meeting is first scheduled, take the amount of time the prosecutor allots for the meeting and double that in your calendar. Attorneys routinely underestimate the time they'll need to prep you. Prepare a large lunchbox to bring to the meeting, with plenty of energy food and a water bottle or a six-pack of Red Bull. You'll need it.

Also, if you request or suggest that the meeting be conducted over the phone or at your office, the response will sound like you just suggested throwing a cigarette butt on the sidewalk. Attorneys get very anxious out of their native habitats during Trial Prep Time.

Preparing for the meeting

Always ask the prosecutor if you should bring any documents or items related to the case to the first meeting. Plan to bring all documents you think were pertinent to the fraud examination. If you don't, odds are good that the attorneys will ask for something you don't have on hand. Be forewarned, however, that the odds are equally good that the attorneys might not remember previously seeing some of the documents you brought, which could spawn a flurry of scanning and photocopying and worrying about disclosure-to-opposing-counsel issues.

Before the meeting, study a copy of the criminal complaint from the prosecutor's office plus your entire case file. Listen to all recordings of interviews you conducted. Internalize every page of every document and every utterance in interviews down to the last comma, decimal point, "uh" and "um." Pay special attention to any financial analyses you created from the source financial documents and be prepared to describe in detail how you prepared them. Know exactly where you can find the source data in the documents.

The meeting

Trial attorneys might be loud or soft-spoken, gracious or bellicose, focused or distracted. But the main thing to keep in mind is that when a good attorney is in trial mode, she's a mad dog with a new bone. Criminal trial work is extremely intense, and the good attorneys obsess about each and every molecule of their case and their opposing counsel's case.

Often you'll meet with the attorney in their office. The neatly tabbed binders you lovingly prepared and delivered to the prosecutor's office will be nowhere; they'll have been deconstructed, scanned and copied and then reorganized, reconstructed and recopied in triplicate long ago. (If you meet with the attorney in a conference room and they didn't bring many materials, the odds are good the attorney is such a hoarder that they can't fit the both of you and the note taker in their office at the same time.)

As a preface, the attorney will usually give you a summary of the charged case and your role as a witness. They'll assure you that you only need to worry about telling the truth. The note taker will be staring at you and writing down every word. You might feel some pressure because the case might have been charged on your fraud examination and you could be the prosecutor's first and/or main witness in the trial.

The attorney will then ask you a dizzying array of questions beginning with your biography, including personal background, professional work experience and bona fides. They'll proceed to a point-by-point walk-through of the minutiae of your examination: the initial assignment to investigate, evidence-gathering and review, analysis of your case (including any and all spreadsheets) and a report(s) of your findings.

Yes, all of this is mostly covered in your case submission, and it can take a long, long time. But the witness prep meeting is, in part, a dress rehearsal for the prosecutor's direct examination and your actual testimony without an entire courtroom full of people hanging on your every word. This meeting can also uncover heretofore unknown or overlooked relevant and discoverable information. It's better to learn that information in an out-of-court office setting than on the stand.

You might have to correct the attorney's misreading of a fact, document or other datum — the nature of which can sometimes be bone-crunchingly simple. This is often because of the brain-fry that holistic trial preparation can inflict on all who are involved in the process, especially the prosecutor. (I once spent five minutes convincing an attorney — one of the best I've ever worked with — that September 2008 did indeed come before May 2009. It wasn't easy.)

The attorney might inform you that a piece of information you uncovered in your examination won't be introduced or admitted at trial, and you can't mention it. And of course, that now red-hot piece of information will become the only thing you can think about.

The attorney might direct you to review a wall-sized link chart that looks like an exploded spider and that you had no hand in creating, but they want you to connect to your examination and be prepared to testify on it.

The attorney might ask you to review spreadsheets that are nothing like your prepared spreadsheets and then compare them to the documents they summarize and be prepared to testify to them.

The attorney might grill you on how you conducted your interviews, obtained your documents, why you didn't conduct other interviews or obtain other documents, etc. You might feel like the prosecutor is cross-examining you. Again, dress rehearsal, dress rehearsal. A fundamental tenet of a prosecutor's examination of a witness on the stand: An examining attorney shouldn't ask a question for which they don't know the answer. These sessions can help you and the prosecutor reduce or eliminate the unexpected when you're seated in the witness box, and you've taken the oath.

And finally … the meeting comes to an end. At least this one does. Depending on what spooled out, the attorney might give you a few "homework assignments," and a request for another prep session. And another. And another. These prep sessions can continue even after the trial has begun and can happen at some pretty freaky hours. Be prepared for that.

Be prepared too for the likelihood that, on the first day of trial, after all that Sturm und Drang, after all that homework and after all the rearranged appointments on your calendar … the case settles. Believe me when I tell you this: It's a good thing.

Well done, Ms. or Mr. CFE. Now back to work.

Annette Simmons-Brown, CFE, most recently was the senior paralegal at the Hennepin County Attorney's Office in Minneapolis, Minnesota. Her email address is: simmonsbrown22@msn.com.

Direct examination for lay witnesses

Direct examination is the initial questioning of a witness by the party that called the witness (in adversarial jurisdictions) or the judge (in inquisitorial jurisdictions). Most of the time, direct examination is a nonconfrontational questioning aimed at exposing the facts and issues of the case. It’s usually not as treacherous as cross-examination in which opposing parties challenge the witness’s testimony but still requires a good strategy for answering questions, knowledge of the case and self-awareness.

When a fraud examiner testifies as a fact witness, the direct examination generally proceeds from setting a background — who the witness is and the person’s relation to the case — to establishing the witness’ personal knowledge of the relevant material. Nonexpert witnesses must have some firsthand mental or sensory impression on which to base testimony. They generally can’t discuss things they’ve only heard about or surmised. Conversations may be admissible but only if details can be fully established such as who participated, where and when the conversation took place, and so on.

To be allowed, a conversation has to show relevance to the proceedings. However, those inquisitorial jurisdictions tend to be less restrictive as to what testimony is allowed than adversarial jurisdictions.

As with an interview, the questions put to a witness can be broadly categorized as open or closed.

Open questions ask for a detailed response: “What was it about the ledgers that made you call them ‘irregular’ in your report?” The witness offers a summary of the irregularities in his own words.

A closed question, conversely, asks for a direct answer: “Did you remark that the ledgers were in an ‘irregular’ state?” Closed questions are usually answered with yes or no, unless they’re aimed at extracting some particular piece of information. For example, the attorney might ask, “What was the word you used to describe the state of the ledgers?” The witness then replies, “I called them ‘irregular.’ ” A combination of open and closed questions is often used during direct examination.

The rules of courtroom communication put limits on the questions that can be offered to witnesses. While fact witnesses might answer open-ended questions, they aren’t usually allowed to answer narrative questions. That is, a fact witness might not be allowed to simply tell an extended series of events in their own words. People tend to ramble, straying into material that’s irrelevant to the proceedings, or even inadmissible under rules of evidence. Therefore, testimony must be elicited from witnesses in the question-and-answer format.

Adapted from the ACFE’s 2016 Fraud Examiners Manual, 2.1224 – 2.1225.