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Criminal Defence Lawyer in Sole Practice - Ask Me Anything

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I have heard that crim firms hire very few articling students... are there particular factors (everyone did a crim clinic/intensive; everyone had a mooting award; everyone had previously summered in a crim-related job etc) that you think dominated the cohort of crim firm articling students?

 

Of course I'm happy to let providence or anyone else reply. But I think you're probably not thinking on the proper scale if you are asking about "cohorts" of articling students, even at larger firms. Remember that a "large" criminal defence firm might be a dozen lawyers. If a firm consistently has even one or two students at all times that's a lot. The notion of a "cohort" of students anywhere is basically a mistake.

 

Although others may differ, I cannot possibly imagine that the things you'd be likely to see in a student employed by a "large" crim firm would be different from the things you'd see in a student employed by a sole. So, yes, relevant clinical work, good marks in related courses, a relevant moot, I suppose (though personally, I happen to not put a lot of stock in mooting - personal bias) and if you have any related experience, that's great.

 

Also, I'm not sure if this was an implicit part of your question or not, but don't assume that articling at a "large" defence firm represents the best possible position or experience. Many of the top lawyers in our game operate in very small practices. For example, probably the biggest name in the field is Brian Greenspan. Here's a link to his firm. Six lawyers, in total. I believe that's three partners and three associates, though it isn't obvious from the bios. Regardless, articling with Brian Greenspan would represent the sort of opportunity that most students would give a limb for. But it's hardly a "large" firm. And I can't imagine they have more than one student per year.

 

Hope that helps.

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Of course I'm happy to let providence or anyone else reply. But I think you're probably not thinking on the proper scale if you are asking about "cohorts" of articling students, even at larger firms. Remember that a "large" criminal defence firm might be a dozen lawyers. If a firm consistently has even one or two students at all times that's a lot. The notion of a "cohort" of students anywhere is basically a mistake.

 

Although others may differ, I cannot possibly imagine that the things you'd be likely to see in a student employed by a "large" crim firm would be different from the things you'd see in a student employed by a sole. So, yes, relevant clinical work, good marks in related courses, a relevant moot, I suppose (though personally, I happen to not put a lot of stock in mooting - personal bias) and if you have any related experience, that's great.

 

Also, I'm not sure if this was an implicit part of your question or not, but don't assume that articling at a "large" defence firm represents the best possible position or experience. Many of the top lawyers in our game operate in very small practices. For example, probably the biggest name in the field is Brian Greenspan. Here's a link to his firm. Six lawyers, in total. I believe that's three partners and three associates, though it isn't obvious from the bios. Regardless, articling with Brian Greenspan would represent the sort of opportunity that most students would give a limb for. But it's hardly a "large" firm. And I can't imagine they have more than one student per year.

 

Hope that helps.

 

Thanks! I guess "cohort" is a bit optimistic. Out of curiosity, what's the reason for your bias against mooting?

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Thanks! I guess "cohort" is a bit optimistic. Out of curiosity, what's the reason for your bias against mooting?

 

I just hate play pretend anything. I'd rather someone who has met with, like, one real client than someone who has elaborately prepared submissions in a fictitious case. Again, that's personal bias. That isn't to say I'll dismiss someone who as mooted. Only that I won't be impressed by it. A criminal moot would at least demonstrate real interest in the field (which is good) but I'd still rather a candidate who did a criminal rotation at a clinic.

 

To repeat, this is a personal bias. Everyone as them. The next lawyer (likely someone who had a good experience mooting) might feel completely the opposite.

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I have heard that crim firms hire very few articling students... are there particular factors (everyone did a crim clinic/intensive; everyone had a mooting award; everyone had previously summered in a crim-related job etc) that you think dominated the cohort of crim firm articling students?

If by "cohort" you mean the people in your year who articled in crim, there were several of us in my year.  Some were at Legal Aid, some were at "bigger" firms, ("bigger" is relative, as Diplock said),some were at small firms or with soles.  There was usually only one student per firm, maybe two at some of the "bigger" firms.  I articled at a bigger, more well-known shop.  

 

I would say that most of us had done clinic and crim-focussed courses in law school and had summered in crim firms, often the one we ultimately articled at.  Not everyone had mooted but some had.  I did moot, on the national level, and I did find it to be helpful, unlike Diplock.  The facts are totally artificial, but the process and the emotions are not.  Learning how to prep is relevant.  Plus the training you get is invaluable and most of your fellow students are not getting that.  Most crim lawyers are looking for students who are dedicated to and want careers in crim, not just doing it because they'll article anywhere.  They also want students who are comfortable with the work, the lifestyle, the types of clients, the social issues, etc.  Many of us also had volunteer and non-law or pre-law experience that would suggest we had people skills, were comfortable with diversity, were non-judgmental, aware of poverty etc.  

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I just hate play pretend anything. I'd rather someone who has met with, like, one real client than someone who has elaborately prepared submissions in a fictitious case. Again, that's personal bias. That isn't to say I'll dismiss someone who as mooted. Only that I won't be impressed by it. A criminal moot would at least demonstrate real interest in the field (which is good) but I'd still rather a candidate who did a criminal rotation at a clinic.

 

To repeat, this is a personal bias. Everyone as them. The next lawyer (likely someone who had a good experience mooting) might feel completely the opposite.

 

Both would be ideal - you've dealt with real clients and also proved your mettle in a fake trial.

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I just hate play pretend anything. I'd rather someone who has met with, like, one real client than someone who has elaborately prepared submissions in a fictitious case. Again, that's personal bias. That isn't to say I'll dismiss someone who as mooted. Only that I won't be impressed by it. A criminal moot would at least demonstrate real interest in the field (which is good) but I'd still rather a candidate who did a criminal rotation at a clinic.

 

I agree. A moot can set up dangerous idea of things going smoothly which is very rare. I personally found clinic work imporant because it show just how erratic clients can be in part from have to deal with these issue in the system for years and to be perpared and think on your feet more so then a moot 

.

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Sorry if this has been answered but can you explain how Listserve works and how often other counsel post agency matters..

 

I am a new call thinking about signing up (So far the cases I have been getting are mostly about 45 mins to an hour drive away and I would love to pick up 1 or 2 agency matters to the courthouses I am going to - Oshawa/Kitchener)

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Sorry if this has been answered but can you explain how Listserve works and how often other counsel post agency matters..

 

I am a new call thinking about signing up (So far the cases I have been getting are mostly about 45 mins to an hour drive away and I would love to pick up 1 or 2 agency matters to the courthouses I am going to - Oshawa/Kitchener)

 

Well, you join the CLA, sign up for the listserv, and your email gets filled with random criminal defence lawyer chatter all day long. That's basically what a listserv is - sort of like this forum delivered right to your inbox. Though it's mercifully not quite that active.

 

You can all sorts of stuff over the listserv. Often questions of law - as in "anyone got a precedent for this" or else "I've got a client about to get sentenced for X, can anyone offer me some good precedents for light sentences?" Sometimes questions about judges ("I'm before Justice Snidebush - should I be worried?") or just general information stuff. Sometimes people ask stupid questions they could easily answer themselves. It's usually better than that. Sometimes news and current events, that touch on criminal defence work, come up. Sometimes it's just someone unloading some Raptors tickets. It's pretty Toronto-centric.

 

Now then. To your specific question, there are sometimes requests for agents, and sometimes people advertise where they intend to be (esp. if it's out of the way) in a bid to pick up agency work. I wouldn't expect a lot of that. It does happen, but you'll never make a business out of it. That said, the listserv is incredibly valuable as a resource - both so you can ask questions yourself and also just to audit and learn. It's an incredible community in defence work. The listserv alone probably won't make you much money. But being part of the community in a real way will pay huge dividends over time.

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Posted (edited)

Quick question. Have you ever been told you don't have the "personality" to be a criminal defence attorney? I ask this because I often hear people say stuff like "you don't have the personality/ attitude/ not extroverted enough" to actually practice as one. People seem to have a warped view of criminal defence attorneys and what they actually do and thats what I think leads to these kinds of questions.

Edited by PropJoe

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Posted (edited)

Quick question. Have you ever been told you don't have the "personality" to be a criminal defence attorney? I ask this because I often hear people say stuff like "you don't have the personality/ attitude/ not extroverted enough" to actually practice as one. People seem to have a warped view of criminal defence attorneys and what they actually do and thats what I think leads to these kinds of questions.

 

Have I ever been told that? No. But man, have you noticed what I'm like? I'm the kind of guy who tells people I'm a criminal defence lawyer and they're like "oh, yeah." It's like meeting the girl named Candi (with an "i") in the hot pink shorts. You try to pretend to be surprised when you find out she's a stripper. But you aren't, really.

 

So, to your larger question, there is a prototypical personality type for criminal defence lawyers and I can see why some people might be told they don't fit the mould. That said, there are a lot of ways to do this job and there's no one "right" personality. You need to be somewhat extroverted (even if it's forced, rather than natural) and you need to be self-motivated (no one else will do it for you) and you need a backbone so you can push back, potentially, against Crowns are who very senior to you as lawyers and sometimes even against judges. But apart from being willing and able to do the job, there's no specific demeanor or style you need to bring to it. You can be friendly and collegial or you can be snarly and grouchy. You can come across like a gentleman or a thug. There's room for both.

 

But yeah. Speaking personally, no one ever tells me I don't fit. It's more, why didn't I notice I was going to be a defence lawyer sooner? Could have saved some time. Maybe if my parents just named me Vinny or something. Same as the parents who name their daughter Candi. Say what you want about them, but at least they're giving her some direction in life.

Edited by Diplock
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Quick question. Have you ever been told you don't have the "personality" to be a criminal defence attorney? I ask this because I often hear people say stuff like "you don't have the personality/ attitude/ not extroverted enough" to actually practice as one. People seem to have a warped view of criminal defence attorneys and what they actually do and thats what I think leads to these kinds of questions.

 

You do generally need to have a certain attitude and be extroverted and have a bit of cockiness/ego at times when needed.  There are exceptions, or people who can turn it on when necessary, but for the most part, you do very much have to be a people person.  Knowing/reading people is essential both for building your business and dealing with witnesses on the stand, as well as dealing with and reading Crowns, judges, co-counsel etc.

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I know it's been said that many proceedings of a crimes committed do not go to trial, but in your experience , how many times have you been to trial?

 

Also, what are the biggest differences in plea negotiations and going to trial in regards to preparation, advocacy and persuasion, and negotiation?

 

Thanks.

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I know it's been said that many proceedings of a crimes committed do not go to trial, but in your experience , how many times have you been to trial?

 

Also, what are the biggest differences in plea negotiations and going to trial in regards to preparation, advocacy and persuasion, and negotiation?

 

Thanks.

 

Umm. Hmm.

 

I don't have absolute number of how many times I've been to trial. I really don't keep score that much. But I reliably have small trials scattered through my schedule, now, and a couple of longer ones coming up.

 

I don't know if I can answer your second question directly, but I'll try dancing around it and coming up with a meaningful reply. Good lawyers go to trial. You don't end up taking everything to trial, and there are very good reasons why you don't, very often. But you always need to be willing to go to trial. If you aren't, any deal with the Crown is going to suck. Sometimes your client is simply unwilling to go to trial and so they end up taking the sucky deal. That's on them, and I always explain why they can't get a better offer, and usually they accept that. But if it's the lawyer who isn't willing to go to trial, that lawyer is simply a dump truck, and isn't serving clients well.

 

I don't know that there's a meaningful difference between negotiation skills, advocacy, etc. when we're talking plea vs. trial. It's not even separable, really. It's all part of one big picture. The sort of deal that's available will be heavily influenced by the prospects at trial - how willing is the accused to take it that far, how interested is the Crown, and what might happen if you get there. You definitely don't prepare for a plea in the same way. You want a big picture view of the trial. You want enough to be able to say "if we go to trial, you're going to have a problem with X" (and to know "my client is going to have a problem with Y") but you don't need to fully flesh it out. The idea is good enough. With the trial actually looming, you need a far better grasp on the details.

 

I think the only last thing I want to say is that it's a mistake to believe that "persuasion" plays a large role - as in, it really isn't about saying "please, Mr. Crown, my client is a really good guy ... can't you get him a better deal?" Crowns have their own firm ideas of what they believe any particular situation deserves. You aren't going to "persuade" them that your idea of what's fair is superior to their own. It's more tactical. You put your client in the best position possible. That's all you can really do.

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What comes down is what is reasonable and what the client wants. If I have a deal in that area it may not be the best deal but I will seriously recommend it to my client

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What comes down is what is reasonable and what the client wants. If I have a deal in that area it may not be the best deal but I will seriously recommend it to my client

 

Agreed. And to put it in simple and blunt terms, we talk a lot about how being in custody can affect whether or not an accused person gets a trial at all. And it can. But I've also got clients who quite frankly can't seem to last twelve months on bail (roughly the amount of time it would take to get something from arrest to trial, assuming things go relatively well) without fucking it up. And that tends to push both the client, and my assessment, towards the importance of coming up with a plea deal. Because the deal won't get better six months from now, when that client has breached, is back in custody, and in addition to facing new charges can't even get bail anymore. In a case such as that, it would have been far better to plead out in the first place. It sucks, I know, but those are the realities we need to consider.

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I know it's been said that many proceedings of a crimes committed do not go to trial, but in your experience , how many times have you been to trial?

 

Also, what are the biggest differences in plea negotiations and going to trial in regards to preparation, advocacy and persuasion, and negotiation?

 

Thanks.

 

No idea how many times I've been to trial.  A lot.  Most months I have at least one trial, sometimes more.  Some months, there are none.  A lot more matters do settle than go to trial, but quite a few go to trial.

 

Re: question two.  You have to be just as prepared in the same way for plea negotiations and trial - that is, you have to know the file well - review/watch all witness statements and your client's statement, if applicable, review medical reports, expert reports (firearms, DNA, drugs seized.....), research the law on any issues that may come up, know your client's position on all of this, etc.  You never know if a matter is going to trial or not, so you need to be prepared.

 

Advocacy and persuasion are different in trial than plea negotiations because in trial, you are trying to convince a judge that the Crown has failed to prove its case beyond a reasonable doubt, which is a high standard, and you have three ways you can use to do that - cross-examination of their witnesses, examination of your own witnesses, and oral (or written) submissions on voir dires, evidentiary issues or your final submissions, all in open court.  In plea negotiations, you are trying to convince a Crown attorney that a particular outcome is reasonable and justifiable, and it's done in private off the record.  So you are pointing out the exigencies in their case to try to convince them that there is more risk and work in going to trial than in settling.

 

Trials won't have as much negotiation, since they are adversarial (though you may still negotiate agreed statements of facts and evidence that can go in by consent - you'll usually want to narrow the issues the judge will consider as much as you can) while plea discussions are all about negotiation - this is what the SCC or CA say are the sentencing guidelines, this is how you should balance the mitigating and aggravating factors, I'll agree to probation if you drop this charge, etc. etc. etc.

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Umm. Hmm.

 

I don't have absolute number of how many times I've been to trial. I really don't keep score that much. But I reliably have small trials scattered through my schedule, now, and a couple of longer ones coming up.

 

I don't know if I can answer your second question directly, but I'll try dancing around it and coming up with a meaningful reply. Good lawyers go to trial. You don't end up taking everything to trial, and there are very good reasons why you don't, very often. But you always need to be willing to go to trial. If you aren't, any deal with the Crown is going to suck. Sometimes your client is simply unwilling to go to trial and so they end up taking the sucky deal. That's on them, and I always explain why they can't get a better offer, and usually they accept that. But if it's the lawyer who isn't willing to go to trial, that lawyer is simply a dump truck, and isn't serving clients well.

 

I don't know that there's a meaningful difference between negotiation skills, advocacy, etc. when we're talking plea vs. trial. It's not even separable, really. It's all part of one big picture. The sort of deal that's available will be heavily influenced by the prospects at trial - how willing is the accused to take it that far, how interested is the Crown, and what might happen if you get there. You definitely don't prepare for a plea in the same way. You want a big picture view of the trial. You want enough to be able to say "if we go to trial, you're going to have a problem with X" (and to know "my client is going to have a problem with Y") but you don't need to fully flesh it out. The idea is good enough. With the trial actually looming, you need a far better grasp on the details.

 

I think the only last thing I want to say is that it's a mistake to believe that "persuasion" plays a large role - as in, it really isn't about saying "please, Mr. Crown, my client is a really good guy ... can't you get him a better deal?" Crowns have their own firm ideas of what they believe any particular situation deserves. You aren't going to "persuade" them that your idea of what's fair is superior to their own. It's more tactical. You put your client in the best position possible. That's all you can really do.

 

I absolutely think there is persuasion involved, especially in getting a Crown to take a plea to a lesser and included offence (ie. assault instead of aggravated assault or assault cause bodily harm, or forcible entry instead of break and enter.)  You wouldn't say "please, Mr Crown, my client is a really good guy..." but you would say, "if we run this trial, there's a good chance Judge X agrees with me that that was an illegal arrest and stays the whole thing, but my client wants to take responsibility and I'm offering a year long jail sentence on assault with a weapon.  You can put him on probation after and he'll be back if he breaches.  You're not getting 3 years for a guy with a limited record in front of Judge X." 

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I absolutely think there is persuasion involved, especially in getting a Crown to take a plea to a lesser and included offence (ie. assault instead of aggravated assault or assault cause bodily harm, or forcible entry instead of break and enter.)  You wouldn't say "please, Mr Crown, my client is a really good guy..." but you would say, "if we run this trial, there's a good chance Judge X agrees with me that that was an illegal arrest and stays the whole thing, but my client wants to take responsibility and I'm offering a year long jail sentence on assault with a weapon.  You can put him on probation after and he'll be back if he breaches.  You're not getting 3 years for a guy with a limited record in front of Judge X."

Good defence lawyers will say "Hey, you should take a close look at this file. I don't think you can prove Z".

 

Bad defence lawyers will beg, and plead, and whine in favour of their client.

 

Look, I'm busy, so I may well have not looked at a file closely enough. I fully appreciate someone telling me I should take a look at something. But I'm going to trust my own instincts, not yours. I already know the reputation of Judge X.

 

I mean - such whining may well work with a junior Crown. I've seen defence counsel bully junior Crowns into bad deals. But if your Crown knows what they're doing, you're just wasting your time.

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Posted (edited)

I don't think that Providence, MP, and I actually disagree much, here. But I think we are taking the word "persuasion" differently, in relation to a plea. Recently, as MP is using the word, I failed at persuasion because there was a Crown I badly needed to realize that his case was shit, and despite doing everything I could to draw his attention to the critical fucking problem with his file, he just never paid attention. As a result, we got all the way to trial and he withdrew the charge the morning of, when he reviewed evidence with his witness and finally realized that his witness couldn't say (and never had said) what he needed him to say. The Crown looked stupid. But my client also lived with bail far longer than required. It would have been better for both of us, and for the judicial system generally, had I "persuaded" the Crown to do his job properly at a sooner stage.

 

In context of this question, however, I was taking "persuasion" in the sense that most people use the word, since it was coming from a student not yet even in law school. I do have clients who expect that my ability to get results is not anchored at all in the facts of the case but rather in my ability to simply whine, beg, demand, or whatever it is they think I do. We have the talk, I tell then that we need to be willing to go to trial (if it comes to that) in order to get the best possible position from the Crown. Then they tell me that they are utterly unwilling to go to trial, but they don't like the deal the Crown is offering them, and they want me to get a better one. Then they review all the reasons they think they deserve a better deal (which are often points I made in the first place) and expect that I'm going to get that deal by asking the Crown again. That is "persuasion" in the minds of most people. Which is why I say that results are usually obtained tactically rather than rhetorically.

 

Here's an example that will appeal to the lawyers in this discussion. I recently had a case where the Crown was being fucking stubborn and not withdrawing a stupid offence they could probably prove but had very little reason to proceed with, other than to be dicks. It was an old charge, laid well after six months. And as a result, the Crown could only proceed summarily if we agreed. After advising my client as to what we were doing, and why, I declined to agree to proceed summarily, elected trial by judge and jury, and suggested I was ready to proceed with a preliminary inquiry. The Crown couldn't drop that shit fast enough. Now, as has been pointed out to me by several colleagues, you can't do that sort of thing often or lightly or you will cause yourself (and by extension, your clients) problems in the long run. But the Crown was being a douche so I was a douche right back. It worked. And not because I persuaded him that he was being unreasonable. I was never going to succeed at that. I just made it way, way, way more trouble than it was worth.

 

Anyway, the other truth is that there are as many ways of thinking about what we do as there are counsel. Even the conceptual framework that I deploy here may be different from Providence (and almost inevitably different from MP) and that's just fine. We can all be right simultaneously - in the sense that how we think of things works well for us and for our clients. That's the cool thing about this job. It's results oriented. If what you do gets results, it's good work by definition.

Edited by Diplock

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I'll leave this for Jr. Counsel: there are many cases in which a client risks nothing by having a trial. Many Crowns are unreasonable, and will take positions that one knows will not be accepted by the Court even if the Client were to lose a trial. Similarly, a Client with a minimal record (or no record) might be in a position where there's no realistic prospect of a custodial sentence after losing a trial. Although you can't force your client to go to trial, understand that cases fall apart for many reasons. It's not uncommon for a key witness not to show up. Or a Charter argument or evidentiary hole to become apparent after an officer sits down with the Crown to prep the case. And if the Crown is offering a Discharge on a plea, I think it would be a poor advocate who couldn't win that Discharge in open submissions post-verdict.

 

Some lawyers have built their business on guilty pleas. It's easier and more lucrative than running trials. Don't become one of those lawyers.

 

Also understand that in terms of negotiating with or "persuading" Crowns, there are Crowns who won't negotiate. They might not like you, they might not care, and they might not be able to listen. If they've been assigned the file, you're stuck. I've had many cases where Crown X won't even talk to me, and Crown Y drops the charges. Should I have yelled at the former Crown? Pounded my fists on his desk? Be smart about it and approach this profession like the chess game it is.

 

One final thing about Clients who don't want trials: we've discussed the subject on this board, and one has to accept that it's the Client's choice. Make sure, though, that if you believe you have a winner at trial, that choice is exercised as a last resort. You've advocated as strenuously as possible, but the Crown still won't accept that detaining your client at the roadside for 45 minutes prior to an ASD demand is a breach. That type of thing.

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