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Criminal Defence Lawyer in Sole Practice - Ask Me Anything

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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.

 

I don't think it's whining or bullying to point out the exigencies of a case and the risk to the Crown of proceeding.

 

I will say this: I have run several trials which really should have been pleas to lesser included offences.  At least, that was my opinion, but the Crown disagreed.  In every single one of them that I can recall, either the client was acquitted, or they were convicted of that lesser offence.  And in every single one where there was a conviction, the client got a shorter sentence than the one the Crown offered if they plead.  I cannot think of a single time where the client got more after trial than the Crown offered on plea.  And every time we discussed it, the Crown threatened more jail time after trial.  I am sure of this because I track those "stats" precisely so that when clients ask me what their real jeopardy is, I can tell them my track record (and yes, with the caveat that I cannot guarantee a result, this time could be different, etc. etc.)  

 

There are also many, many more times where I have negotiated ACBH from aggravated assault or unlawfully in a dwelling house from a home invasion or summary rather than indictable proceedings on firearms charges or a sentence that will allow a client avoid deportation, all of which serve the client's goals and make them very happy.

 

So I don't know if that makes me a good lawyer or a bad one, but that's how I operate.  I am never afraid to run the trial and am very willing to do so, but if the client wishes me to try to plead it down first, I will do that.  If the Crown doesn't bite, we're off to the races with nothing to lose.

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I don't think it's whining or bullying to point out the exigencies of a case and the risk to the Crown of proceeding.

 

Well you're assuming that your Crown is too stupid to know those things themselves.

 

Look, as a Crown we simply can't trust what defence tells us.  I remember as a very junior Crown, really one of my first days on the job, a defence lawyer comes up to me and says "This Over 80 charge is no good.  The second sample wasn't within the two hour window".  Thankfully I knew enough to say "But only the first sample has to be within two hours".  He was trying to flat out con me into dropping a perfectly good charge.

 

Or a second time, defence says "You have a problem with your file.  I'll tell you what it is if you undertake not to fix it.  I agreed.  The "problem" was that the date was out by one day on the information - which is easily covered by the "on or about" wording.  We continued.  In fact for some reason we had to lay a replacement information down the road, but I had to keep the incorrect date.  I can't remember what happened, but the date had nothing to do with it.

 

Defence counsel's job is, I guess, to make me think I have a problem.  But I absolutely have to decide that for myself.

 

If you think there's something I missed, by all means tell me about it.  I had such a situation just earlier this week.  Counsel said "Take a look at your file - I don't think you can prove possession".  And that was all they said.  I took a look and said "You're right - I can't prove possession".

 

Remember, it's been drilled into our heads that the Crown never wins or loses.  I have a trial this afternoon for robbery.  Defence is convinced it's only a theft, and has offered to plead to such repeatedly.  I think a robbery is made out (and the witness is adamant).  Maybe at the end of the day a theft is all the judge finds - but maybe not.  If I take a plea to a theft though then that's all it'll ever be.

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Look, as a Crown we simply can't trust what defence tells us.  I remember as a very junior Crown, really one of my first days on the job, a defence lawyer comes up to me and says "This Over 80 charge is no good.  The second sample wasn't within the two hour window".  Thankfully I knew enough to say "But only the first sample has to be within two hours".  He was trying to flat out con me into dropping a perfectly good charge.

I don't think you have the mens rea for conning there :rolling:

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Posted (edited)

I don't assume they are stupid, but there are a lot of people (Crowns OR defence) who do not prep their files fully due to lack of time or whatever, so it never hurts to run something respectfully by them that they may have missed or not considered. It's all in how you frame it, and I hope I wouldn't come across as arrogantly thinking I know more than them, because that's not the intent. Plus, Crowns are always telling me what they can prove without worrying about the fact that I'm also not stupid, so I'm not doing anything that they wouldn't.

 

Also re: the Judge X thing - I feel compelled to explain. That was based on a real-life example. Judge X on paper and in most people's' eyes is a conservative, Crown-oriented judge. BUT... I interviewed to clerk with Judge X back in law school and was offered the job, but had to turn it down as I was offered something at a higher court, and I wrote a note to Judge X explaining and received a very sweet note back. And then I ended up working with Judge X on a bar association committee. Judge X loves me and I have very good success with them.

 

So.... fast forward to a case where the only evidence against my client was their statement, and we had Judge X for the voir dire. Judge X's record generally would suggest I had no chance, BUT. The Crown asked me if I would plead based on it being Judge X, and basically laughed at me when I said that I thought I had a chance with Judge X. Well, I won the voir dire and Judge X complimented me on my able submissions and the client was acquitted. So that's something not every Crown may know about me and Judge X. Now I again would never be so arrogant as to say I know I can win with a particular judge, and that would be a huge leap to make. But I may say generally that Judge X is a good draw for me and I'm happy to take my chances with them. That's all I meant.

 

I think sometimes we, on both sides, underestimate the other side. Crowns frequently underestimate me because I'm only in my sixth year and I am not your typical white male lawyer. I use their underestimation to my advantage, and I learn from that and never assume that just because a Crown is junior to me that they don't know anything or couldn't have thought of something I didn't. But if a Crown comes across as not wanting to be told anything because they're not stupid and they're senior to me and know more, fine, we'll run it. I have integrity and I would never whine, beg, plead or bully for a deal just because my client wants it or because I'm afraid to put a case in. If I'm asking, it's because it's a just result supported by evidence and the case law and I have a client willing to take responsibility who wants certainty and closure. But if it's a no, then fine.

Edited by providence
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Certain Crowns are more able than others. Everything one would say about defense counsel applies to the Crown. While I often think it, I know that it's not fair to say that any Crown is "stupid". Their choices and positions are often ridiculous, unfair, unjust, ill-informed, etc. Same as defense counsel. Not exactly synonymous with Stupid, but uncomfortably close enough. I'm Jr. Csl., and I've worked on many files where a Crown blows the case-prep completely (getting the file the day or the trial). Or attempts to detain my Client, whom I have freed post-hearing on an Undertaking. Or, recently, where the Crown's prosecuted a Client whom I proved to be factually innocent. The difference in terms of an emotional reaction to a range of Crown conduct is that the Crown is in a position of authority, and defense counsel is a petitioner before the throne. I don't care if the Crown trusts me because, frankly, I don't like talking to them. I find it's much easier just to win the case. But every hearing or trial poses a risk to my client's liberty, and so when I send you an email or visit your office, I need you at least to listen appropriately to what I'm saying.

 

This is how I feel: Many Crowns don't want to see a younger lawyer best them. Many Crowns are just as narcissistic as defense counsel. And the process of asking them for anything is a hardship one endures only because you have to check that box. I mean you can't run a bail hearing without first asking the Crown to release the client on consent. And after they've said No--and after you've won--relationships don't improve.

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Posted (edited)

I think this whole thread demonstrates that - that a lot of people- both defence and crown - have a lot of ego wrapped up in their/our relative seniority and therefore, superiority, and the more we can all reject that, the better.

 

In terms of the original topic of plea bargains, to me there is a huge difference between true plea bargains and joint recommendations done out of expediency. When I was talking about advocacy and persuasion, I was referring to true plea bargains, where there are exigencies on both sides, both sides have risks on going to trial, and there is a client wanting to resolve things. Those true plea bargains take a lot of work and time and you absolutely are an advocate on behalf of your client.

 

Joint recommendations are often last-minute, not particularly thought through and not as detailed. A witness doesn't show, or shows and credibly says something different than their statement or notes or whatever so one or both sides lose the appetite to fight and let's cut our losses and agree to a year.

 

Those kind of joints can be done routinely or without thought by a dump truck lawyer and don't involve much thought (everyone has them sometimes, but you shouldn't be relying on them all the time.). But a true plea bargain is a different animal, and that's what I was talking about approaching Crowns with.

Edited by providence

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Certain Crowns are more able than others. Everything one would say about defense counsel applies to the Crown. While I often think it, I know that it's not fair to say that any Crown is "stupid". Their choices and positions are often ridiculous, unfair, unjust, ill-informed, etc. Same as defense counsel. Not exactly synonymous with Stupid, but uncomfortably close enough. I'm Jr. Csl., and I've worked on many files where a Crown blows the case-prep completely (getting the file the day or the trial). Or attempts to detain my Client, whom I have freed post-hearing on an Undertaking. Or, recently, where the Crown's prosecuted a Client whom I proved to be factually innocent. The difference in terms of an emotional reaction to a range of Crown conduct is that the Crown is in a position of authority, and defense counsel is a petitioner before the throne. I don't care if the Crown trusts me because, frankly, I don't like talking to them. I find it's much easier just to win the case. But every hearing or trial poses a risk to my client's liberty, and so when I send you an email or visit your office, I need you at least to listen appropriately to what I'm saying.

 

This is how I feel: Many Crowns don't want to see a younger lawyer best them. Many Crowns are just as narcissistic as defense counsel. And the process of asking them for anything is a hardship one endures only because you have to check that box. I mean you can't run a bail hearing without first asking the Crown to release the client on consent. And after they've said No--and after you've won--relationships don't improve.

 

It's been known to happen that we get a file the day beefore trial.  Or even if we had the file earlier, we didn't have time to look at it until the day before trial.  I don't think that is "blowing" the file.  It is what it is.

 

I think I mentioned before - I will always take the time to listen to what defence has to ask.  I've missed lots of things in the past, and will miss lots of things in the future.  Just don't expect me to take your word for anything - I'll listen and then say "let me go through my file and get back to you with that".

 

You talk about Crowns trying to detain an Accused who has release.  In my local docket court there's a procedure where, if you want to speak to bail for your client, you have to put your client's name on a list.  It happens pretty much every day that a counsel puts a name on the list of someone who is bail denied.

 

I'll agree I don't want to be out-lawyered on a file, but that doesn't happen very often, and I certainly don't hold it against defence counsel.  Several months ago I was running an impaired.  Defence was being kind of coy, so I suspected something was up.  I'm going through the file in the midst of my direct exam of the officer.  Finally I find it - my samples were taken out of time.  I should have caught it (and if so I could have fixed it), but good on the kid for catching it.  We had a good chat afterwards.

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Posted (edited)

One minor point in reply to MP, and this is a peeve of mine. If you get a file the day before trial, that is the Crown blowing the file. That's weak almost negligent, prosecution. It may not be YOU blowing the file. But it is The Crown blowing the file. I hate it when Crown's try to say "that wasn't me, it was some other Crown, and I won't take responsibility for it." Of course it wasn't you - it's never you. It's your Client, The Crown. Your client has many lawyers, but it's all one Crown. My clients can't avoid taking responsibility for something they did with another counsel - so why should yours?

 

I don't expect Crowns to know everything when a file changes hands. But I do expect then to own everything that happened before they got it. If stuff got fucked up before it reached you, then complain to your superiors about the negligence of your colleagues. Just don't expect me to care. Your client has a whole ducking battalion of lawyers. My client has only me. If your incredible excess of resources causes you problems, once in a while, you won't find me sympathetic.

 

Edit. Typing on phone. Ducking auto correct.

Edited by Diplock
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One minor point in reply to MP, and this is a peeve of mine. If you get a file the day before trial, that is the Crown blowing the file. That's weak almost negligent, prosecution. It may not be YOU blowing the file. But it is The Crown blowing the file. I hate it when Crown's try to say "that wasn't me, it was some other Crown, and I won't take responsibility for it." Of course it wasn't you - it's never you. It's your Client, The Crown. Your client has many lawyers, but it's all one Crown. My clients can't avoid taking responsibility for something they did with another counsel - so why should yours?

 

I don't expect Crowns to know everything when a file changes hands. But I do expect then to own everything that happened before they got it. If stuff got fucked up before it reached you, then complain to your superiors about the negligence of your colleagues. Just don't expect me to care. Your client has a whole ducking battalion of lawyers. My client has only me. If your incredible excess of resources causes you problems, once in a while, you won't find me sympathetic.

 

Edit. Typing on phone. Ducking auto correct.

 

I'm not really sure where this is coming from.  Of course one level what you say is true.  It's one Crown.  If there's a problem leading to, I dunno, a Askov delay application, it is of course no excuse to say "well some other Crown sat on the file for months".

 

But on the other hand, this is the system we all work in.  I think the most important thing is to Not Make It Personal.  If the Crown hasn't seen the file until the day before, well, if that causes the Crown a problem, then that is for the Crown to deal with.  Just like when a defence lawyer tells me 'sorry, I haven't been able to talk to my client' or "my client hasn't come through with the retainer' I don't get mad at that lawyer.  The situation is what it is, and now we all have to deal with it.

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Totally agree. And I didn't think you were saying anything offensive, MP. It's just that some Crowns do seem to want to distance themselves, as you say. And the reference to what "the Crown" has or has not blown pushed me in that direction.

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I'll agree I don't want to be out-lawyered on a file, but that doesn't happen very often, and I certainly don't hold it against defence counsel.  Several months ago I was running an impaired.  Defence was being kind of coy, so I suspected something was up.  I'm going through the file in the midst of my direct exam of the officer.  Finally I find it - my samples were taken out of time.  I should have caught it (and if so I could have fixed it), but good on the kid for catching it.  We had a good chat afterwards.

 

Interesting example. Did anyone in your office saying anything to you? Is it just chalked up to, "We're busy; shit happens"?

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Interesting example. Did anyone in your office saying anything to you? Is it just chalked up to, "We're busy; shit happens"?

Big secret about the Crown's office - there's no one watching over our shoulder. Nobody is reporting back to my boss what happens. If I don't tell anyone, no one would know.

 

In my case, I'm pretty sure I mentioned it to a few people, and the response was "shit happens". Really, the cop as well should have realized the problem as well.

 

 

What actually happened in the trial is once I realized the problem, I believe I told the court and invited dismissal mid-trial. I may lose the trial, but at least I stole the "gotcha!" moment from defence counsel. :)

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And there's the rub.  If for some reason the file sits around in the Crown's office and is not assigned promptly, or the Crown doesn't look at it properly, my client sits in custody, has the stress of a prosecution hanging over their head, pays a ton in legal fees, when this could have been discovered months ago.  It's really not about a gotcha! moment or proving you can out-lawyer the Crown - it's about your client's rights and what's fair.  So when defence are asking Crown to look at their files, it's not about who's smarter or who thinks who is stupid - it's about the fact that someone's liberty hangs on this and if we can resolve it fairly, we should.

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And there's the rub.  If for some reason the file sits around in the Crown's office and is not assigned promptly, or the Crown doesn't look at it properly, my client sits in custody, has the stress of a prosecution hanging over their head, pays a ton in legal fees, when this could have been discovered months ago.  It's really not about a gotcha! moment or proving you can out-lawyer the Crown - it's about your client's rights and what's fair.  So when defence are asking Crown to look at their files, it's not about who's smarter or who thinks who is stupid - it's about the fact that someone's liberty hangs on this and if we can resolve it fairly, we should.

I've always said it was fair to ask me to look at my file.

 

But I'm going to estimate that when defence says "I think you have a problem with your file", somewhere between 1/3 and 1/4 of the time it's actually a serious problem. Most of the time it's "nah, that's fine. We'll continue".

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That seems like a lot to me if someone is in jail.

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I've always said it was fair to ask me to look at my file.

 

But I'm going to estimate that when defence says "I think you have a problem with your file", somewhere between 1/3 and 1/4 of the time it's actually a serious problem. Most of the time it's "nah, that's fine. We'll continue".

 

That's life - we're all invested in what we're doing and see it from our own perspective.  I'm sure it's a lot less than 1/3rd or 1/4 of the time that a Crown says my client is a bad guy or their position is reasonable and a judge actually agrees.  I have to advocate zealously for my position and the Crown advocates for theirs.  If there's a 1/3rd to a 1/4 of the time success rate in showing a Crown there's an issue, that's pretty good.  The other times, we'll litigate it and see what happens.

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That seems like a lot to me if someone is in jail.

 

No kidding!  Well worth making the pitch.

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I am currently finishing off my articles and I would like to pursue a career as a criminal defence lawyer, but I have been continuously discouraged by a number of lawyers  who have said that it is difficult for women to enter the field.  Is that actually true? and have you encountered a lot of female solo practitioners? 

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I am currently finishing off my articles and I would like to pursue a career as a criminal defence lawyer, but I have been continuously discouraged by a number of lawyers  who have said that it is difficult for women to enter the field.  Is that actually true? and have you encountered a lot of female solo practitioners? 

 

 

I know plenty of female criminal lawyers, both in firms, or running their own firms, or in sole practice.  I don't really know what to say about the advice you're receiving.

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