Although many FCA cases are filed annually, trials are rare due to frequent settlements. However, the FCA’s growing scope, encompassing areas like PPP loans, cybersecurity, telehealth, and customs, alongside traditional healthcare and procurement, hints at more upcoming trials. The now-confirmed subjective scienter standard means cases will be highly fact-specific, leading to more trials for determining the truth, making this trial advocacy refresher a can’t miss opportunity. Discussion topics include:

• Contrasting how evidence is weighed differently at trial versus during the government’s investigation
  • What discussions remain protected as privileged and what discussions or communications can be used at trial?
• Unpacking retrospective insights from appellate counsel: the unanticipated ways that investigative efforts and first instance pleadings harm or help the case on appeal
• Preparing the right jury instructions for complicated topics like scienter and recoveries
• Considering the use of experts