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Confessions of a Prosecutorial Defence Lawyer

Switch hitting. Going over to the dark side. Seeing the light. I’ve been the target of a lot of clichés since my decision several months ago to dip a toe into the waters of becoming a per-diem Crown Attorney. My motivation was a desire to gain a deeper understanding of the machinery that inexorably grinds our system forward inch by inch (and not by the laughable pay rate that has the dubious distinction of being the only legal remuneration to make Legal Aid funding appear moderately generous). After spending nearly fifteen years exclusively as a criminal defence lawyer, my sporadic foray into prosecuting crime has yielded a few unexpected surprises.

Missing in Action

In my relatively small boutique criminal law firm, it’s not uncommon for a file to pass between three or four sets of hands over the many months it typically takes for a case to come to trial. Factor in the half-dozen or more court appearances that are often required and it comes as no surprise that once or twice a year, a frantic search is launched to track down some vital MIA document that has escaped the confines of its manila file.

Multiply the number of files by 10,000, stir in the hands of a dozen disparate Crown Attorneys and staffers who may touch a file before it is ready for trial, and the potential for misadventure is magnified dramatically. Crown briefs will cycle from office to office making periodic field trips outside the confines of Crown control entirely as they meander leisurely through a courthouse occupied by police, bail program, legal aid, mental health, and victim witness programs. While I still complain loudly and vocally when Crown hiccups affect the rights of my defence clients, I have a new found appreciation and understanding for the challenge of managing the gargantuan task of shepherding so many files to trial. Having seen first-hand the volume of cases and the number of hands touching each file at different points in its lethargic progress through our labyrinthine system, I’m now surprised AWOL disclosure SNAFUs don’t happen more often.

Defence Lawyers Don’t Get No Respect

Once I figured out which side of the courtroom to sit on (a habitual mistake I have made repeatedly in my few Crown forays) I began to notice a remarkable attitudinal change. Subtle at first but unmistakable. Respect.

Not the grudging professional courtesy won by years of battling through countless trials as a defence lawyer but rather an instantaneous, freely-given deference extended to me as an agent of Her Majesty. While such workplace camaraderie might be expected by my new colleagues within the Crown’s office, I was most surprised to see how easily and automatically I became a favored son to staff, court officers, clerks and – most surprisingly – even Judges.

Curiously, the benefits of this Crown aura seem to cling like sparkles from my eight-year old’s arts and crafts project. Weeks later in my routine as a defence lawyer, I was still finding doors opened – figuratively and literally.

Drawn and Quartered

Despite all the complexity and nuance that legitimately clouds the day to day challenge of a defence lawyer, there is a certain binary nature to the practice. Within the bounds of our legal ethics and professional responsibilities, defence lawyers answer to only a single boss: the client. Life as a Crown is not nearly so monochromatic.

Sitting in a cramped office early in the morning before a trial, a litany of police officers, victims, civilian witnesses and defence lawyers shuffle through the door each pitching me their own unique perspective on the trials of the day. There is a real danger of ‘decision paralysis’ when a defence lawyer previously tasked with the sole responsibility of zealously advocating on behalf of a single individual is suddenly thrust into the quasi-judicial role of the prosecutor. I confess to feeling briefly overwhelmed as I transitioned from lone-wolf master-of-my-domain on Tuesday only to find myself a tiny cog in the vast machinery of justice on Wednesday.

Conclusion

A smattering of days playing at being a Crown don’t quite qualify me to claim that I’ve walked a mile in those shoes, but my short jog in prosecution sneakers has provided me with a fuller appreciation of the disparate voices in our struggling system. It’s an eye-opening mind-broadening experience that I whole-heartedly recommend to the entire defence bar. Now, if only there was a program allowing my Crown colleagues to take a brief defence sabbatical. Pushed from the cozy confines of their governmental mothership into a world in which you claw and scrape to win a client’s trust only to learn that their last retainer cheque bounced, Crown’s might come to appreciate the unique, and often thankless, challenge of championing the rights of a genuinely sympathetic soul ensnared by a vindictively untruthful witness or a blindingly overzealous police officer. The benefits of such an exchange program would create immeasurable improvements across both sides of the courtroom aisle.

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Comments

  1. David Collier-Brown

    In a previous life, I was on a team that fought the “escaped document” problem to at least a draw.

    In those days it was Siemens who offered a document scanning system to the world: stick a bar-code on a document, drop it in the hopper and its contents get scanned and inserted into the proper folder, on a write-once, read-many disk.

    You could then lock the master copy in the files, and let everyone view the scanned image, and submit additional images as new documents came in.

    This easily worked for a 300-person insurance company using the somewhat unimpressive hardware of the day, although 50-person firms were typical.

    I expect a modern document service could help most organizations suffering from an “N times M” problem: N files, M people, N*M chances of losing the file (;-))

    It doesn’t speak to the experience of working on different sides of the courtroom, but it does speak the frustration of trying to keep track of too much work, on either side of the aisle.

    –dave

  2. I don’t think walking in someone else’s shoes is for everyone. To use the hockey analogy: It is tantamount to a seasoned forward (knows how to work with the front line) suddenly being positioned as a defence man (protect the goal and centre ice). How will she/he perform?
    The goals are different, which is precisely your point, but rarely does a hockey player have the necessary skill set or the talent to play both positions effectively. I can see your novel idea working well for a few elite legal players like yourself. I enjoyed your refreshing insight into life on both sides of the fence.