PATRICK J. DUCHARME
CRIMINAL LAWYERS’ ASSOCIATION – 1999
I am asked today to provide some practical suggestions on how lawyers might prepare the defence from the first telephone call to trial. Too general a task? Probably, but I will do the best I can. Our aim will be a sort of variation on the Dale Carnegie theme: how to win clients and influence judges and prosecutors.
Meeting The Client: Be Interested, Stay Interested
A common complaint against criminal trial lawyers is that, at bottom, they tend to show little empathy for their clients. We are said to show more concern for ourselves, and our fee, than for the person who, after all, stands accused of a crime and faces the daunting power and authority of the police and prosecution. It may be true: the longer the lawyer toils away at this business, the greater the possibility that the lawyer will be insensitive to the particular plight of the individual charged. The reason is that while clients come and go the lawyer’s daily experience remains relatively the same. And the more experience the lawyer acquires the less intimidating, the more routine, is the entire trial process. It is not arrogance or indifference which sets in, but the appearance of them. Hence, my first suggestion: be interested, stay interested. No matter how familiar the accused or the offences charged, try to know the client. Really. Know who that person is.
Someone once said that every human being has a thousand faces. Every human being is special and unique. What’s special about your client? Only when you know this should you concern yourself in detail with the manner and timing of the payment of fees. Build trust with the client. When you do, how and when you will be paid will be a natural part of the relationship.
How does one build the trust? Surprisingly, most individuals, unique as they are, have very similar needs, especially when they come to lawyers for help. They need to feel, for example, that their lawyer is eager to take their case. They need to believe that their lawyer is prepared to defend the case fearlessly. You will satisfy this need not only by knowing the client but by “seeing” the case, at least initially, from the client’s perspective, not yours.
Knowing the client, building the trust, involves small steps, none costly. Treat the client like a treasured member of your family. Greet him personally when he arrives at the office rather than dispatching a staff member to fetch him from the waiting room. If someone told you that your mother or father had just arrived in your waiting room, would you send a staff member to get them and bring them to you? Once in your office, remember that the desk itself is a barrier. Remove all barriers metaphorically, if not literally. Ask the question, and mean it: How can I help you?
In this way, the first meeting is always friendly, non-threatening. Some lawyers, not wanting to waste time (“Time is money”), use the first meeting to immediately challenge the client’s story, looking for weaknesses in it, trying to determine what the defence strategy might ultimately be. Patience, I say. There will be plenty of time for critical inquisition later. The first meeting requires more understanding, more listening , more learning.
I am not suggesting here that there can be no discussion whatsoever of fees during the first meeting . But if they are discussed at all, the discussion should occur at or near the end of the meeting. And it should be premised on the client’s need to know the business arrangements, because obviously a major concern of every client is the cost of the service provided. The client wants, needs and deserves to have this information. And that should be the spirit in which it is given. Never, ever, should the premise be that the lawyer does not trust the client and therefore needs certain commitments from the client “up front” or the lawyer will show him the door.
Meeting The Client’s Witnesses: Be Patient, Be Supportive
So far as practicable , you should try to provide the same sort of empathy and support to the witnesses who may be called in support of your client. They too feel vulnerable when they deal with lawyers. Who doesn’t ? But witnesses feel more than usually threatened. Except for the fear of punishment that the accused alone may face, witnesses consider that they are very nearly in the same position as the accused. They are unfamiliar with and usually frightened of the trial process, so they are reluctant to be involved. They need to be made to feel that the lawyer has taken into account their interest as well as those of the accused. They must come to see that the lawyer representing the accused is competent to handle the trial and to present them before the court without causing them humiliation or terror.
To these witnesses, the lawyer should always speak of the accused respectfully even if the lawyer’s personal assessment of the accused or of the merits of her case is otherwise. Witnesses tend to reflect the same attitude towards the accused as that of the accused’s counsel. It is often beneficial to tell witnesses how their evidence fits into the defence evidence generally. Only in this way will they understand their significance to the process and outcome. They should also be advised to respect opposing counsel and to avoid evasive tactics. They should be courteous to all court personnel and respectful of the justice system. They should also be admonished that they are not advocates, but facilitators, advancing a piece of the narrative.
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