Defence Lawyer in Sole Practice - Ask Me Anything

[Diplock]

17 hours ago, cherrytree said:

  

Not remotely close to being an employer so I can't chime in on the hiring aspect, but speaking as a student who found myself a job at a smaller practice in 1L summer as someone who was entirely inexperienced (not crim but I think the point is transferable to lots of small practice settings), what I've learned about the "usefulness" of a student is the importance of "managing up". Take initiative, be proactive, follow up, stay on top of everything assigned to you, know the expectation/deadline you have to meet and then meet them well.

Working at a small and busy practice led by someone who is experienced with a good book of business means that you need to be able to find answers on your own, articulate what those options are, give your thoughts on the pros and cons, then make it really easy for your supervisor to take in all that information so they can make the final call with a full and clear view of all sides of the issue(s). Scour every online website and resource you can access in order to make your best educated guess(es) that you can then present to your supervisor, and go beyond the Internet to find the appropriate contacts to call or speak to in person, if calling/emailing are not working.

This will not be a linear or easy process, especially in the beginning. Sometimes half a day or a whole day's work end up having to be scrapped because you misinterpreted something or the situation evolved in an entirely foreign direction. But as a student, these mishaps/mistakes are by and large expected and forgiven, it's just that you are expected to accept responsibility then learn quickly from there.

The key is to be sensitive to your employer's time and how you can best help them optimize their time. In a small practice, there aren't too many people to go through before the buck stops with the person responsible for the entire shop, so ultimately your utility to the business as a student is to make it easier to keep all the balls in the air as much as you can. There is always some kind of time-consuming, tedious work that would be way too expensive to bill the client if the experienced associates and senior partners do them, and using a student should make the calculus make more sense to the business. The fact that you are inexperienced means you are likely gonna have to make up for it with a good attitude, eagerness to learn, and resilience to handle last-minute tasks under some level of stress. But if you are working under a supervising lawyer who cares about trusting you with good work (however difficult or tedious) that is beneficial to your learning, that is a great gift and is what makes the employment relationship a mutually beneficial one.

I'd just like to endorse this advice fully for any student who may be reading. It's almost more an ideal than an expectation that any student become good at "managing up" which is why I tend not to focus on it myself. The basic advice about gaining practical exposure to court and managing clients comes first, because that's the most essential thing that a student would need. But it is absolutely true that most smaller employers (in crim, and probably elsewhere) are bad about knowing how to get full value out of a student. We don't have formal structures where workflow naturally goes to students in a well-ordered way. And quite frankly, even if I have a student around and even if I'm paying that student, if I find it easier to do something myself than give it to a student I'm probably going to do that, which results in me staying too busy and the student having nothing to do. So any student - or really any junior employee - with a talent for taking things off my plate and making it easy for me to give that work away is gold.

I doubt I'd be the best person to explain what this would look like in more detail. But let me just emphasize one thing to keep in mind. Don't assume your employer in a small office, especially, is good at managing you or any employee. We're probably not. If you sit back and wait for things to be communicated to you or done for you, you may be waiting a long time. So start from the assumption it's as much your responsibility as anyone else's to ensure you are busy, that you know what you're doing, that things are organized, etc. There will still be communication gaps, inevitably. But at least you'll be trying.

[StephenToast]

Thanks again for doing this @Diplock!

I don't really have an intelligent and informed question for you, so I'm stealing a question from Melvyn Bragg: Is there a question you wish you have been asked?

[YoungThundercat]

Hi @Diplock, how do you feel about criminal tax evasion as a practice area - is it workable for criminal defence lawyers or better left to the tax lawyers?

[Diplock]

On 6/17/2021 at 12:57 PM, StephenToast said:

Thanks again for doing this @Diplock!

I don't really have an intelligent and informed question for you, so I'm stealing a question from Melvyn Bragg: Is there a question you wish you have been asked?

You know, I really don't think there is a specific question I wish I had been asked. I suppose I have a range of what I consider to be the most important, all purpose advice. But I don't want to get roped into writing a free-form essay on my job. I could write so much - it makes more sense to wait for specific questions.

I suppose I would emphasize this is the sort of career you pursue because you really want to do it - not because the rewards somehow balance out the costs of doing a job you aren't passionate about. But I take that as reasonably obvious. I would hope most people know that already.

On 6/20/2021 at 12:05 PM, YoungThundercat said:

Hi @Diplock, how do you feel about criminal tax evasion as a practice area - is it workable for criminal defence lawyers or better left to the tax lawyers?

Well, tax law as an area of practice is very different from defending people charged with fraud in relation to their taxes. If you're talking about trying to help people find legal ways to minimize their tax obligations, that's tax law. At the point in time where whatever you or another lawyer has done results in criminal charges - or more likely, a client without legal help has done to themselves - then it belongs with a criminal defence lawyer, but that's a very different job.

More generally, I'd suggest to you that very few criminal lawyers try to specialize in specific kinds of crimes or offences. Over a long enough career, sometimes lawyers do get a bit targeted eventually. But virtually no one ever starts there. And even if they did, "fraud" is already a very narrow specialty. To narrow it further to specific kinds of fraud would be almost unimaginable.

Hope that helps at least. If there are further things you're wondering about or want to follow up with further questions, that's very welcome. I assume you're probably asking this at a relatively early stage, which is perfectly fine. Everyone starts somewhere. But I'm having trouble a bit unpacking some of the assumptions behind this question, and if you've got some ideas you aren't sure about at all it's probably best to ask further rather than have me guess at things.

 

[123]

Any tips for bouncing back emotionally from heartbreaking losses, on files I've gotten probably too personally invested in? 

[SNAILS]

Straight up, simple question. How many years do you think a new call should work for a firm before going solo? (Assume employment at a small firm/boutique)

[Toad]

Have you ever been threatened or assaulted in relation to your position as a criminal defence lawyer? Do you take any measures to increase your safety?

Edited June 25, 2021 by Toad

[Diplock]

On 6/23/2021 at 8:00 PM, realpseudonym said:

Any tips for bouncing back emotionally from heartbreaking losses, on files I've gotten probably too personally invested in? 

That's tough. I have a very strong "not my problem" field, which is a major asset in practicing this area of law (as well as most "retail" sorts of law) and so I'm rarely affected emotionally by a particular case. I'd almost say the better skill to work on is how to avoid getting too emotionally invested to begin with, rather than how to bounce back. For the few cases that genuinely bother me - cases where I believe my client was failed by the system or where the result was too harsh - I find it some consolation when I can honestly say I did the best job possible and the result isn't on me at all. That's one good reason to always do the best job you can, btw. There are often cases where you can phone it in and probably still get to the right result, but that "probably" is a hell of a risk to take. It's the times when you lose that you really want to know you couldn't have done anything better. And for the rest, I have a short list of cases I carry about in the back of my mind that bother me a bit, but I use them mainly for motivation. They don't haunt me as much as they keep me honest.

I don't have much else than that. You're going to participate in cases that are, in some sense, very sad for your clients. Sometimes those cases are potentially miscarriages of justice. Sometimes the situation is just sad. When someone drives impaired, with their equally impaired friend, and gets in an accident and their friend dies, it isn't the legal complexity that makes things sad it's just the situation. Now you've got the victim's mother filing victim impact statements and talking about how your client should burn in hell when he was eating breakfast at her house just a couple of years ago. And your client's mother can't understand why the system is being so hard on her son, even though if the roles were reversed and her son was the one who died and his friend was driving she'd be the one out for vengeance.

Because it's a legal system subject to human decision-making, there's the illusion that somehow the right application of judgment can lead to a satisfying result in every case. Sometimes it just can't. There are realities you can't change or control, any more than a doctor who treats cancer can control the outcome in every case. Patients are going to die. Clients are going to go to jail. There are rules and constraints you can't change. Accept your limitations, do your best, and move on to the next case like any other professional.

That's all I've got.

[Diplock]

1 hour ago, SNAILS said:

Straight up, simple question. How many years do you think a new call should work for a firm before going solo? (Assume employment at a small firm/boutique)

That's a very personal and contextual question. I think anyone going solo should ensure they have, at minimum, sufficient basic competence in the field and/or a sufficiently robust support system that you can do the job properly. That's incredibly vague, of course. Some people go sole very early and work very competently because they are careful, ask all the questions they need to ask, work as hard as they need to work at figuring things out, and basically just do everything they need to in order to do the job properly. Some people practice a long time without learning the basic skills required to work on their own.

So, basically, my answer is simply that you can fly solo once you are reasonably sure you won't hurt anyone in the process. The terrifying thing is, there's no test or certification required - outside of being licensed to practice law in the first instance. You're required to assess your skills for yourself. The best I can suggest is, rather than asking that question in the abstract, ask people you work with and work around. What you really need to know is whether you are ready - not how long it takes an average person to be ready.

[Diplock]

1 hour ago, Toad said:

Have you ever been threatened or assaulted in relation to your position as a criminal defence lawyer? Do you take any measures to increase your safety?

No and no. I won't swear it's impossible for a criminal defence lawyer to upset someone so badly that our safety could be threatened, but we aren't remotely at the top of the list. Family lawyers get this sort of thing way more often. Although we interact with criminals (many of my clients have been convicted at some point, at least, and so are literally criminals) they generally like us. I suppose if you are a shitty lawyer who is bad at your job and you don't do your job properly you'll end up pissing people off, but even then most clients have sufficient good sense not to outright threaten their lawyer. You might get a bad review on Google, but you're unlikely to face more than that.

I won't say it's impossible and that it's never happened. When you occupy a position of significant power and responsibility, there's always the chance that someone is going to blame you - rightly or wrongly - for whatever bad thing happened to them. But that's true of many professionals. I don't feel criminal law is anywhere near the top of the list of jobs that are likely to attract violence as a result - either in the legal profession, or more generally.

[Whist]

This is a similar question to something that's already been asked, but rather than how to deal with the outcome, I'm interested in your opinion on whether criminal defence is an area of law more emotionally challenging than others in the first place. Because it seems to deal with very personal circumstances, I'm worried that even if it's something I become interested in, I won't have thick enough skin for it in the long term. (That being said, I don't know if it would be any worse than other kinds of law that deal with individual clients.)

[Diplock]

1 hour ago, Liavas said:

This is a similar question to something that's already been asked, but rather than how to deal with the outcome, I'm interested in your opinion on whether criminal defence is an area of law more emotionally challenging than others in the first place. Because it seems to deal with very personal circumstances, I'm worried that even if it's something I become interested in, I won't have thick enough skin for it in the long term. (That being said, I don't know if it would be any worse than other kinds of law that deal with individual clients.)

You've at least internalized some of the most significant advice I would have given already. It's the individual clients that make things emotionally charged. You won't get too far away from that as long as you're serving individual clients. Maybe there are some areas with technical solicitor work where there's less pressure - something like real estate. But almost any area of law serving real, individual people is doing to run into the stress of dealing with these clients and their problems because their problems are very real and personal to them too. Hoping or expecting that all of these clients will keep that carefully to themselves and not dump it on you is obviously unrealistic.

All I can say is that while this problem is very real, and is hard for some people, it's not like it's something you can easily get away from by simply not practicing law in specific fields. Any job where you interact with people, and where you occupy a position of significant trust and responsibility, is going to be subject to this. When a customer gives you shit because their hamburger is late, it's easy to blow that off because seriously, it's just fucking lunch. Get over it. But when you're dealing with someone's liver biopsy, or the loan they need to refinance their mortgage and keep their house, or the adoption they're trying to complete, or anything else that's actually, you know, genuinely important then you're going to feel it sometimes. That just comes with having a job that's important to people.

Anyway, hope that's some help.

[123]

2 hours ago, Liavas said:

This is a similar question to something that's already been asked, but rather than how to deal with the outcome, I'm interested in your opinion on whether criminal defence is an area of law more emotionally challenging than others in the first place. Because it seems to deal with very personal circumstances, I'm worried that even if it's something I become interested in, I won't have thick enough skin for it in the long term. (That being said, I don't know if it would be any worse than other kinds of law that deal with individual clients.)

Clinics are a good way to test this out.

I was from a somewhat comfortable middle-class upbringing, and worried that I wouldn't be tough enough to hack it in criminal defence or some other field where I'd be dealing with impoverished clients. Obviously, based upon my earlier post, cases do affect me. But my fears that I would be too nervous to run a trial where jail was a real possibility, scared of giving bad news to clients, scared of challenging clients, or dealing with the adversarial system were unfounded. Not only can I cope with it. I think I'm a better, more focused advocate when the stakes are raised. I found that out at the clinic. 

Some of my classmates learned the opposite thing about themselves through clinical work. Dealing with clinic files taught others that they didn't want the weight of vulnerable clients' future hanging over them while they worked. While I take Diplock's point that all legal practice involves weighty matters, I've heard others say that they're more comfortable where the stakes are money for institutions, and not someone losing their freedom, kids, immigration status, etc. That makes sense to me. Money is fungible, and can conceivably be recovered by clients if you fuck up. The other stuff, less so. If you can't live with the stress of individual consequences, it's good to find out early, because I do think that there are fields where the consequences are less immediate.

As noted, I struggle with losing certain cases. But with a few exceptions (mostly mentally ill youth cases, where I felt that the clients got screwed), I've actually been okay in crim proceedings. I'm new to everything, but started practice in criminal, and while I was stressed, I had enough confidence in the other participants (some JPs and Crowns excepted) that I could trust my clients would get a fair shake at bail, trial, and sentencing. 

I've since transitioned more into another area of retail-style law, where the quality of decision-making is low but the stakes are still high. Pair that with closer client relationships -- you get closer to clients when you spend hours and hours preparing them, because they'll actually need to testify -- and I'm lying awake a lot more often worrying about my cases. 

Anyway, sorry to hijack this. Back to your regularly scheduled programming. 

Edited June 25, 2021 by realpseudonym

[Diplock]

On 6/25/2021 at 4:59 PM, realpseudonym said:

While I take Diplock's point that all legal practice involves weighty matters, I've heard others say that they're more comfortable where the stakes are money for institutions, and not someone losing their freedom, kids, immigration status, etc. That makes sense to me. Money is fungible, and can conceivably be recovered by clients if you fuck up. The other stuff, less so. If you can't live with the stress of individual consequences, it's good to find out early, because I do think that there are fields where the consequences are less immediate.

I don't consider this to be a hijack at all, and I'm happy to engage with it. I mean, your own experiences in practice are as valid as my own, of course. I don't think we disagree about anything, really, but without quite meaning to you moved from an example about how the stakes are different when you're talking about "money for institutions" and turned that into a generalized point about money. To me, the institutions part is far, far more important.

Criminal consequences are serious, you can find consequences as serious or even moreso in other areas of law. I mean, I see it with my own clients, where the immigration issues they face dwarf the criminal, or where they're afraid of losing their kids. And even financial consequences, to someone who is one step away from the street, can be more serious than criminal.

So really, we're talking about the same thing. But just to use an uncommon but real counterpoint, it's possible for a corporation to be charged with a crime too, and face criminal penalties and fines at least. Show me a corporation charged with a crime and I'll show you the client I worry least about, despite the fact that they're probably paying me far better than most. It's the difference between individuals and institutions, not the difference between criminal law and non.

[Crimmytimmy]

I’m a new call and hungry/anxious to have my first trial. 
 

I am wondering, how long were you practicing before you had your first trial? Also, how much time did you spend cross examining Simone before you felt proficient at it? I realize “time” spent cross examining is difficult to measure. So, any input you have is appreciated. 
 

 

[luckycharm]

Does it require travelling to different Courts in Ontario? 

 

[PulpFiction]

6 hours ago, luckycharm said:

Does it require travelling to different Courts in Ontario? 

 

Not trying to speak for Diplock here, but the answer is almost always going to be yes, criminal law, especially as a sole, requires travel to different courts in Ontario. Some lawyers restrict their practices to the GTA, for example, which includes many courthouses. Some lawyers will take on cases Ontario-wide, depending on the case. It varies how much and far you'll have to travel around Ontario, and a lot of that is at the discretion of the defence lawyer selecting what work to take on. 

Edited July 24, 2021 by PulpFiction

[Hegdis]

On 7/23/2021 at 2:15 PM, Crimmytimmy said:

I’m a new call and hungry/anxious to have my first trial. 
 

I am wondering, how long were you practicing before you had your first trial? Also, how much time did you spend cross examining Simone before you felt proficient at it? I realize “time” spent cross examining is difficult to measure. So, any input you have is appreciated. 
 

 

Sometimes you don’t need to cross at all. ESPECIALLY if the waters are muddy after direct. That typically benefits your client; that is a reasonable doubt. 

A good cross is often pointed and brief. A meandering, wide ranging cross is usually not worth the time. Know your issue. Know the weak point. 
 

I am not saying it’s always one way or another - but the quality beats mere quantity every time. 

[luckycharm]

2 hours ago, PulpFiction said:

Not trying to speak for Diplock here, but the answer is almost always going to be yes, criminal law, especially as a sole, requires travel to different courts in Ontario. Some lawyers restrict their practices to the GTA, for example, which includes many courthouses. Some lawyers will take on cases Ontario-wide, depending on the case. It varies how much and far you'll have to travel around Ontario, and a lot of that is at the discretion of the defence lawyer selecting what work to take on. 

Thanks. Not something I can handle.

[Diplock]

10 hours ago, luckycharm said:

Does it require travelling to different Courts in Ontario? 

 

Some amount of travel, yes. There are some areas in Ontario where enough work is concentrated at a single court that a lawyer could reasonably restrict their practice to just that location. It tends to be the mid-sized urban centres where that happens. I'm thinking Barrie, or Hamilton. Even then you'd get calls to go to other courts but you could always refuse to take them if you had that luxury. I know of very few defence lawyers who don't drive, but I do know a few. It's possible, I suppose. But it's definitely going to limit your practice. And exactly because you can only get away with stuff like that when you work for yourself, the path to that sort of situation - where you get through working for someone else who requires you to travel, only to work for yourself where you don't - is pretty narrow. There's a reason almost every posting for an articling student in criminal defence requires access to a car. But it is possible. Just very unlikely and very uncommon.

[Diplock]

On 7/23/2021 at 5:15 PM, Crimmytimmy said:

I’m a new call and hungry/anxious to have my first trial. 
 

I am wondering, how long were you practicing before you had your first trial? Also, how much time did you spend cross examining Simone before you felt proficient at it? I realize “time” spent cross examining is difficult to measure. So, any input you have is appreciated. 
 

 

Well, I suppose the answer to the question depends significantly on what role you're in. Are you working for someone else or are you on your own? If you're working for someone else, ask them when you'll have your first trial. If you're working for yourself, do you have clients and/or what stage are their proceedings in? Generally it takes about a year for any matter to get from charge to trial in the GTA, though it could be faster if the client is in custody or if you're in another location.

To cite the other major variable, the large majority of criminal files do not go to trial at all. The percentage that do go to trial is much higher when you've got more serious charges. As a new call, you're likely handling files both at their very start and also files with relatively low stakes. So it could, indeed, be quite some time before you get to a trial.

I'll agree with Hegdis that you're probably placing a false amount of weight on cross-examination, like you think that the whole outcome of a case rests on that. In terms of basic skills, I'd actually say it's more important to get comfortable going through a few hundred pages of disclosure (that's a small file) getting a handle on what really matters in a case and figuring out what the theory of the defence even is. Very often, the weakness in the Crown's case won't be found in cross-examination at all. If you're hoping for some television-like experience, where you break a witness down on the stand and get them to admit they've been lying all along, that isn't going to happen. Generally speaking, the story isn't going to change. It's more about figuring out what facts really matter and how they relate to the law.

Anyway, hope that's some help.

[devgru]

I’ve heard from some defense lawyers that criminal defense is “generally one of the lower paid areas of law”. Would you agree with this statement? 

Edited July 28, 2021 by devgru

[Hegdis]

Initially yes. Barring a handful of very established offices, most criminal defence counsel are sole practitioners who eat what they kill. They have office overhead and potentially an assistant to pay - if they are doing well they can hire a student for a modest wage. That's all subtracted before any money they see in their own account to pay their own bills and buy their own food.

But it's possible to make a lot of money doing criminal defence, if you have the skill and are prepared to put in the time, and most of all if you figure out the business side of things. It takes dedication and years. And no one holds your hand.

[123]

20 minutes ago, Hegdis said:

But it's possible to make a lot of money doing criminal defence, if you have the skill and are prepared to put in the time, and most of all if you figure out the business side of things.

It's possible to make good money without a lot of skill or prep, if you really figure out the business side of things. Particularly, if someone draws upon a particular ethnic or linguistic community and does very high volume without going to trial. Not that I'm encouraging anyone to be a dumptruck lawyer. But I do think the business success and skill as counsel are not necessarily intertwined. 

Edited July 28, 2021 by realpseudonym

[Diplock]

34 minutes ago, realpseudonym said:

It's possible to make good money without a lot of skill or prep, if you really figure out the business side of things. Particularly, if someone draws upon a particular ethnic or linguistic community and does very high volume without going to trial. Not that I'm encouraging anyone to be a dumptruck lawyer. But I do think the business success and skill as counsel are not necessarily intertwined. 

That's very true, and an observation I've made in the past also. In addition to the warning that no one should aspire to be a dumptruck, I'd add that the opposite is true also. Being a very good and effective lawyer is no guarantee of success if you can't figure out the business side of things. A lawyer in sole practice needs to be an entrepreneur first and a lawyer second. That's not to say the lawyering is unimportant. That's the product you are selling. You'll obviously be more successful as an entrepreneur if you are selling a better product. But the best product in the world won't save you if you can't manage your business properly. And you absolutely can and will lose work and clients to a better organized business selling an inferior product.