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Pitfalls to Avoid When Filing a Qui Tam Case

1. Choose your attorney carefully.

  • Consider whether the lawyer has experience in qui tam lawsuits. The False Claims Act is a very complicated law, and a misinterpretation of its provisions could be harmful to your case.
  • False Claims Act cases can be very expensive. There are many out-of-pocket expenses, from the costs of filing papers to hiring consultants to do analyses and substantiate allegations. Make sure that your attorney has the resources to pursue qui tam cases. If your attorney's firm does not have other lawyers on staff that can work on your qui tam case, check about contingency plans to retain additional lawyers when necessary. Oftentimes a case requires the attention of multiple lawyers at the same time.
  • Make sure your attorney plans to play an active role in your qui tam lawsuit after the case has been filed. Since you are a party to the lawsuit, your attorney should expect to participate in and contribute to all plans of litigation.
  • Find out your attorney's record for working with government lawyers and investigators. The chances of a winning a case are much greater if the government joins it. The more closely a whistleblower and the whistleblower's attorney work with the government, the more likely it is that the case will be successful.
  • When choosing an attorney, don't base your decision on advertisements. Some lawyers promise big rewards but might not know the law and the qui tam process well enough to make that happen.
  • Make sure you hire an attorney who is looking out for your best interests and isn't taking the case to earn a referral fee by handing it off to another attorney.

2. Know which court would be best for filing your particular qui tam lawsuit.

  • A qui tam lawsuit may be filed in a number of jurisdictions. Various courts have interpreted key parts of the False Claims Act in different ways. These rulings should be taken into account when deciding where to file your qui tam lawsuit. The best forum for a particular qui tam lawsuit might be, for instance, the federal civil court closest to the defendant's headquarters rather than one closest to the defendant's facility.
  • Some U.S. attorneys have more experience investigating and pursuing certain types of qui tam lawsuits and more resources to do so than others do. Since the help and support of the federal government is generally essential for a successful case, whistleblowers and their counsel should consider the experience and the resources of the local U.S. attorney's office when deciding where to file a lawsuit.

3. Once you have evidence of fraud, act quickly.

  • A qui tam lawsuit can be dismissed if it is not the first one to make the allegations. It also can be dismissed if information about the fraud becomes public before the case is filed.
  • The False Claims Act limits the time in which a lawsuit can be filed. Generally lawsuits must be filed within six years of the date the fraud is committed, but under certain circumstances they can be filed within 10 years. The provision governing time limits is complicated, and some otherwise promising cases have been dismissed because of a court's interpretation of what time limit applies.

4. Do not discuss your lawsuit with anyone except your lawyer.

  • Qui tam lawsuits are filed under seal, meaning they are not available to the public. The seal is not lifted until after the federal government investigates the charges contained in a lawsuit and decides whether to intervene and the court orders the seal lifted.
  • Public discussion of your allegations may be harmful to your case. This includes posting any information about the case or your allegations to your Facebook or other social media page, blogging or tweeting about it. Please be aware that your privacy settings do not guarantee that information posted anywhere on the internet will not become public.

5. Be sure you want to file a lawsuit and know the potential consequences before you file it.

  • People take great personal and professional risks when they blow the whistle on fraud. It can be very stressful. But if the qui tam lawsuit is successful, the financial reward provisions of the False Claims Act can help compensate for the risks. Whistleblowing also can give a person great personal satisfaction at having stopped wrongdoing.
  • Before filing a qui tam lawsuit, be sure to discuss with your attorney both the pros and cons of doing so as well as how strong your case is and how likely you are to win. Filing a qui tam lawsuit sets in motion a government investigation that the whistleblower has no control over and won't be able to stop even if the lawsuit is dropped.
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