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KingLouis

Worst Case You've Ever Lost (And Why)

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I've been really down this week after a miserable trouncing on an OW Fraud. Migawd, these workers are militant in the way they go after people. Losing is never fun, but sometimes you lose ugly. Like the client's yelling at you, the clerks are laughing, the Crown's gloating--that kind of thing. And then you get in the car or on the subway to go home. And the wheels start spinning. Should I have called the client? Is there a case I could've submitted that would have won it for me? And you gotta wait patiently for that darkness to lift. It sucks.

I'm wondering...what's the worst case my fellow litigators here have ever lost? And how far down did you fall? It doesn't have to be a case where the client was acquitted on appeal. Or you asked that 1 wrong question that lost the damn thing. What's that most-terrible moment where you've been shot through the heart while stuck at the counsel table listening to the judge convict with the first word out of his mouth? And you feel like Schindler--you could have done more. 

I'm curious about everyone's stories. 

 

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Homicide trial.  Deceased is native, Accused is white.  I have a half dozen witnesses describe how after a very brief ambiguous struggle between the two in the middle of the parking lot (some weren't sure who started it, some say Accused started it, some only see it once it starts), but each of the six witnesses describe the native fellow being knocked to the ground, and the Accused stomping on his head.  Deceased never gets up and is pronounced dead an hour later.  Many of my witnesses had been drinking (but didn't know each other, or either party), but also included the south asian liquor store employee who hadn't.

Accused takes the stand and flat out denies stomping or kicking the Accused on his head.

Judge doesn't just have a reasonable doubt - he accepts the word of the white Accused over the half dozen independent witnesses.  He finds as a fact no head stomping.  Liquor store employee was too argumentative and adamant about what he saw (which was, lets remember, one man killing another), which called his credibility into question.

Deceased's family is in the court. They fucking lose it.  I can't blame them for one minute.  Sheriffs are called as they're yelling and screaming at the justice.

Worst trial of my professional life.

There was a major part of this story I'm leaving out that happened at prelim as it gets perhaps too identifiable (though the media didn't cover this story, and the family wasn't savvy enough to have gone to the media), but it gave this whitebread prosecutor a major appreciation for what the criminal justice system is like for minorities.  The family told me from day one this would be the outcome.

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4 minutes ago, Malicious Prosecutor said:

Homicide trial.  Deceased is native, Accused is white.  I have a half dozen witnesses describe how after a very brief ambiguous struggle between the two in the middle of the parking lot (some weren't sure who started it, some say Accused started it, some only see it once it starts), but each of the six witnesses describe the native fellow being knocked to the ground, and the Accused stomping on his head.  Deceased never gets up and is pronounced dead an hour later.  Many of my witnesses had been drinking (but didn't know each other, or either party), but also included the south asian liquor store employee who hadn't.

Accused takes the stand and flat out denies stomping or kicking the Accused on his head.

Judge doesn't just have a reasonable doubt - he accepts the word of the white Accused over the half dozen independent witnesses.  He finds as a fact no head stomping.  Liquor store employee was too argumentative and adamant about what he saw (which was, lets remember, one man killing another), which called his credibility into question.

Deceased's family is in the court. They fucking lose it.  I can't blame them for one minute.  Sheriffs are called as they're yelling and screaming at the justice.

Worst trial of my professional life.

There was a major part of this story I'm leaving out that happened at prelim as it gets perhaps too identifiable (though the media didn't cover this story, and the family wasn't savvy enough to have gone to the media), but it gave this whitebread prosecutor a major appreciation for what the criminal justice system is like for minorities.  The family told me from day one this would be the outcome.

You probably can't answer, but did you consider an appeal? Obviously it would be a difficult appeal (of fact) but.. I don't know. This is very sad.

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11 minutes ago, pzabbythesecond said:

You probably can't answer, but did you consider an appeal? Obviously it would be a difficult appeal (of fact) but.. I don't know. This is very sad.

Pure finding of fact.  Considered but not pursued.

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7 hours ago, Malicious Prosecutor said:

Deceased's family is in the court. They fucking lose it.  I can't blame them for one minute.  Sheriffs are called as they're yelling and screaming at the justice.

Do you ever have families and victims lose it on you following an acquittal? Like, "Why didn't you say this? Why'd you let that other lawyer say that?" 

Also--just thinking over your story: if there was no head stomping, how did the guy die? I know it's a race-based acquittal, but you'd think the judge would connect the medical evidence outlining the cause of death with the witnesses' evidence. 

Edited by KingLouis

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9 hours ago, Malicious Prosecutor said:

Homicide trial.  Deceased is native, Accused is white.  I have a half dozen witnesses describe how after a very brief ambiguous struggle between the two in the middle of the parking lot (some weren't sure who started it, some say Accused started it, some only see it once it starts), but each of the six witnesses describe the native fellow being knocked to the ground, and the Accused stomping on his head.  Deceased never gets up and is pronounced dead an hour later.  Many of my witnesses had been drinking (but didn't know each other, or either party), but also included the south asian liquor store employee who hadn't.

Accused takes the stand and flat out denies stomping or kicking the Accused on his head.

Judge doesn't just have a reasonable doubt - he accepts the word of the white Accused over the half dozen independent witnesses.  He finds as a fact no head stomping.  Liquor store employee was too argumentative and adamant about what he saw (which was, lets remember, one man killing another), which called his credibility into question.

Deceased's family is in the court. They fucking lose it.  I can't blame them for one minute.  Sheriffs are called as they're yelling and screaming at the justice.

Worst trial of my professional life.

There was a major part of this story I'm leaving out that happened at prelim as it gets perhaps too identifiable (though the media didn't cover this story, and the family wasn't savvy enough to have gone to the media), but it gave this whitebread prosecutor a major appreciation for what the criminal justice system is like for minorities.  The family told me from day one this would be the outcome.

 

Geeze... not sure that's what the SCC had in mind with WD.

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4 hours ago, KingLouis said:

Do you ever have families and victims lose it on you following an acquittal? Like, "Why didn't you say this? Why'd you let that other lawyer say that?" 

No, I don't think so.

I've had people stomp out of court in a huff.  I've had people break down sobbing.  I've had people complain to my higher-ups.  I've certainly had people ask me those questions.  But at least so far no one has lost it, yelling and screaming at me.

I'm sure it's only a matter of time though.

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I've had some cases where I lost and wished I could have a do-over to present things in a different way, ask one more question, bring one more witness. But man, this discussion makes me glad that all I do is labour law, not criminal or family law.

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I've always said that criminal lawyers have the best stories, but I think yet again I've killed the thread by posting a story that is difficult to top.

So don't worry about topping it!  Just share your own stories.

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I had one case where, after waiting anxiously for a few months, the decision finally came. It wasn't hugely long, maybe 10-15 pages, so I started reading it. He accepted my position on pretty much everything and although I hadn't gotten to the end yet, I was sure he was going to uphold the termination. Then in the last paragraph he reinstated the guy with basically no reason!

This guy had gone through some rough stuff, but our cause for termination was extremely strong and was not related in any way to what he was going through personally. My litigation strategy had been to go relatively easy on him in cross-examination because I didn't think I gained anything from trashing him (for example, by asking him about looking at porn and masturbating in the office, which wasn't relevant to the termination, but was relevant to some of the obnoxious claims he made in his testimony about what a great guy he was who would never do certain things).

Anyways, the arbitrator felt sorry for him and basically reinstated him for that reason, with no supporting analysis. We had it overturned on judicial review, but I'm sure I could have won that case if I'd asked him about the porn.

I should add, this is what makes litigation so challenging and interesting. 9 times out of 10, my strategy was the right one. This turned out to be the exception. Maybe I should have picked it up and changed on the fly, but it was a judgement call. 

Edited by Jaggers

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A couple of months ago I have a B&E trial: this woman and her boyfriend are accused of breaking into girl's mother's house through a window and stealing items in broad daylight.  Police arrive and see the two literally walking out the door carrying the items, and ID the point of entry.  Problem is of course is that my witnesses are the Accused's mother and brother.

On the day of trial nobody shows up.  I call both, and actually get the brother on the phone.  He says he forgot, has no way of getting there.  I offer to get police to come pick him up.  He agrees.  He shows up at court and is perfectly willing to testify.  He's tired of all the bad stuff his sister is doing to their mom.

Anyways, this all takes time, so by the time I have the witness it's after 11.  Trial judge tells us to come back for 1:30 to start my trial.  I'm a little worried that my witness isn't going to come back after lunch, but he does.  When he comes back he says he spent his time trying to find his mom, who he has heard has been staying at a homeless shelter.

Anyways I have two cops and the brother.  One of the cops has been working night shift, and it's now the afternoon.  I decide to call him first.  Just as we're about to start mom shows up!  She got word on the street what was happening.  She rapidly makes it clear she wants nothing to do with me, is only there to help her daughter.  I quickly decide I can't call her as a witness.

So we finally start the trial.  I call the cop, leaving mother and son together...

Yup.  When I'm done with the cop the son has vanished.  We put it over for a witness warrant but no luck - police couldn't find him.  I had to stay the charge.

I knew the risk - why the hell didn't I call the guy at my first opportunity when he was willing to testify?

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In family law, even "winning" is bittersweet and pyrrhic.

Losing a case can result in review bombs and even threats of self-harm or suicide. I have been fired for losing a motion on interim primary residence.

Edited by Aureliuse

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It was an estreatment hearing. Very poor mom working two jobs was convinced to stand surety for her drug-dealing son. No independent legal advice;  I am sure that the only thing that she understood from the toneless rapid spiel at the Registry was “sign this and your son can come home”.

The amount is for five grand, which she doesn’t have because she is poor. She can’t actually supervise her son because she has two shitty graveyard shift jobs because she is poor. He is left to his own devices because when she isn’t working she’s in line at the food bank or sleeping on the couch in their one bedroom apartment because - you guessed it - she is poor. 

It takes the son about four days to get pinched selling drugs in a mall parking lot. He has cellphones on him, loads of cash, and a dialer bag (drugs). All of this is in violation of his bail along with the drugs being a new substantive. The Crown, pissed off but triumphant, marks this money down for an estreatment hearing.

Anyway I will leave the rest of it alone except to say there is sometimes real difficulty conveying hard realities to a person who has never been without a trust fund and considers five grand to be a “trivial amount”.

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10 hours ago, Hegdis said:

It was an estreatment hearing. Very poor mom working two jobs was convinced to stand surety for her drug-dealing son. No independent legal advice;  I am sure that the only thing that she understood from the toneless rapid spiel at the Registry was “sign this and your son can come home”.

You know I generally loathe sureties.  As Crown, I don't want to take mom/grandma's money.  If we're at the point where the Accused is only getting out with a surety, we're probably just better off denying bail.

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