The Clearbrief Team was thrilled to interview Emily C. Ward, Senior Associate in the Litigation Practice group of Smith Gambrell Russell LLP in Atlanta, Georgia. Her practice concentrates on white-collar defense and civil litigation including healthcare, business, and environmental litigation, as well as administrative and regulatory matters.
How did you find your way in the legal profession?
I stumbled into finding what I wanted to do. My parents, even as a high schooler, encouraged me to have all kinds of jobs. I was a baker, a mascot, I worked at Circuit City. I took a similar approach to lawyering. I didn’t know what kind of lawyer I wanted to be. I tried medical malpractice, perhaps because I’m a Grey’s Anatomy fan!
I fell in love with my firm before I fell in love with the work. The partners I work with now were originally with a small firm with a stellar reputation. I recall looking at the firm and initially thinking that I’m so underqualified. But I realized that these are the kinds of people I want to learn from. They were former federal prosecutors who introduced me to the idea of working on internal investigations. Someone told me once to “make myself indispensable.” So I did that by building my expertise in electronic discovery. I enjoy e-discovery because I really enjoy puzzles and crime solving. That expertise is a great asset as part of a legal team conducting internal investigations, which typically involve gathering all the relevant electronic documents.
How do you describe your practice, and what is unique about how you approach your work?
My practice consists of both civil and criminal litigation. However, 70% of my practice is white collar criminal defense. In the past two years, I’ve worked on a number of environmental criminal cases. I also really enjoy the administrative/regulatory side of defense such as helping nurses and doctors when they get in trouble with their licensing boards. My practice also includes representing children caught up in cyber bullying at school. In fact, I just finished helping a middle school child in juvenile court avoid what could have been a lifelong issue related to a cyberbullying incident.
My ability to connect on a human level with the people I represent is a unique skill of mine. Clients tell different stories when they connect with you as a person as opposed to just a lawyer. This connection allows me to break down walls and get the truth or seemingly irrelevant facts from the client. In the case of white collar defendants, many of them have been telling stories and framing their actions in a certain way for years. If I’m preparing them to make a plea, they have to be upfront about the mistakes they’ve made. It’s very valuable to the case if we can get to the point where they tell me the truth.
My work is not just confined to representing companies. I also represent individuals. I have to be able to listen and empathize with people, whether they are a blue-collar worker or the CFO of a Fortune 500 company. There’s a reason why we’re called counsellors-at-law; we have to be ready to counsel our clients.
What is the best tip you have for attorneys who are starting to work on internal investigations?
One of the first–and most important–things that I do after I’ve been retained is to go to the client’s office and talk to people on their home turf. I think this is a really effective way to wrap your mind around who they are and what they’re dealing with. People are more likely to open up to you in a place where they feel safe, even if there has been a raid or if they’ve just discovered a Ponzi scheme. The setting really matters. You can learn so much from visiting a company and speaking with their people that you can’t learn from solely reviewing emails, reading company policy, and making phone calls.
Sometimes I’m given a list of people to talk to by the General Counsel. But the GC may not know about other people who have valuable information. If I go in-person to the company, I can often ask around and figure out other key witnesses whom I need to talk to. Being physically present has paid surprising dividends at times, helping me realize there are more witnesses I wouldn’t otherwise have discovered, and revealing information that can guide the direction of my investigation.
How has Covid-19 impacted your ability to make those meaningful face-to-face connections?
For large investigations, it’s made it more difficult. Half the people are living at the beach and other people can’t come in even if they’re living nearby. But I have still found opportunities to meet with clients. I’ve done a lot of outdoor lunches, which allows us to talk face to face and build rapport. These in-person interactions allow me to show them documents that I’ve uncovered and ask them about their significance.
What are some of the first steps you recommend that a company should take in order to provide you with documents for your investigation? Any tips for helping companies keep costs under control during an internal investigation?
Firstly, it depends on what the investigation relates to. If you’re looking at a five year Ponzi scheme vs. one guy in the back doing something problematic for six months, the scope will be different.
Having a litigation hold in place is important as it ensures that relevant documents will remain intact as the investigation goes forward. I ask key witnesses about what happened to get a basic idea of the important facts such as the pertinent date range. Based on this information, I work with the company to gather some initial documentation that the company has in its emails and files within a narrow scope. That initial information I gather allows the client to identify a date range to pull the rest of the documents from the relevant witnesses, which can reduce the overall amount of processing needed, and ends up saving them a lot of money (as opposed to having the client pull every potential email under the sun initially, requiring a massive effort and cost for attorney review).
What are some of the practices that companies can do to ensure a smooth internal investigation?
Before anything bad happens, make sure that you have solid IT infrastructure. You don’t want to be in a situation where you have ten years of hard copy documents that haven’t been scanned. The endeavor of finding, assembling, and converting physical documents will overwhelm the company when a bad situation arises. By having good IT infrastructure and storing documents digitally, the company can save money because it will cost them way more to pay someone to quickly scan physical documents whenever the need for an investigation arises. You’d be surprised as to how many major companies lag in their digitization of company communications and materials that will someday need to be produced in an investigation.
How do you handle your interviews? What is the end work product that you provide to in-house counsel?
I tend to start with the key players. If the client sends me the ten most important documents, I’ll just talk to the key players about those documents in the first interview. By working this into my interview process, it makes the collection and review of the docs more efficient because I will learn about those documents from the most knowledgeable people. I tend to prefer doing two hour interviews here and there instead of one six hour interview. People are more open to multiple shorter interviews. I start by enquiring about the big picture in the initial interviews. I then go find relevant evidence and schedule follow-up interviews on the really discrete topics.
I usually set up a template of six- eight questions that I ask everybody. I generally get those questions from the GC who hired me. I do an interview memo for each individual based on this template. I find that is more helpful, especially eight months down the road, when you’re trying to remember who that person was and what they said.
During witness interviews, I take handwritten notes using an electronic notepad. If I want to connect with people, I can’t be hiding behind a large computer screen. I think it makes me seem less like a lawyer and more like just a person they’re talking to when I’m able to take handwritten notes.
I’ll save my interview notes in the client file, and then I’ll input them into Word to prepare the memos I submit to the client. Typically, I like to have a memo for each person. That way, instead of having to search through each interview note I can say, “Oh I talked to John Doe three times and it’s interesting that the story has changed.”
[Ed. Note: Do you write your witness notes this way? Click here to access a demo of how you can use Clearbrief’s Add Fact cite button to find the most relevant pages from 25 different witness interviews, to spot how their story has changed over time.]
I find it really helpful to go back and review my notes. Little things are going to get missed while you’re in the interview but you can pick up on them later. I look at the act of writing the memo and weaving together my impressions of the interviews as an important part of the investigation rather than a tedious task.
Do you have any tips for summarizing and shaping the investigation report given the massive amount of documents that arise in an internal investigation?
A typical white collar criminal investigation will involve a low end of 100,000 pages to review. There are some cases with more than a million. Instead of starting my document review at the very first document chronologically, I go right to the juicy stuff. Chances are, things fell apart in a two week period prior to an incident occurring or some sort of similarly short time period. By starting there and working backwards, I structure the investigation process and hone in on key details. I can’t do this for every matter, but I utilize this method whenever I can. This approach also helps me deliver a focused internal investigation summary for the company and the General Counsel.
How do you communicate with GCs during your investigation?
I try to be very efficient in terms of the amount of work product I give to the General Counsel and how often I communicate with the GC. While the situation their company is facing may be severe and scary, a large ten-page memo might not be what they’re looking for at every step of the investigation. If they just need an update, I give that to them instead of a long and detailed write up. I try to not create a lot of intermediate attorney work product, and instead create final investigation findings, outlining any corrective action recommended. You have to understand the needs of the client. I’m a business owner too and know that businesses want to be efficient. Just tell me what you need, why you need it, and what the next steps are. I’ll take over the rest.
If a case ultimately goes to litigation, how do you approach writing your pleadings?
For a summary judgment motion, I’ll usually write the argument first and then write the facts. The important part is to make a persuasive legal argument and then work backwards. Often, I spend the biggest chunk of time crafting the statement of facts. Something I’ve started to do more is mark where I need to insert a fact and go back later to find it. This method seems to be more efficient even though I still have to go find the facts. But again, I start with the argument. I start by explaining why my client should win.
