Monday, November 06, 2006

Still grinning at 40!

Friday, March 31, 2006

Thankful happy clients doing time.

Friday came around and was every bit as full on as I thought it would be. I had taken a large bag home with my large files within it, and had been at work at home from around 7.30. Working at home like this, at least I'm not interrupted. I made it into court in time to deal with my matters.

I had four sentencings listed, all with clients in custody, all with serious offences and records. For three of them I had psychological reports, and one had a psychiatric report as well. For three of them, their matters were finalised. Each of these three was smiling with tears of joy in their eyes as they were taken back to their respective jails for a lot less long that what they had expected. This is a weird job when you have thankful and happy clients doing time. My own opinion, they got as good a result as they were likely to.

The fourth sentencing matter is not finished. The magistrate refused to proceed after reading a long epistle from my client. That epistle caused two major problems, one was that client said he's not guilty of some of the offences he was to be sentenced for, the second was that there are very major allegations in it of a lifetime of abuse in the prison system. The magistrate called for a psychiatric report (I think to see if my client is delusional about the allegations). The disputed matter is one that had been pleaded to before I had client under my wing. I think that he pleaded to it for his own ulterior motives (and not a simple convenience plea). I will flick that back to his original lawyer, I reckon I'll hang onto the issue of prisoner abuse. This client too appeared quite happy at the result.

There was a fifth matter in court, a young man who has totally failed to come in and see me to provide instructions for the half a year we've known each other. He seems to think it can all be done on the fly. His dreams are soon to end, as he will be sentenced next time and is almost certain to go to jail. Lucky for him he has a magistrate who was prepared to leave him on bail until then...

Enemy Territory

It's been four days since my victory at trial. I think that's the longest gap between posts on this blog. Quite amazing if you compare it to my initial expectations!

The reason for the delay has a fair bit to do with the fact that I've been pretty busy at work. Following is a brief snapshot of the week's middle three days, all of which had the fact the approach of a fairly stressful Friday hanging over their various activities:

Tuesday - late start as had to be at home for a while while a plumber visited. Went to Remand Centre for hour visit with a client who I have previously been double booked for twice and thus turned away. Again, this was the last opportunity to see him before important hearing on Friday. I was a bit tentative as I entered the Institution, expecting the worse. Strange to say, the guard people were greeting me by name as I passed through the door, I didn't have to fill out their paperwork and I was passed straight through to seeing him in his unit where a special visit time had obvulessly been arranged (there were no other prisoners having visitors in that unit at that time). They had obvulessly agreed with my sentiment that I didn't want to raise the impossibility of my visiting him in court!

That afternoon I had a trip out to the women's prison, got there 15 min late due to traffic, prison staff gave me an extra 15 min with client at end of visit. They're not usually this friendly.

In between my visits, I ran around to court and conducted some necessary checks on situation of a client I inherited from another lawyer months ago. Doing so, I learnt that he has contradictory bail conditions in his two matters...not sure what I'll do about this.

Wednesday - was a court day, and I fitted in a visit to Remand Centre at lunch with a visit to another client who was to appear on Friday. When I got there, they told me the visit was booked for Thursday. No use arguing, so I suddenly had time to eat on my lunch. No disasters at court.

Thursday - Court appearance in morning for a pre trial conference. This was the matter for which a cop had previously told court that he was personally and inexcusably responsible for various delays in considering our offer of negotiation to a lesser charge. Again, this client due in on Friday also for finalisation. Again, nothing we could do about the situation. The interesting thing here is that the same cop had been denied authorisation to comply with our (reasoned and fair) request, and had then gone and made his own queries with investigating officer anyway and got their potential police trial witnesses to agree with our position. He was going to go back to his boss for authorisation, with the opinion of all others involved in the case to the fact that we were right and they couldn't win with their current position. I then raced back to the Remand Centre to see the client I had seen the day previously, and was surprisingly given a second visit to piggy back onto the first which gave sufficient time for myself and client to work through a large amount of stuff in time for the following day.

I spent the final hour of the day doing my own couriering of various psych reports to the prosecutor so he would have time to read them before following day, as I knew we would be busy and the magistrate wouldn't like unnecessary delays. Had a pleasant chat with this fellow in the heart of what I regard as enemy territory.

I'll give the Friday a separate post, as this one is long enough.

Monday, March 27, 2006

Long trial post.

Today I again ventured forth into trial for a client. This was only my third trial that actually ran in the four and a bit years for which I’ve been a practicing criminal lawyer (I’ve also had one disputed fact hearing in that time).

This trial had a very different feel leading into it than either of the last two. Like them, it had fairly limited amounts of witness data to process through its machinery and, like them, it had a single day set aside for it. As with all my trials, it went longer than the predicted morning session. Well into the afternoon, in fact. Also similar to them, one witness a side, and tendered police statements.

Not a single objection by either side, a degree of civility between prosecutor, defence, defendant and sheriff’s officer before the matter commenced.

Me and my client had worked on his recollection, viewed the site of the alleged crime, worked on the issues and plotted tactics together. We had identified the weaknesses of our case, and of the opponent’s. We had worked out how we would approach them. I had examined ‘the law’ on the matter - not for theoretical understanding but for practical application. I had basically taken the Rumpolean approach (‘look after the facts and the law will look after itself’), which certainly allowed for inclusion of my client in the process a lot easier.

Finally, we had worked recently on what was involved in a trial, from what to expect and how to speak, to getting in the prosecutor’s head and the psychological game. We were as prepared as we could be (which is to say that we knew enough about all the areas in which we weren’t prepared to be worried).

I’d spent the night before putting together my closing speech, and notes on cross examination of opposing witness, examination in chief of my client and critical commentary of police statements we had previously agreed being tendered. The theory was that I had to ensure that all points in the closing were raised in the evidence, and that all contradictory matters of fact with the witness in person were raised as such when he was on the stand. I then spent a fairly uneasy night while a lightning storm disrupted the few hours of sleep I had allowed myself.

Arrival at court was different to the usual Monday appearances, I had a certain level of worry in my expression and adrenalin in my blood that marked me as about to go into combat. This was commented on by others.

In the call over court, we were first allocated one magistrate, and then given another. I had respect for both of these magistrates’ knowledge of the law, and they are both regarded as not unfair (to my knowledge) when it came to the facts. So, either way, we hadn’t got a short straw.

The trial itself had its ups and downs. I think my client was amazed at the amount of writing I produced in a few short hours. My prepared notes held up, allowing me to effortlessly ensure that I had covered all necessary areas of testimony for each of the witnesses before ending questioning. I also didn’t have to write a lot down during my questioning of them, as I knew one way or the other much of what was said. The surprises were mainly given me by the way my opposition managed to clarify those areas I wished to be clarified that I hadn’t done a full job on. I don’t know what he was proving, because he was certainly attempting to win.

It was in the cross examination of their witness that I noticed the major development of my technique since last occasions. I wasn’t told off by the magistrate for any faulty questioning, the witness understood me each time. In fact, we built up a rapport as he proceeded to sabotage his side’s case with our mutual understandings. I did it without putting the witness offside – it was a barrage of questions that revealed his ignorance in a non hostile and understanding manner. I was almost apologetic in contradicting him, and he then came some way towards meeting me on the points I was making. Probably interesting to the magistrate, who hasn’t seen me in anything except pleading mode.

I know that by the closing speech he was genuinely interested in the case we had on offer. I started by stating the point of law which would guide my exposition of the evidence – the issue of intent. That all the facts he could reasonably find, whether they went for or against us on the face of it, were corroborative of our position on what could be inferred about my client’s intent at the time. I understated our position, and demonstrated that it was still sufficient for our defence.

I even used the rhetorical ‘trick’ of reading the tendered statement’s most damaging portion with an alternate punctuation – which totally changed the gist of it. As I did this and justified it by explanation to the magistrate, I wondered if this was going too far. I think not, as he quoted me in his judgement. Similarly, the parallels we had drawn between my client on stand and his conversation to police over a year before were obvulessly routed in the same factual elements. This similar topology could probably be stage managed to greater effect in future (the trick in so doing would be to pick the right cases so that it isn’t artificial). In this case, it happened to be a natural fit.

Someone said later that they wished they had such ‘insight’ or ‘knowledge’ into the law to pull off arguments such as this. That was a bit fair, I think, almost as though I had tricked the court into seeing things my way. I look at it more as having helped it see my way, by making it clear to do so. This is done almost as much by the structuring of the facts as presented as it does with the strict factual content of the argument (assuming that there is some substantial basis in the first place). Hard to put it clearer than that.

The upshot of it was that we were vindicated, a finding of ‘not guilty’. The reasoning was based on a legal analysis of what we had done with the evidence – demonstrated that the prosecution case was circumstantial in that it was based around inference of intent, and that there was a reasonable hypotheseis consistent with innocence.

Sweet victory.

Tuesday, March 21, 2006

Call out the plumber

Having already referred in this blog to the poisoned well and the draining effect it should surprise no-one that we had to call a plumber out to our home today. Well, last night actually. It was a more serious job than the man expected, and so I had to get home early today to meet with the follow up team as they made the water work (both ways!). And it will require me to stay home much later than usual one day next week. Which creates the fact that all of a sudden I have less time at work than I had planned to do what needs doing. Lucky I'm so organised:)

Today, I got to work early, and managed to get out more letters. I also saw a client at the Remand Centre in the morning and made a few vital connections via phone through the day, generally organising tasks for later in the week.

Through it all, I managed to update myself with the bare objective facts of a client's case which is listed for argument tomorrow afternoon. This client seems to have been avoiding me, despite his assurances that he has understood my imploring requests for him to get in and see me before the argument. I even told him that my time is so busy that I can't chase others down, my day gets quickly filled with tasks from those who do catch hold of me, let alone me hunting down those that don't.

Believe it or not, that was six hours of my day, and I was stuffed at the end of it.

Monday, March 20, 2006

Apparent sychophancy

Today was one of those busy Mondays which one takes in one's stride. Got to work pretty well on time, and had all my files laid out with all available information when I got there. This allowed me to time to book myself into various correctional institutions at different times to my convenience through the coming week, when I only have three court days, and then review each file prior to heading over to court.

In three lists, I appeared in three courts. Eight clients appeared before the one magistrate. It was refreshing, after the staid in the trenches approach of the magistrate I've mainly had to face for the past two months, to have an efficient and decisive magistrate of few words but high perceptivity. He also gives the concepts of procedural fairness and fair go more than paper weight. Of most value to me as a lawyer, when added to these traits, is his independence, a willingness to make up his own mind for his own reasons (and that aren't automatically adverse to my clients). Just in case you're wondering about this apparent sycophancy, he is also the only magistrate I've actually instituted an appeal against.

The other two appearances were a final meeting with prosecution and magistrate prior to a one day trial next week, and a futile appearance for a client who again failed to attend (I have no way of contacting him except by mail, and had tried to warn him). The interest of this hearing was when the magistrate offered to allow me to withdraw from the file... and I chose not to. The determining factor here was that client was going to be apprehended on a warrant, and would need someone to have the fact brought to their attention so that his interests can be watched over (he being unlikely to being up to this himself, suffering as so many of my clients do from various psychosocial problems and having no-one else to do so for him). This is in relation to matters to which he has pleaded guilty.

Of course, I will be applying to get my name off of his trial file as it is one thing to acting on short notice for matters of bail and sentence, it is another to take on the responsibility of a trial without instructions (would be verging on unprofessional, if not negligent). I think I'll speak to senior counsel about it, now that I think of it.

Again, I got out several lengthy letters in the gaps (from Friday's court appearances) and performed a handful of other minor but necessary tasks. All in all, I touched about twenty files today.

Tomorrow, I have all of today's mail to get out, and various strategic tasks to perform.

Friday, March 17, 2006

Poisoned well

Well, it's Friday night and time to blog the last two days.

Thursday - all primed as I arrive at work for all my cunning plans to come to fruition. The initial omens are good as there is the psych report I had ordered a week before waiting for me. Then things start unravelling. I've been double booked to see a client in prison, I had already factored in possibility of my not being able to see him there by forewarning him that I might have to catch up with him at a suburban court I was (sort of) passing. This had been based on presumption that if plan B became necessary it would be because they'd transported him earlier that day. What I hadn't planned for was possibility that I couldn't see him in the morning (despite my booking) and he wouldn't be moved 'til the arvo (when I couldn't catch him at court). Which was a bugger because it meant I didn't see him that day.

Then, on my travels, one of the least reliable cops I've met in my years in the law came through on a specific task to deal with a stuff up of the police which had resulted in a warrant for my client's arrest issuing when it shouldn't have, and remaining out even after it should have been cancelled.

Then, it was take instruction from a client on a doomed case. Ironically, I think we'd found the golden thread after He'd been to see me, but he'd already poisoned the well with the fact finder.

In between tasks, get out heaps of letters from day before.

Day ended with magistrate for a sentencing hearing today (which I had sweated on over the last week) contact me and prosecutor to let us know she was disqualifying herself. Not a bad thing, considering that she's the harshest of available magistrates.

Today, began with the hearing of the disqualified magistrate, went on with poisoned well client (now remanded in custody awaiting sentence also) and the successful client (suspended, got all we had realistically asked for). In between, a bit of research and a lot of thought.

Again, overwhelming lesson was that people will let you down, but not always - cover the corners when organising others, follow your lawyer's advice if you want to succeed.

But I was sure glad to leave the office (once I had laid out the files for Monday morning)!

Wednesday, March 15, 2006

Draining effect

Today was a court day. Got stuffed around on the busses and so was running a little late when I got to work. All got a bit out of hand when I realised I had a hearing to get to half an hour before the usual time. In three minutes! 'Lucky' I had made sure everything was to hand when I left work the evening before. Of course, everything else I had planned to do in that precious half hour before court couldn't happen...

I did the duty in court, nine clients today. No miracles, no disasters. Some unfavourable, but predictable, outcomes - but you shouldn't be a defence lawyer if you can't take the knocks. Of course, neither should you let it grind you down. And you should never ever get used to it.

Somehow I fitted in those various things that needed doing between appearances at court - life before the telephone would have been interesting.

At the end of the day, felt totally knackered. Maybe I'm coming down with something as the weather turns, maybe it was the draining effect of high level of human contact, built on a substrata of stress? Let's see how it goes tomorrow...