To Prep or Not to Prep – To Mind or Not to Mind

Witness Preparation:

Everybody gives lip service to witness preparation but the reality is different.

There are two schools of thought about prepping (preparing) a witness for a criminal preliminary hearing, civil discovery or criminal or civil trial.

In a multi million dollar fraud trial recently, counsel’s idea of prep was to pat the corporate CEO witness on her shoulder and say “Don’t worry Dear, just tell the truth and you’ll be fine.”

 Not to Prep:

There are several reasons witnesses are not prepped:

1. The attorney or prosecutor doesn’t have the time or the interest in doing a basic job.

2. “The truth will out!” The attorney believes that a truthful witness will always be deemed as credible and if truthful, will give strategically important, clear, understandable  evidence.

3. Their buddy wrote their trial practice exam in law school and they really don’t understand the difference between prepping and coaching. They are terrified of putting words in the witness’s mouth and being accused of coaching.

4. The lawyer doesn’t understand the evidence, (accounting evidence etc.), that the witness will give and doesn’t want the witness to know how little they really understand the case.

5. They believe that opposing counsel is their friend and a good chap and will be fair in their questioning.

6. They worry that if they ask the client tough questions the client will think they don’t believe the client and the client won’t like them any more and their firm may lose the client.

7. They assign a PA to explain when and where to show up and the PA’s idea of how a trial works and go over the witnesses evidence, but not courtroom tactics. (Note: occasionally lawyer’s PAs are excellent at this, frequently not).

8. It doesn’t matter anyway, we’re all getting paid.

 To Prep:

1. Witnesses are under stress and frequently don’t understand the process at all. That stress is exacerbated if they have no real idea what happens.

2. The witness may not listen to the question, may answer a different question, ramble, get irritated, get angry, or think they can debate the issues with the Judge.

3. Witness often naively believe they are protected because their lawyer will forcefully object to inappropriate questions, like on TV, where they see witnesses on fencing with the evil opposing counsel, scoring a killer debating point, (opposing lawyer crushed – music resounds, cut to credits), and think this is how to do it.

Preparation alleviates the stress and mitigates the misconceptions of how the process works and what the role of the witness is.   A prepared witness knows what is going to happen, has an idea what they will be asked by both sides, understands how a witness should behave and has at least some idea of how to answer questions.

Even more importantly, the witnesses and the lawyer are both on the same page and the witnesses know what is and what is not expected of them.

IBIS is frequently asked to assist in preparing witnesses. When IBIS preps a witness for trial we do the following:

1. We act for the attorney so everything is privileged.  We get the specifics of the case from attorney, and the lawyer’s line of questions on the various topics.

2. If we are not already involved we research and prepare for the case as if it we were presenting the case.

3. We teach the witness about the Court process, exactly what happens every step of the way, sometimes take the client  on a road trip to a court in session, strategies for reducing stress, how to give a carefully thought out answer, how to be concise, how to handle personal attack questions, and how to handle the “What would you say if I said:” Would you agree with me that:”, How would you describe your feelings towards:” etc., questions.

4. We get the specifics of the evidence the witness will give, and frequently other information the lawyer didn’t know the witness had.  We determine if they and their lawyer are “on the same page”.

5. We ask them the lawyer’s questions and some of our own. We discuss their answers for clarity, conciseness etc.

6. We ask them the opposition questions, at a low key level, increasing the level until we are satisfied they are prepared. We then teach them how to handle the questions, but never what to say.

7. Budget permitting, IBIS stages an abbreviated, or a complete, mock trial with the witnesses and in some cases focus groups as the jury.

Prepping in a Criminal Case:

It is absolutely horrific to the cause of justice when the Prosecutor in a Criminal case does not prep a witness.

Sadly, in many cases it is not entirely the prosecutor’s fault. The prosecutor got the case that week or sometimes that day and often goes to the preliminary hearings or to trial woefully unprepared themselves because they have not had the time or the initiative to review or understand the case.

Minding witnesses:

Most often, witness are simply told the time and address of the court and told to show up and wait.  Other than that they are on their own.

In the hallway outside the court room, witness do not have anyone with them because: the lawyer doesn’t think of it, if he does he may ask his Junior to check on them before court and show them where the bathroom is and that’s it; there is a perception that budget won’t permit it; if the witness has been served a subpoena, there is no need, they have to be there; or if the witness thinks they need support they can call a friend.

The witness can be left sitting outside a court room for hours in the morning, nodded to by a distracted lawyer rushing past at the lunch break, left again for hours in the afternoon, then told to come back tomorrow, or next week. This can result in unpleasant surprises for the lawyer. At best calling an irritated, unhappy and so thoroughly disgruntled witness that they have forgotten half of their evidence. At worst, a witness who has gotten so disgruntled they have simply left and gone home, never to return barring obtaining an arrest warrant for the lawyer’s own up to that point “friendly” witness, which is unlikely.

Bringing a friend for support:

Witnesses often bring a friend for “support”. Unfortunately the friend is almost always unfamiliar with the process, is angry that their friend is in this position, can be more emotionally involved than the witness), wants to tell the lawyer what to say, wants to “give a piece of their mind” to the opposing parties, (sometimes to the judge) and only creates much more stress for the witness.

An IBIS minder is calmly but positively supportive. The IBIS Minder:

• Picks the witness up to make sure they show up in court when they are supposed to;

• Explains the process as it goes along;

• Explains the excruciating delays;

• Ensures that the witness doesn’t get so nervous or fed up sitting outside the court room that they bolt for the door;

• Keeps the witness calm;

• Takes the witness for lunch;

• Ensures the witness doesn’t have a liquid lunch;

• Keeps the witness away from the opposing parties or the opposing parties’ friends, etc;

• Keeps the witness away from the press;

• Gets the witness home after court;

• Gives a witness, who may have to wait for days, a 24 hour number if they need to talk at 2:00 AM.

This blog was written as a result of witnessing all the things that can go wrong and our successes in keeping those problems from happening. I am sure all the lawyers reading this have their own horror stories, and remember, no-one gets up one morning and says: “I would just love to be a witness in a highly contentious case”.

When Private Eyes Go Bad

Justice has been served in the USA. – Two Canadian private investigators who had a booming, but fraudulent business tracing hidden assets have been convicted of money laundering in the US. They are also facing fraud charges in Canada.

They are in now doing 5 + years apiece in Federal prison in the US.  – Fantastic!

Court documents described how the pair was paid to do “sweeps and searches of the world financial system’s wire transfer clearinghouses.” In Canada they have been charged with bilking vulnerable spouses involved in divorce proceedings out of millions of dollars.

Their clients paid a fee that often started fairly low, sometimes only $2000.00 but then the fees quickly escalated into higher and higher payments, in some cases fees of $250,000.00 were paid as “reports” of hidden wealth came in.  Victims were told that millions of dollars had been hidden by their spouses in offshore accounts in exotic jurisdictions.

Unfortunately, of course, as the funds were located in a hidden account in one jurisdiction, it was always just after the money had been moved to another jurisdiction, naturally, necessitating more fees to go on to the next tax haven, then the next and the next.  From Toronto to the Bahamas, to the Channel Islands, to Hong Kong, to Macao, to Dubai to Switzerland and on and on until the victims ran out of money.

Victims were told that the very next step, (more money please), would uncover the funds, but, like the proverbial “will-o-the-wisp” always just out of reach as the victims were led farther and farther astray.

It was a classic case of “I want to believe.” Divorcing spouses jumped at the chance to “buy into” these reports of vast wealth hidden offshore. 

Why did people, especially professionals like lawyers and accountants believe that the pair had such fantastic inside knowledge?

Well, Johnson and White did have “good backgrounds,” White formerly worked for one of the big accounting firms in downtown Toronto. Johnson was an ex-police Detective Sergeant, a former aide to the chief of police no less. They were also licensed Private Investigators and the Private investigation industry is well regulated in Ontario.

Note: eventually the over-worked and understaffed licensing people in Ontario pulled their Private Investigator and their company licenses in Ontario, but by that time White and Johnson had set up a business in Panama doing the same thing and out of Ontario’s jurisdiction. They simply changed the office address on their website to offshore and it was business as usual.

Their clients were fed a variety of “explanations”, that the two PI’s had special access to bank clearing houses, secret banking sources and an informant in FINTRAC. 

The pair was first introduced to IBIS by a retired very senior RCMP officer. The retired officer suggested that IBIS use the pair for IBIS bank investigations abroad and raved about their capabilities and access to sources.  He should have known better!

Now, IBIS actually does real domestic and international asset searches.  We do legal asset searches, meticulous tracing that can be documented, backed up with genuine paperwork, funds that can be located with Anton Piller orders and frozen with Mareva Injunctions and other asset freezing actions.

These searches are expensive and time consuming and there are no in advance guarantees.  We are good, but we are not omniscient.

Also, many IBIS people actually worked for government intelligence agencies in former lives.  We know how difficult it can be, for even a huge government organization with immense resources, thousands of employees and all the money in the world, to trace the assets of high profile dictators, much less those of some husband with a couple of million stashed somewhere anonymously.

We took one look at the wild claims of secret bank clearing house access, sources in FINTRAC, (never mind that FINTRAC procedures don’t work that way), and other secret world banking sources and took a pass. Like a lot of things that IBIS receives on a daily basis, the whole thing just didn’t pass the sniff test.  It sounded goofy.  We said: “Thanks, but no thanks” and forgot about them.

Fast forward to 2008.

Some lawyers and some accountants were suspicious of these claims, not just the lawyers that were acting for the defendants, that is, the people that Johnson and White were accusing of having hidden assets, but lawyers who were working for the Plaintiffs, those spouses who hired Johnson and White in the first place.

IBIS was approached by law firms and law firms acting for law firms.  These clients were suspicious of the claims of international bank accounts, always just beyond grasp.  This was particularly in view of the fact that many of the spouses alleged to have secret hordes, had never had that much money in total in their entire working lives, nor any way such as inheritances, bribes or lotto wins to come by it. They certainly did not appear to have any access to huge amounts of excess cash to hide on Caribbean islands. 

IBIS was asked for a second opinion. We were provided with copies of bank statements, bank account numbers, Swift transfers and other wire transfer documents that Johnson and White produced and used to convince the victims and their lawyers. Where required, the accused persons provided authorizations for IBIS to investigate their accounts.

In every single case we checked, the claims were entirely fictitious, made up from the start.  The alleged bank accounts didn’t exist. The account numbers were random; some didn’t even match the numbering systems of the banks concerned.

The wire transfers never happened, the bank statements and transaction records were all fakes.

We have been Private Investigators, and licensed in various jurisdictions in Canada and the US since 1976.  IBIS believes that Private Investigators should be held to a higher standard than average citizens. Clients come to us for help. We are licensed to do the work.  We are in a position of trust and we frequently see people at their most vulnerable and are supposed to look after our clients and tell them the truth, not lie to them and defraud them. Private Investigators like Johnson and White bring the entire profession into disrepute.

IBIS applauds those courageous lawyers and accountants who were conscientious enough to stand up and say: “Just a minute!” when faced with “too good to be true” claims, even though in many cases their own clients were aggressively desperate to believe the fairy tales.

Some called IBIS – some called the cops.

The pair eventually fled to the Caribbean. 

Johnson and White hurt a lot of people. 

They are now doing time in the USA. 

It looks good on them.

Other stories on this topic can be found in the Toronto Star.

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