How to perform well in adversarial proceedings

Anti-fraud professionals may need to testify at depositions, licensure hearings or occasional criminal trials, and this can be a stressful part of the job. For advice on performance improvement, FierceHealthPayer: Anti-Fraud spoke to Nabil Istafanous, J.D.

Istafanous (pictured) is a principal and healthcare practice leader at the Seattle-based law firm Corporate Counsel Solutions, PLLC. He has 18 years of experience working for health insurers in corporate integrity leadership roles and advising payers as legal counsel.

FierceHealthPayer: Anti-Fraud: How can special investigations unit analysts most effectively prepare to testify? Is practicing possible or helpful?

Nabil Istafanous: Adversarial proceedings are very formal venues with specific rules of evidence. In preparing for these proceedings, SIU professionals should seek help from competent, experienced counsel. If possible, SIU staff should seek advice from a lawyer familiar with the proceedings, their ground rules, whether formal rules of evidence apply and the types of questions an analyst may encounter. What might be a new experience for an SIU professional is often something experienced counsel has undergone many times.

It's helpful to prepare for these cases differently from the way SIU departments prepare for internal meetings or informal meetings with unrepresented providers. Experienced attorneys can provide preparation tips such as these: Just answer the questions asked. Don't speculate if you don't know the answer and try to respond concisely without elaborating or volunteering information that isn't necessary.

SIU professionals can practice answering questions out loud or in front of a mirror. If you practice answering likely questions, an experienced attorney can provide critiques on whether your answers are too long or too short. This can make SIU staff more effective in representing information uncovered in an investigation.

FHPAF: What can SIU professionals do to make a positive, credible impression as witnesses?

Istafanous: Be prepared. Know the facts and feel comfortable with all steps you conducted in the course of the investigation. Dress and act professionally. This isn't a time to be conversational; these are formal proceedings with real ramifications--particularly for the healthcare provider--and they should be treated as such.

But be yourself in a polished, professional sense. Don't offer opinions. Just provide the facts, be concise and come across as the expert you are.

FierceHealthPayer: Anti-Fraud: What are some mistakes and pitfalls involving depositions and court appearances that can hurt a case?

Nabil Istafanous: The worst mistake is not taking the proceedings seriously and not being prepared, forgetting the facts, for example, of an investigation conducted months ago and not coming across as having done your homework.

Another mistake is answering every question even when you don't know the answer. If you don't know the answer to a question, then say so. Another worst practice is when witnesses misrepresent the facts because they feel they must win, and in the course of the proceedings these misrepresentations are uncovered.

Finally, some witnesses appear extremely argumentative and one-sided and therefore aren't viewed as objective or credible. In cross examination, a skilled opposing lawyer will try to paint you as someone who isn't credible or can't be trusted or embellishes the facts to win as opposed to an objective witness seeking to uncover the truth. Your job is not to take the bait. Be even keeled, answer truthfully and don't argue with the opposing side. Present yourself as above the fray.

FHPAF: What important courtroom rules should SIU professionals should observe?

Istafanous: Every proceeding has a different set of rules depending on the venue and the kind of proceeding that it is. So get the advice of experienced counsel on what the ground rules are and then observe them. If your organization doesn't have the resources or budget to hire counsel experienced in the venue, then try to learn as much as you can on your own. Clerks who support the court or administrative tribunals can be helpful resources.

The tips for being a good, credible witness apply no matter what the proceeding is. Be prepared, don't speculate and recognize that simple answers--as opposed to elaborate explanations--are usually best.

FHPAF: Cases where a healthcare provider's medical license is on the line can become hostile. What should witnesses do if they're concerned about their safety coming and going from court?

Istafanous: While it's natural for people to be concerned about their safety, most of these cases aren't likely to result in any violence. Most providers aren't connected with violent or organized crime, and if they appear violent in court that could be the worst possible impression they want to leave with a judge or jury.

But if you face a credible threat, call the police and find out about seeking a restraining order so that if the provider approaches you, they're immediately in violation and can be prosecuted.

Remember that these are clearly high-stakes cases for providers. Their careers are on the line, and they may have family or friends who express anger at you. And you should expect that.

Try to tune out the noise associated with high-stakes cases and recall your purpose: You're there to serve an important public good, to get providers who ought not to be practicing medicine out of harm's way, and protect other patients and members.

FHPAF: What's the best way to manage performance anxiety (e.g., fears of making a mistake or not knowing the answer to a question)?

Istafanous: The best way I know to get over anxiety is to be over-prepared. Remember that you're the expert in the investigation.

Try to let go of the outcome to help reduce anxiety. Remember that these proceedings aren't a referendum on you, your career or your professionalism. Your job is not to win or lose the case but simply to provide the facts and trust the process.

And if you don't prevail, don't think of it as a failure; learn from it. Whatever the outcome is, take pride in the fact that you did your best.

Editor's Note: This interview has been edited and condensed for clarity.

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