"How could you?!" - not an uncommon thing for me to hear among other professionals in the business of fighting fraud when I tell them I work criminal defense cases.
Admittedly, I struggled with the same issue the first time I was called by a defense attorney back in 2008. His client had been accused by a publicly traded company of stealing more than $5M in a sophisticated cash receipt theft scheme.
“The government is telling me she did it; she’s telling me she didn’t do it; the accountant’s report makes no sense, and I just need your help making heads or tails of all of this,” the well-known Portland criminal defense attorney told me.
Did I hear him correctly? He just wanted me to explain to him what all of the numbers meant?
After a follow-up meeting, I learned that was exactly what he wanted, an independent assessment of all of the information he had been provided.
When I was done with that case, I had to explain to him that it was my opinion that his client had stolen the money - there was no other explanation for the funds being in her bank accounts. I simplified the complicated report the government’s accountants had put together and walked him through the scheme, from how she billed the clients, to the funds being deposited to her accounts, to the write-off of the amounts on the company’s books.
What had been a complicated scheme was simplified for him. From there, he and his client could make informed decisions in determining how or whether to work with the United States Attorney to negotiate a plea deal.
I hate being the bearer of bad news, but he thanked me profusely for the work we did. And has proceeded to call me many times over the years for clients in similar predicaments.
In the nearly 10 years since that first case, I have been privileged to work dozens of criminal defense cases in local and federal courts.
“Privileged?” you may be thinking? Let me make my case:
1. Defense work makes you a better Plaintiff’s Expert
When you understand that your fraud examination report will be scrutinized by a suspect’s legal counsel, their own forensic accountant, and eventually a judge or jury, it makes you hyper-aware of the importance of using sufficient, relevant evidence to prove your case. In this vein, as an example, if you have financial transactions backed up by sufficient, relevant evidence to make a case of fraud, make it. However, if there are other transactions that are suspicious or questionable but you don’t have the same level of evidence for those transactions as you do for the others; don’t include them in your case.
What’s more, you will not always be the one presenting your report. Your fraud examination findings must stand on their own. As such, writing clear and concise reports is also critical to making your case.
2. Defense work doesn’t change your role
As a forensic accountant, my job is the same no matter who hires me. What do the documents and financial transactions say? How do I communicate that in a way that ensures decision makers (i.e. clients, lawyers, judges) can understand the facts and make informed decisions? When you see your role as the same no matter which “side” hires you, you can be confident in your ability to objectively perform your job.
This objectivity will also help you identify clients and/or counsel who may not have the same perspective as the defense attorneys I work with. I have met with unscrupulous lawyers who seem to already know what my opinions should be, before I even look at a document. Those are lawyers I don’t choose to do business with.
3. Avoid the Appearance of Bias
An expert who exclusively works for one “side” or the other can be accused of bias when on the witness stand. This is never a good place to be. Having a well-rounded practice can help an expert avoid appearances of bias.
4. Make a Difference
In the nearly ten years since I’ve worked defense cases, I’ve told many lawyers their clients are likely culpable of what they are being accused of. However, the work we’ve performed has also made significant differences in the outcomes of criminal cases:
Found significant facts relieving a defendant of criminal wrongdoing in a multi-million dollar criminal fraud matter. Charges were dropped.
Reduced a $3M alleged fraud loss to $1.5M, by analyzing more than 100,000 documents just days before a sentencing hearing.
Reduced an alleged Medicare billing scheme loss of more than $1.2M by proving more than $500,000 of the loss had been double and triple counted by government accountants. Our findings significantly reduced the incarceration time of the defendant from years to less than one year.
The premise of the United State criminal justice system is that a defendant is innocent until proven guilty. Too often, that “proof” is lacking or the proof is presented in a confusing or convoluted way. As a forensic accountant or fraud examiner, don’t be afraid to offer your services to Clarify the Complex™. Your client and their counsel will greatly appreciate it and you never know – you may very well change the trajectory of a criminal case.