Criminal Defence Articling Student Survival Tips

[BrotherShamus]

Hey everyone,

I'm a current 3L and I will be articling for a sole practitioner in criminal defence starting next year. I am really excited but also pretty nervous about starting this role. I've heard criminal defence can be a tough area and articling students are often doing a lot on their own.

I'm looking to get as much out of this experience as I can and I want to be the most effective articling student that I can. I am eager to learn as much as possible. What are some things I can do to prepare for articling and what are some things I should keep in mind when I start the role? I'll be working in Vancouver if that context is relevant.

Further (though maybe I should ask this as a separate topic) how hard is it to transition to sole practice from articling in criminal defence. Would it be smarter to find an associate role in a firm for a few years before hanging my shingle?

Any advice is greatly appreciated!

[Phaedrus]

I articled for a very small shop that practiced mostly criminal. A few things I can think of off the top of my head:

• Brush up on your Evidence and ConLaw CANS
• Review Charter sections 1, 7-12 and 24 (including leading authorities)
• Review the Canada Evidence Act
• Review Criminal Code section 606
• Review your jurisdictions' Summary Proceedings Act
• If available, find and review resources on 276/278/Seaboyer applications
• Go watch an arraignment day at your local provincial court, also find out where the counsel rooms and bathrooms are
• Go to Criminal Law Notebook and review available defences
• Find out if your jurisdiction has a mental health/substance use/wellness court
• Get yourself formal wear (duh). A single suit is fine, just make sure you have extra shirts

Articling in criminal can be difficult because it's hard to bend your principal's ear and get meaningful feedback. Like most other practice areas, they don't have the time or resources to train you. Clerks in small criminal defence shops are left to: deal with arraignments, draft Charter applications with supporting materials, draft evidentiary applications with supporting materials, draft applications to vary undertaking/release order, and maybe with some SOTs. In many cases, you'll be asked to do this or do that without fully understanding that exactly you're being asked to do. You'll need to learn how to figure it out yourself; review disclosure, spot Charter/evidentiary issues, research those issues and give an opinion as to whether there's a valid challenge, and assess what kind of defence evidence might need to be called. It might have just been my experience (though I doubt it) but I did a lot of 276/278 application work. They're time consuming, labour intensive, and necessary in most sexual assault trials. 

Obviously, I didn't capture everything you'll do but that's a good start. Good defence articling experiences have you in the courtroom at least a few times, from simple arraignments you can do on your own to supervised oral argument and submissions. Not so good experiences have you working as a research monkey for 12 months churching out nothing but memos on areas that principal virtually knows anyway. That experience is valid, but (IMO) it robs the clerk of valuable learning opportunities in an area where most counsel hang their own shingle and aren't looking to take on a junior. 

Oh - and again maybe this was just me - don't expect too much of a heads up for when things are due. 

I might add more if I can think of anything helpful.

Good luck!

[Hegdis]

 

Here's the Oh God I'm In Court Help cheatsheet:

 

There's a court list and often the court will refer to the number on the list as opposed to a name/ file number. Have a copy of the most recent court list (they get updated until the last minute) and have your matters highlighted for quick reference. If you can tell the JP which number your matter is they will be happy.

 Going in, you need to know these things: 

1. Do you have counsel designation signed and filed? This is a document the client signs that permits the lawyer (and you) to appear on their behalf on indictable matters (serious matters). The Court will ask you if one is filed. Know the answer. If one has not been signed/filed, you are asking the Court to "Note the Non-Appearance" ("NNA") and hold the warrant / adjourn the warrant application to next date. Don't get spooked by the talk of warrants: it's just to maintain jurisdiction over the accused until a CDN is filed or they make a personal appearance. On that, some bail orders require personal appearances from accused: make sure you know ahead of time if they are expected in court. If you have to ask the court to NNA it's always helpful to know when you last had contact with the client in case the court asks (they don't like adjourning for a person who is in the wind entirely).

 

2 Do you have instructions about Jordan deadlines and waiver of delay? If this is gobbledygook to you, you need to figure it out before you go on record. Briefly: This concerns your client's right to trial within a reasonable time under s. 11(b) of the Charter. Once a person is charged an 18 month clock starts (goes up to 30 months if you end up in superior court with prelim). If defence needs time to do anything - track down a client, read disclosure, draft a Charter notice - you need to know if your client has given you explicit instructions to waive the delay (can ONLY be done with client's informed consent) or to indicate it's defence delay: either of those things stops the clock until next appearance. If you're waiting on disclosure from Crown, or if Crown is asking for the adjournment, you don't have to worry about that because the delay falls on them and the clock keeps ticking. Do not wing this - get instructions from your principal ahead of court.

 

3. Do you have all of the disclosure you need to arraign? The requests for disclosure are typically done via formal letter from defence to Crown; you need to know what stage disclosure is at because you can't set trial dates or enter an informed plea until you know the case against your client and get instructions on the full picture. If you're still waiting for disclosure you need to note that because first, it alerts the Crown that they need to attend to it, and second, it makes the adjournment a Crown delay (see above). If you do end up in an 11(b) delay application one of the things the judge reads is court transcripts. You want enough detail on each adjournment available to indicate who bears the delay.

 

4. If you are ready to indicate a plea - either guilty and off to fix a sentencing date or not guilty and off to set a trial date - you need to know your election. This involves choosing a provincial court judge (the 18 months clock) or a superior court judge / jury (in BC this is BC Supreme Court and it's a 30 month timeline). It involves indicating the language: french or english. It involves a time estimate. It involves either a client being present or CDN being filed (with CDN you can indicate a not guilty plea, and that will be formally taken the morning of trial or at the prelim). This is an important part of the court process and again, never wing it. Get explicit instructions on what the election and language is: these are rights that belong to the client and not the lawyer.

 

5. If things go sideways and you're in over your head, ask for a week's adjournment to seek instructions from your principal. The magic phrase here is "I don't have instructions at this time". Even if you get pushed or bullied into something, the transcript reflects that you are a student without instructions. But simply stating those two things should protect you for the most part and give you room to breathe and get properly updated on the file. It's not a good look and you want to avoid it, but everyone needs to know how to activate their parachute in case the plane starts going down.

 

So, to recap:

 

Do you have CDN filed, or recent contact with the client? 

Do you have the disclosure you need to arraign? 

If arraigning, do you know your election and time estimate for trial / prelim?

[Phaedrus]

Another important practice tip: Matters are almost always called by the judge in order of seniority of counsel. When you attend court (and get there a few minutes early), approach the clerk and identify yourself, the lawyer you're there with/for, and the client matter (see Hegdis above). Always, always, always let them know you're an articling clerk. I made it a habit of also asking to be bumped to bottom of the docket in favour of senior counsel, if they haven't already (because sometimes they'd call my principal's matter first/second and then everyone would watch me, the jackass clerk, talk before them). I got my fair share of chuckles with the request, but no one questioned my respect for those present. 

But it's not just an informal rule. Litigation is a grind and lawyers take their earned seniority seriously. Spending years waiting 3 hours to have your adjournment request heard sucks, but boy does it feel good when you're at the top of the pile. Practically speaking, your time as a junior is not as valuable as a 25+ year call and the expectation is that you wait. You do not want to be the entitled clerk huffing and puffing to court staff and sheriffs about having to sit and wait your turn. The criminal bar is small, there are only a handful of judges, and you want to avoid making a bad impression straight out of the gate. An important part of this job is managing your relationship with the staff, Crown and other defence counsel you might need future from, and bemoaning how you have "so many other important things to do than sit around and wait" reflects poorly on you (and your principal will hear about it). 

The more important part of waiting your turn is that it presents an incredibly valuable opportunity to observe. I can't tell you how much I've learned simply by watching how other counsel address the judge, how the judge responds to an appeal to legal/moral justice, figuring out how Crown responds to certain issues, what strange court-specific shorthand language everyone uses, etc. It's also great to use the time to mentally rehearse your name, your principal's name, your client's matter, and what you're doing today (and please, no one waste their time saying they didn't do this the first few times in court. Everyone does and it's nothing to be ashamed of).

Watching isn't limited to clerking, either. I've been called to bar for a few years now and I still spend time watching trials I have no part of. Just today I took my morning to watch a child abuse trial and wondered why the fuck defence counsel cross-examined an officer on whether they, if they were to hit their child, would use a doubled-up belt or a straight belt - or if they think the worn leather of the belt could have been caused by strikes or if it was natural. Setting aside the questions, they got into issues not raised or even hinted at by the Crown - WHY?! Oral advocacy is an incredibly important skill and you want to learn what does and doesn't work. Watching a ton of senior counsel duke it out like a sports game is usually the best place to start. As you become more comfortable with the substantive parts of the law, it gets fun to guess what issues the lawyer is priming, what motions they're preempting, and what arguments they want to make later. 

[Hegdis]

Just noting the use of clerk to describe student - not a practise in BC. In BC you are an articling student. 

Agree with the above re seniority. In some courtrooms the Crown calls the list rather than the court clerk. In some jurisdictions it’s seniority only but in others it’s a matter of canvassing what is a quick adjournment versus a ninety minute sentencing. If you are in a busy court with video appearances from the jail you’re likely in the order the jail staff put bodies in video rooms. 

Just make sure the Crown and clerk know you are checked in and on which files. Then hurry up and wait. 

[CleanHands]

5 minutes ago, Hegdis said:

Just noting the use of clerk to describe student - not a practise in BC. In BC you are an articling student. 

NGL @Phaedrus has referred to articling students as "clerks" on this forum for years and it initially confused the shit out of me until I figured that out. 😛

[Phaedrus]

Ah,  my bad. They - me, my peers, etc. - were all "clerks" when articling in my province. Thanks for correcting that!

As for video appearances and Crown called dockets, that's a good nuance to keep in mind @Hegdis!

[Hegdis]

Apparently in Alberta defence call the list. I did not know this until recently. 

[Diplock]

4 hours ago, Hegdis said:

Apparently in Alberta defence call the list. I did not know this until recently. 

Wtf, really? Who in particular? Anyone who happens to show up?

[Hegdis]

A friend of mine who practices in Edmonton half the time walked right up to the podium in Vancouver and called his file while the Crown was momentarily distracted by other counsel.

The look on Crown’s face was fantastic. You would think everyone had turned into a jellyfish they way shock and confusion and finally bemusement chased across their face. 

The judge had a good chuckle. Wasn’t until the morning break that anyone enlightened defence counsel, who felt a bit silly but was shocked to learn the Crown - who is always present - determined the order rather than whatever defence counsel was ready to go. 

[BrotherShamus]

@Phaedrus@Hegdis

Thank you for the advice! This has been very helpful. I've got a lot of prep to do.

[N. Mink]

On 11/7/2023 at 2:08 PM, Hegdis said:

Apparently in Alberta defence call the list. I did not know this until recently. 

Bizarre. Can’t imagine that working at all. 

[SNAILS]

I wanted to add that some jurisdictions have a sign up sheet for case management court. Some have a column for "counsel" and a column for "students, paralegals and agents." Some call the list on order of who signed up first, regardless of status.

I have never got the impression that senior counsel felt disrespected by me speaking before them. Often, my matter takes 60 seconds while theirs might take 20 minutes or hours.