Photo of Stephen McConnell

We’ve been reminiscing often lately about our days as a federal prosecutor. Part of that is pure nostalgia. Part of it is wondering about the road not taken. Part of it is explaining to others why the show Billions is so crazily unrealistic.

The Covid-19 lockdown has sent us scurrying through the streaming services in a search for diversions. Finally, at long, reluctant last, we started watching the show that friends recommended but that we swore to ignore. We are not yet halfway through the Billions catalogue, and our mouth is frozen in a gape of horror. The U.S Attorney in that show is a bizarre, scheming, masochistic, amoral schlub. We worked for three U.S. Attorneys and they were all models of restraint, legal skill, and rectitude. They bore no resemblance to the Dracula on this show that reduces high-level law and finance to gutter trash.

But, yes, it is fun trash.


Back in our AUSA days, criminal defendants more often than not asserted their fifth amendment privilege against self-incrimination. They usually did not take the witness stand. Even though it is natural to wonder why an innocent person would not want to look the jurors in the eye and utter a loud denial of the accusations, the judge would instruct the jurors that they could not draw any adverse inference from the defendant’s decision to remain mum. Prosecutors get used to this modus vivendi. After all, it seems fair. Plus, we usually had oodles of other evidence to support a guilty verdict.

The rules are quite different in civil litigation. A defendant’s invocation of the fifth amendment right to remain silent usually will elicit the opposite jury instruction – that jurors can presume that the defendant’s answers would have been unfavorable to that defendant. We have to admit that our AUSA experiences made this outcome a bit surprising and we are still not fully reconciled to it.

But there are nuances.

One such nuance was well illustrated in the recent case of United States ex rel. Lokosky v. Acclarent, Inc., 2020 U.S. Dist. LEXIS 95404 (D.Mass. June 1, 2020). Lokosky was a civil case under the False Claims Act (the “ex rel. Lokosky” means that Lokosky was the relator who initiated the suit, ostensibly for the benefit of the republic). Lokosky has been a sales representative for a medical device company, and she claimed that her company fired her in retaliation for her efforts to halt off-label marketing that would have led to the filing of false reimbursement claims with the government.

To build her case, she submitted written questions to the company’s former CEO and Director of Sales. The ‘answers’ to those questions were mostly assertions of the fifth amendment. The relator wanted the court to allow an adverse inference to be drawn from those fifth amendment assertions. In a brief, but well-reasoned, opinion, the magistrate-judge refused such an inference.

The inference applies to parties, and these former employees were not parties. They had not been employed by the defendant company since 2011. There was no reason to believe the company exercised any control over them. They retained counsel independent of the case. The former employees did not seem to have any interest in the case, plus they had also asserted the fifth amendment in response to questions from the company.

The Lokosky court’s inquiry was fact-driven, rather than categorical. Based on the particular concatenation of facts in the case, the court could “not consider the adverse inferences to be worthy under all circumstances.”