FRAUD EXAMINATION ALBRECHT, ALBRECHT, & ALBRECHT Legal Follow-Up Chapter 18

Learning Objectives 1.Identify aspects of the court system. 2.Understand the civil litigation process. 3.Understand the criminal litigation process. 4.Describe the nature of an expert witness.

Outline Typical State Court Organization – Explain. Highest Level Appellate Court 5-9 Judges Lower Trial Court Intermediate Appellate or Reviewing Court - 3 Judges per Panel Higher Trial Courts - Circuit Courts or Superior Courts Misdemeanors & Pre-trial issues < $10,000 Felonies & Cases Involving More Than $10,000 Appeal Lower Court Decisions

Outline Typical State Court Organization - Explain. Small Claims Court County or Municipal Court Juvenile Court Domestic Relations Court These Courts All Deal With Special Issues Housing Court Traffic Courts Criminal Courts Probate Court

Review Organization of Federal Courts. Supreme Court - 7 Justices U.S. Court of International Trade U.S. Claims Court U.S. Bankruptcy Court U.S. District Court U.S. Magistrates U.S. Administrative Agency U.S. Tax Court U.S. Court of Appeals 12 Circuits Enforce Federal Laws Appeal Lower Court Rulings Special Issues Criminal & Civil Cases Non-Bankruptcy & Non-Tax Frauds

What Legal Action Can be Taken for Fraud?

Why Don’t Organizations Take Legal Action? Too Expensive Too Time Consuming Too Embarrassing

Do All Cases Go to Trial? NO! Out of Court Settlements Plea Bargains CriminalCivil

Discuss Differences Between the 2 Court. Criminal  Violate Laws  Guilty “Beyond Reasonable Doubt”  Jail &/or Fines  Pay Restitution  Unanimous Jury Decision Civil  Violate Private Rights  Complaint Filed  Seeks Restitution  “Preponderance of Evidence”  Doesn’t Have to Be Unanimous

Describe the Civil Litigation Process. Investigation & Pleadings Discovery Motion Practice & Negotiations Trial & Appeal

Describe the Investigation & Pleadings Process.  Investigation gets the facts of fraud & amount of damages  Filing complaint with information from above  The court’s response = motion or answer, motion is objection – points to case’s weaknesses  Possible counter suit with counter claims

Define Discovery & Discuss. Attorneys try to find all the information they can about the other side’s case Time Consuming Expensive

Comment on:  Production Requests  Interrogatories  Requests for Admission  Subpoenas  Depositions  Motion Practice & Negotiation

What Happens During Trial & Appeal? 1.Judge & attorneys agree on ground rules 2.Decide if it will be a jury trial 3.During testimony judge determines issues of the law 4.Judge charges jury 5.Jury decides verdict 6.Motions 7.Judgment

Which Constitutional Relate to Criminal Trials? 4 th Unreasonable Search & Seizures Requires Probable Cause 6 th Jury Trial Public Defender Confront Witnesses Call Witnesses Speedy Trial 5 th Due Process Double Jeopardy Protection Protection from Self Incrimination

How Does the Criminal Process Work? 1.Investigate – gather evidence 2.Decide to prosecute – contact DA 3.Arrest warrant or summons issued 4.Preliminary hearing or Grand Jury arraignment 5.Discovery 6.Pretrial Motions 7.Trial & Appeal

Comment on & Discuss the Grand Jury. ● People ● Has right to Subpoena ● Defendants don't have to be notified ● Defense Attorneys can't be present in court ● Indictment does not convict

What May a Defendant Request & Obtain?  Copies of relevant statements by defenders in government possession  Copy of defendant’s prior record  Copies of documents, tests, expert witness’ reports or other evidence that will be used – If requested must do similar for prosecution  Copies of witnesses prior statements

How Do Expert Witnesses Differ from Fact or Character Witnesses?

What Do Expert Witnesses Do? 1.Study the facts 2.Prepare report of opinion 3.Be deposed by opposition attorney 4.Work with attorney to prepare for trail 5.Sit for direct examination

Review Dos & Don’ts at The Trial Listen & Concentrate On Questions Answer Questions Only Don’t Bluff, Say “I don’t Know” Appear Authoritative, credible Speak Loud Enough & Fast Enough To Be Comfortably Heard By The Jury, Don’t Get Too Technical

List Dos & Don’ts Of Cross Examination Don’t Lose Your Temper Don’t Argue or Quibble Don’t Become Hostile Don’t Answer Yes or No

Terms Match Enforces federal law, established by federal government State courts that try misdemeanors & pretrial issues Reviews lower court cases Federal court that only hears bankruptcy cases Lower Trial Court Federal Court Bankruptcy Court Appellate Court

Terms Match Attorneys try to find out information about other side’s case Hearing where defendant has charges read Pretrial hearing to decide if “probable cause” exists to charge defendant with a crime Court order requiring testimony or deposition Subpoena Discovery Preliminary Hearing Arraignment

Terms Match Sworn testimony before a trial Written statement given under oath Response to a complaint or pleading, or a request made to the judge Request the judge to dismiss claim Motion Motion for Dismissal Affidavit Deposition

Terms Match Plea does not contest charges or admit guilt Legal process to qualify as expert witness Judgments asked for in a civil case Negotiated pretrial agreement to resolve a legal dispute Nolo Contendere Voir Dire Settlement Remedy