I respect prosecutors, most of them at least. I had the fortunate opportunity to work with a number of terrific prosecutors. Most are intelligent, hard working and committed to doing the right thing. I recognize that there are times when a prosecutor crosses the line, and for those prosecutors, I have no sympathy. Whatever punishment they receive is usually well deserved. But a very high percentage of prosecutors are talented and highly ethical professionals.
Prosecutors undergo a unique training. They learn how to analyze, investigate and assess evidence. And they learn how to conduct a trial – meaning how to present evidence, argue inferences and ultimately persuade a jury. These skills are invaluable and unique.
In the private sector, prosecutors bring their unique talents to a number of important functions. Most importantly, they have an uncanny ability to conduct internal investigations, how to interview witnesses, review documents and analyze a case. The industry is now filled with former prosecutors who are leading sophisticated internal investigation practices, offering clients a unique set of talents when needed to investigate potential misconduct and report on their investigation to the board, senior management and possibly the government.
The importance of a prosecutor’s perspective and experience is even more significant today when it comes to companies conducting internal investigations in the hopes of receiving cooperation credit from the Justice Department. The Yates Memorandum calls for an internal investigation to focus on individual culpability, to collect all evidence relevant to assessing individual culpability, and to present such evidence and analysis to the government.
When investigating a case, prosecutors begin with a breakdown of the elements of a potential offense. It is the guidepost for prosecutors to use in investigating corporate misconduct. A prosecutor will assess the evidence against an individual by determining whether there is sufficient evidence to establish each of the elements of the offense.
Companies that are seeking cooperation credit need to use this framework to investigate and then assess a case for individual culpability. In my view, prosecutors have an advantage when working with a company and representing the company before the Justice Department. A former prosecutor knows the language, the perspective and the language typically used in reviewing an internal investigation and a potential case.
Prosecutors also have another advantage. They know how to ensure that an investigation stays focused. All too often I have seen internal investigations conducted by companies that veer off into unnecessary tangents and rabbit holes. Most prosecutors know how to avoid these traps and most have a good sense when to move from one area to the next.
I am sure my pro-prosecutor bias is unfair to those attorneys, including former public defenders/defense counsel and seasoned investigators, who are equally capable. I admit my favoritism and my promotion of my former colleagues.
However, companies would be well advised to seek the unique skill set I have highlighted above, whether in a prosecutor or a former public defender/defense counsel. Generalizations are often worth very little and I concede that there are individuals who do not necessarily fit the mold that I am discussing. My only point is that not all prior experience is equivalent when it comes to legal skills needed to conduct efficient and effective internal investigations.