When I started my practice, I wanted to like all my clients and go for the gold in defending them. I lived in a dream world.
But I have now come to realize that it’s important to give the client realistic and practical expectations and be efficient where the case calls for it. You can’t separate the client from his or her legal problem, and sometimes the best result isn’t the one you would initially view as optimal.
An example: the client has plenty of money for his impaired trial because he recently came into an inheritance after the death of a parent. You review the disclosure and realize the trial would be very embarrassing for the client because of his gross intoxication and that you are unlikely to win.
If he pleads guilty, you could edit the facts and pick the judge and a quiet time to deal with the matter. Although the client has come to you for a trial, he is very vulnerable, and the better result for him might be to plead guilty.
Many clients come into contact with the criminal justice system because they are at a turning point in their lives: the death of a parent, the breakup of their marriage or a job loss. When first meeting with a client, it’s important to ferret out this background information that’s not likely to be featured in the Crown brief.
The length it takes to get to trial may have a serious effect on the client. The right to a trial within a reasonable time has given the client a remedy since R. v. Askov, but the victory may be pyrrhic if, during the long wait, he develops heart problems, his marriage falters or he loses his job because he can’t concentrate at work.
For some clients, the best result is an early guilty plea. The time spent awaiting trial, described by former Supreme Court justice Peter Cory as “exquisite agony,” is often just that.
One client who came to see me for a trial had orders to do so from her family. I then had to tell her it was OK to plead guilty. She wasn’t letting anyone down by making her own choice. In fact, she was grateful to finish her matter quickly and to move on with her life.
Some clients think they want justice, or their view of it, at all costs. They want to sue the police, the Crown, and the complainant. Unless you’re insured to do civil litigation, you have to send them elsewhere, but any of these things are likely to complicate and prolong the criminal matter. Having the complainant charged or filing a report to police is generally not helpful, and I tell the clients this.
Another area where clients can benefit from being told to “let it go” involves situations where they’ve been convicted but given the colloquial “kiss” at sentencing, such as a discharge for a domestic assault or a suspended sentence for a sexual assault. At this point, their pockets are empty and their stamina exhausted. Some people will appeal with the slightest encouragement, but their chances of winning are probably less than the odds were at the original trial.
Never settle a case before you get disclosure but never set a trial date just because the client wants to fight it. You are the lawyer. It’s your job to think through the case and make sure those are the instructions the client really wants to give you.
Rosalind Conway is a certified specialist in criminal litigation. She can be reached at [email protected].
