After 35 years of dealing with civil, regulatory, and federal criminal investigations (both as a federal prosecutor and as a civil and criminal defense attorney), I realized understanding the judicial process and mapping out a plan before mistakes are made can be the difference between success and failure. If mistakes are made on the front end, it may be detrimental to a person’s career or a company’s solvency. Earlier, I provided the top ten mistakes frequently made with suggestions on how to avoid them. We’ve covered the First Commandment, so let’s move on to Commandment #2:
Don’t Panic: Be Calm. And Don’t Self-Medicate!
For a person who has never dealt with law enforcement, a knock at the door from an officer flashing his or her badge can be a traumatic experience in and of itself. Keep in mind that the investigator/cop may be there not to execute a search warrant or serve an arrest warrant but instead just to ask questions. Regardless of whether it is a search warrant, an arrest warrant, or an interrogation, the corporate citizen should remain calm and avoid saying or doing something that he or she may regret later. Later in this series, we’ll address what if anything should be said on that first visit.
But again Commandment #2 is BE CALM.
Keep in mind Investigators are trained to get answers and at the same time to watch for physical and verbal cues. An overreaction may be a sign to the investigator that you have something to hide. If the Officer would like to ask questions, you should first ask the investigator some questions before you start answering questions. Feel free to ask follow up questions based on the response to gain information so you can make informed decisions on what to do/not do next. The best thing to do is to patiently listen to the Investigator’s explanation as to why the Investigator is there. If he or she is there just to leave a subpoena to appear before the grand jury, to produce records or to deliver a Civil Complaint, accept the delivery and call an attorney. Ask if it is a civil or criminal investigation, what the investigation involves and if you are a witness, subject or target of the investigation (those are meaningful titles in the federal system). If the officer refuses to answer simple questions or if you are too nervous to even ask them, explain to the Officer that you have never been through this kind of situation and that you would like to first speak to an attorney. And above all if you do speak, tell the truth. We’ll discuss more about it later, but remember it is better to remain silent than to lie even about little things. And one final suggestion: one of the worst decisions you can make when you panic is to self-medicate. Avoid the temptation to head to the bar for a night of drinking or to take a couple of extra pills to get you through the day or night. Self-medication is the absolute worst thing to do. It impairs your judgment and if taken to an extreme it can cause irreparable harm to your health. Remember: Don’t Panic. Be Calm. And Don’t Self-Medicate!