By Lorne Sabsay

A paper devoted to all of the mistakes lawyers make could fill many volumes. It would be impossible to catalogue them all here. Making mistakes is part of how we learn to be better lawyers. On the other hand, we can not allow our clients to pay for our mistakes.

What I have attempted to do is make some notes about those mistakes which appear to be some of the most common and irritating to criminal defence lawyers. Like trial preparation itself, however, being forewarned is to be forearmed. By being aware of some of these more common mistakes, you will hopefully avoid them, and in so doing, make the learning process that much less painful.

Mistake: Getting "just the gist" of the Crown's case

Disclosure is one of the most important elements in the preparation of a criminal defence. Too often, inexperienced counsel is caught by surprise in a trial because he or she missed a detail in the disclosure. This happens when counsel only engage in a cursory review of disclosure to get the gist of the evidence against their clients. In my experience, an extremely detailed review of the disclosure material provided by the Crown is essential to the successful defence of any trial.

It is not enough to simply read the disclosure on the night before trial. Proper preparation for trial requires a detailed review of the disclosure provided well in advance of the trial. In fact, you will never know whether you have the whole disclosure picture unless you review it far enough ahead of time that you can recognize any deficiencies or notable omissions.

My own practice is to review the disclosure as soon as I get it. I often make notes of the disclosure because the process of reading it, thinking about it, and physically making a note of it helps me to thoroughly understand it.

This is especially important in the case of police officers' notes. Many of these are very difficult to read. By making your own notes you will know well in advance of trial whether or not they reveal details requiring elucidation through additional disclosure requests. You don't want to find out one week before trial that you can't read the notes and it's too late to order a typed version or if they refer to a piece of evidence you should have asked be disclosed many months before. If the notes are illegible, you can request a legible copy. If one word is illegible you can contact the officer to explain the word to you. If the notes refer to photographs you have not been provided with, you can request them.

There are few things worse than to have your client's evidence called into question by some fact recorded as a detail buried in disclosure you obtained months before trial but never made a note of.

Mistake: Preparing a witness examination "script"

This is actually only a partial mistake. I find it quite useful to set out a series of questions in order to organize my approach to an examination or cross examination. The mistake occurs in never departing from those questions as if they are part of a script.

You never truly know how a witness is going to respond to any given question. If you have had the opportunity to conduct a cross examination of a particular witness at a preliminary hearing you will have a much better idea. But even this is not a sure fire guide to the testimony of the same witness at trial. In fact, it is sometimes better if an adverse witness does testify in a manner inconsistent with their preliminary hearing evidence as this may reflect poorly on their credibility.

The important point is to listen carefully to what the witness says in the witness box. An answer may point you in a wholly different direction than the one you anticipated when preparing your notes. You may discover evidence which is helpful to your case that is worth pursuing only in the context of the trial as it unfolds (but not as you envisioned it prior to trial).

You may receive a better answer than you expected and may wish to stop asking any further questions at all for fear of diluting the excellent point you just made. You may also wish to avoid giving the witness an opportunity to backtrack from testimony which was helpful to your case.

If you blindly follow a script you may not have the flexibility to realize that you should have changed direction and put your success in jeopardy by continuing to ask questions which are no longer relevant or useful, given the witness' unanticipated answer(s).

Mistake: "I will fight every Crown on every issue or die trying."

On the one hand, you do have the duty as counsel to advance your client's interests zealously. But to fight every issue as if the verdict or sentence depended upon it will not advance your client's case. You might feel that as a new lawyer, you want to establish an early reputation as a lean mean fighting legal machine. The reality, however, is that such counsel may often be viewed as intransigent, unreasonable and inexperienced.

If you know that the Crown has ample proof with respect to one element of their case—e.g. continuity—there is little point in litigating this issue. If a reasonable offer is made with respect to sentence in the face of a strong Crown case and a client who is willing to admit guilt, there is little to be gained by refusing to consider a reasonable offer just to show how tough you are.

It ought to go without saying, as well, that this issue goes hand in hand with civility. Even if the circumstances call for an out and out battle on just about every issue (e.g. most impaired driving trials), your approach to your adversary should still be a civil one.

Always remember that the Crown Attorney you are fighting with today may be the same lawyer you are asking for a consent bail release from tomorrow. The Crown you are intransigent with today may be the same Crown you need to work out a deal with for a different client tomorrow.

There will obviously be many occasions when it will be appropriate to take a "no quarter" attitude and to demand "the strict proof thereof" on every issue. This will never be every case however. Sometimes your client's best interests lie in negotiation, not in flogging a dead horse. You must know that it is neither necessary, nor helpful, to battle each and every issue, whether or not it advances your client's position. Your legal moves must have purpose, not just showy bombast. As the great swordsman Miyamoto Musashi said, "Do nothing which is of no use".

Mistake: I will read my prepared submissions ... no matter what

I was once in court awaiting the start of my trial when I observed another lawyer finishing his. At the close of the Crown's case in an impaired driving/over 80 trial the defence lawyer was making submissions about the violation of his client's right to consult counsel in private. Partway through the lawyer's submissions the trial Judge smiled and stated, "I agree counsel, the breath test results will be excluded. What do you have to say about the impaired?" The lawyer continued to read from his submissions concerning the violation of his client's privacy rights. The judge once again, but without smiling, repeated that the over 80 charge would obviously be dismissed but there still remained the issue of the impaired driving charge which was unaffected by the privacy issue. The counsel continued with his submissions about his client's right to counsel in private. Ultimately, his client was convicted of impaired driving.

Just like the cross examination of a witness, submissions to trial Judges must not be carved in stone. You must be able to "depart from the script" in order to answer the Judge's questions or address his or her concerns. Some Judges will simply sit passively and listen to what you have to say. Others, however, will have specific concerns they wish you to address. You do your client no favours by continuing on with submissions in which the trial Judge has no apparent interest. Once again, you must be flexible. In preparing your final submissions you will want to know how to address all of the relevant issues. But if it appears that only half of those issues are determinative in the Judge's mind, then you will want to concentrate on only half the issues.

Mistake: A trial is a trial is a trial. A judge is a judge is a judge.

If you learn nothing else in this panel, learn this: "Know Thy Judge". If you are going to practise criminal law then you will frequently appear before a broad variety of judges. They are not all the same. Some prefer that you be very quick and very "to the point". Others prefer expansive erudite elucidations of the law.

There is no point in making lengthy submissions about the history of the jurisprudence relevant to the case at bar with the kind of judge who simply wants to know why your client's evidence should be believed, or raise a reasonable doubt. On the other hand, some judges will appreciate knowing how your submissions accord with another related decision released by the Supreme Court last month.

The same is true for your general approach to the trial. Some judges are very content to have you thoroughly discredit a witness through a lengthy and punishing cross examination. Others are prone watch the clock (and the voluminous court docket for that day) and may want you to hurry up and "get to the point". If you want to be successful, it is very important that you adapt your approach to that of the presiding jurist.

Mistake: "Oh No! Look at all that evidence they've got against my guy!"

Just because potentially devastating evidence is brought to your attention through the disclosure process, does not mean it's time to pack it in. Quite apart from the obvious possibility that the witness whose statement you are reading is lying, other pieces of evidence may never see the light of judicial day.

Admissibility of evidence is obviously just as important as the content of the evidence. This is particularly true with respect to alleged confessions or statements of your client. In some cases, the "confession" is the only evidence the Crown has which could lead to a conviction. But to be admissible, the confession must be voluntary. Moreover, the police might have breached your client's Charter rights in obtaining the statement. It is important not to panic but to stay current in terms of your evidence law. Not every piece of evidence proffered by the Crown is necessarily admissible.

If you stay current in evidence law you will be able to spot the difficulties the Crown will have in getting that evidence into the trial before you spot the difficulties for your client if it does get in.

Mistake: "Counsel, wasn't that case overruled by the Court of Appeal two months ago?"

There are few things worse than thinking you've got the decisive point won with a decision on "all fours" with your case only to hear these words from the Court. Now what do you do?

It is essential that you keep current in the law. For criminal law, Alan Gold's weekly "NetLetter", available through QuickLaw, is an excellent way to keep on top of the law. Obviously reading publications such as "The Lawyers Weekly" will also be helpful. When you do your own legal research, be sure to update the law just prior to arguing your case. If using Quicklaw, you should go back and check on your cases in the "Quickcite" section just before you go to court to make sure that the case you relied on hasn't been overruled or distinguished in some way that renders the case no longer valid or pertinent.

Mistake: "My client will pay me when he gets off/out."

The reality is that this virtually never happens. If the money is not in your trust account when you finish the trial, you will likely never get paid. This is so whether you win, lose, or get a mistrial. You must, must, must, get your retainer up front. This applies equally to clients who are in custody as it does to clients who are out. The only real difference is that the ones on the inside (of jail) can be even more convincing, owing to their obvious increased desperation.

Unless you truly want to do the case pro bono then you must ensure that you are properly retained well before the actual date of trial. This is often the mistake most frequently made by criminal lawyers. It is also the one they regret the most.