As a starting point, you should understand that communications with your lawyer are privileged. That means what you say to your whistleblower attorney—with limited exceptions—cannot be disclosed. You should ask your lawyer about the attorney-client privilege and when it applies. For example, if you bring a friend to a meeting with your lawyer, anything said during the meeting with the whistleblower lawyer may not be privileged because someone outside the orbit of the attorney-client relationship was inside the room. The attorney-client privilege is something you should discuss with your lawyer.
Whistleblower lawyers work either by themselves or with others in their law firm. It is reasonable for you to ask (the lawyer who you first made contact with) which other whistleblower lawyers will be working on your case. It is also reasonable to ask for their qualifications or sometimes you can look at their qualifications which are posted on a firm website or provided in a resume. Do not be afraid to ask your whistleblower lawyers any of these questions before you decide to start the process of bringing a whistleblower case.
If your case is a false claims case, your whistleblower lawyers will typically spend time debriefing you of the facts. This should be done in person. You should be concerned if your lawyer suggests that it is appropriate to file a case when they have not met your personally. This is perhaps a common sense perspective, but bringing a whistleblower case is a serious topic and there may be one or more meetings where you are debriefed. These meetings can take several hours.
You may have documents that support your claims. Before bringing a whistleblower case, the whistleblower lawyers may want to review these documents with you.
During the debriefing process, you should feel free to ask questions. It is important for you to know where this process will take you and what the lawyers expect of you.
Your whistleblower case, or false claims lawsuit, will start with the filing of what is known as a complaint. The complaint is filed in a court of law. Cases involving the Federal False Claims Act are filed in federal court. Sometimes a case involving the Federal False Claims Act can also involve parallel claims under state and municipal false claims acts. These cases are often consolidated in one lawsuit and filed in federal court. Where the claim only involves state money, the case will generally be filed in a state court.
The complaint will lay out all the facts and conclude with a request for relief from the court. It is important that you read the complaint carefully before it is filed. This is your lawsuit and it is important that your whistleblower lawyers communicate the facts that you have uncovered.
Before bringing a whistleblower case, your whistleblower lawyers will prepare a disclosure statement. The disclosure statement will contain the facts that you have uncovered, list the witnesses, and enclose the documents that support your allegations. The disclosure statement does not get filed in court. It is given to government lawyers and investigators who will use it as a roadmap for their investigation of your claims.
Once the disclosure statement is transmitted to the Government, the lawyers will then proceed to file the complaint.
False claims lawsuits are filed under seal. This means that once they are filed in a court of law, the record is sealed and only the judge and government officials know about the case. While the law generally requires a sixty-day seal, many cases remain sealed for months and sometimes years. During this period of time, you cannot discuss the case with anyone but your lawyers and government officials. The defendant will not even know about the case. The Government will use the seal period to interview witnesses, collect documents from government agencies, and collect documents from the defendant.
Early on in the seal period, the Government will also request a meeting with you. Your whistleblower lawyers will be there with you. The purpose of the meeting is to find out what you know and for you to explain your case. The government lawyers will ask you about your disclosure statement and your complaint. They may review these documents paragraph by paragraph with you. This is why it is important for you to have read these documents before they were put into final form and presented to the Government or the court. The government lawyers and investigators may also ask you about the documents you attached to the disclosure statement or witnesses that you identified. They may ask where the witnesses can be found, what they know about your allegations, or whether they are likely to tell the truth.
The government lawyers and investigators may come back to your whistleblower lawyers after the initial meeting—while the case is under seal—and ask questions about your case. Sometimes these are questions that you can answer and sometimes they involve questions about how your lawyers see the law. Your lawyers should be prepared to respond to the Government by providing legal analysis, document review, or whatever resources are necessary to assist the Government in its investigation. Often, the Government will place a document subpoena on the defendant that will require the review of thousands of documents. The Government may ask your lawyers to help in the review and your lawyers should have the staff to accommodate the Government.
After the Government has had an opportunity to investigate your case, it will make a determination as to whether to intervene in the case. Intervention means that the Government will get involved in your case and assume primary responsibility for litigating and trying the case. Many times the Government will not intervene in a case. This means that your lawyers must litigate the case without the assistance of the Government. Depending on the progression of the case, the Government may decide at a later date to intervene.
After the decision on intervention is made, the Government will notify the court and the seal will be lifted. Once the seal is lifted, the case becomes a matter of public record and the complaint is served on the defendant. The court will set a schedule for the progression of the case.
Often, defendants will respond to a complaint with a motion to dismiss. This means that they will ask the court to dismiss the case because the court may lack jurisdiction or because even if the allegations are true, they do not amount to a violation of the law. A court may lack jurisdiction in a false claims case if the case was based on publicly disclosed information or barred by other provisions of the statute. A court could also dismiss a complaint if it is not pled or put together with specificity.
If the defendant does not file a motion to dismiss, it may simply answer the complaint by admitting or denying each of the paragraphs in the complaint. The case will progress to discovery, which means that documents will be exchanged, depositions will be taken, experts will be named, and ultimately the parties will present motions to the judge—known as summary judgment motions—which will allow for a resolution of all or certain portions of the complaint that are not in dispute.
Assuming that there are matters to be resolved by trial, the court will set a trial date and a trial will occur. A trial means that witnesses are called, documents are submitted into evidence, and the jury ultimately renders a decision. A trial has the following progression. First, each side makes an opening statement that outlines the basic facts. The opening statement is like the cover of the box of a jigsaw puzzle. It tells you where the pieces will fit. (It is not meant to be an argument; that is reserved for closing.) The pieces are called “evidence” which can come in the form of testimony or documents. Second, your side will have an opportunity to call witnesses. For each witness you call, the defense will have an opportunity to cross-examine the witness. Your lawyers will have an opportunity to conduct a re-direct examination of each witness and the defense can of course re-cross. Third, during your case, you will introduce as exhibits the documents that support your claims. Fourth, you may ask the court to receive into evidence the deposition testimony of certain officials of the defendant. Fifth, after your case rests, the defense will have an opportunity to call witnesses and of course introduce documents. Keep in mind that any parties can introduce documents during the time that the record is open, but it is important that your lawyers introduce the evidence necessary to prove your case at the time your case is put on. Finally, once each side puts on their witnesses, closing arguments are made, the jury is instructed, and a verdict is rendered.
One important point to note is that after your case is concluded, and before the defendant puts on its case, the defendant will have the opportunity to ask the court for a directed verdict. A directed verdict occurs when the court determines that all of the evidence that the plaintiff put on could not possibly amount to a finding by the jury of liability.
Of course, many cases get resolved before trial. This occurs through a settlement. The litigation process, which includes the exchange of documents and depositions, is designed to provide enough information to each party so that the risk at trial can be assessed. This process has proven successful in eliminating the need for ultimate adjudication because many cases settle. It is critically important to understand that lawyers and their clients should not count on a case settling. Cases need to be prepared and pursued with the understanding that they will be tried.