Sick of fraud and ready to blow the whistle? I’m a lawyer who represents
whistleblowers in qui tam and False Claims Act cases, and I’ve compiled
a list of ten things that will help you make your case stronger. Today
I want to talk about two factors that are very important because
these two areas are ones where you can make the greatest impact on whether
the Government takes your case.
Earlier I wrote about
Why You Want the Government to Love Your Whistleblower Case, and in my last blog entry I covered two of the factors that can make
the Government interested in your case: the dollar value of what the Government
lost because of the fraud and the harm the fraud caused to individuals.
Today I want to talk about two more important factors: the evidence you
have about the fraud and the effort your attorney and you put into simplifying
the case and making it easy for the Government to prosecute.
Factor 3. Great Evidence.
You can have a strong False Claims Act whistleblower case even if no individuals
were harmed other than by their taxes. In fact, you can have a great case
if your case is missing many of the factors I am talking about in these
blog entries – but
you cannot have a case at all without evidence.
A case can be emotionally compelling and potentially worth hundreds of
millions of dollars, but it still will be a dud if the Government lawyers
and your whistleblower attorney get to court and they have no evidence
to present. Evidence is the linchpin of any lawsuit, and without it, the
jury that hears your case will not be able to conclude that fraud happened,
much less what the damages are. So with good reason, the United States
attorney and the Department of Justice lawyers will be looking hard at
your evidence to see whether it will be strong enough to carry the case in court.
When I meet with a new whistleblower client, I start talking about evidence
right away. My goal is to help the client identify evidence that he may
not even realize he had. Did the defense contractor put out a sample timesheet
showing employees how to overbill? Are there emails or memos that we can
use to prove fraud occurred? Do the billing records show that the doctor
“performed surgery” – even though he was out of town
at the time? Does the surgery schedule show that it would be impossible
to perform as many surgeries as the doctor claims he performed?
The evidence will differ with every case, which is one of the things I
love about being a whistleblower lawyer – it’s always interesting!
But one thing remains constant – to be a whistleblower, you must
have evidence of the fraud.
4. Make It Easy.
Government attorneys have a large selection of cases from which to choose.
Probably the single most important thing your attorney can do to increase
the chances of getting the Government to take your case is to make it
simple and easy to understand.
You bring a lot to the table: you have evidence, insider information and
knowledge, and you already know the rules and regulations that apply in
your industry. The problem is taking your insider knowledge about the
industry, how the contracts work, what the customs are, and the slew of
acronyms -- and making it into something that is easy to explain to a
judge, to Government lawyers who are not in the industry, and ultimately
to 12 lay people on a jury.
When it assesses the case, the Government needs to see that you can put
together a clear, easy-to-understand explanation of what the defendant
did wrong, why it was wrong, and how the defendant has been getting away
with it. The Government lawyers who review your case will talk to the
agency involved, but they themselves are not insiders. If your case is
too hard to understand, they will skip to the next one.