Considerations to assist you in hiring your Criminal Defence Lawyer
Considerations to assist you in hiring your Criminal Defence Lawyer
Never been in trouble with the criminal justice system? Searching for a Calgary criminal lawyer? Never had the need to hire a defence lawyer until now? I imagine that many folks in this position are perusing the internet for their lawyer of choice and may feel a bit overwhelmed. After all, what do you look for? Does the lawyer have a website? Does the lawyer have Google reviews or other reviews? Does the lawyer appear to know what he or she is doing?
I have previously blogged that the best marketing lawyers may not be the best lawyers. I warn you that this comment applies as equally to my online presence as to others.
The fact that a lawyer has a website, a hundred reviews (or even hundreds) and appears to present online with words to indicate that he or she knows what they are doing doesn’t mean that the lawyer advertising or marketing for your business is the best lawyer or even a competent lawyer.
To reiterate, these words apply to my marketing as equally as they do to every other lawyer’s marketing. This advice applies to my reviews as much it applies to every other lawyer’s reviews. Any lawyer can market – any lawyer can advertise; not every lawyer is competent, equipped or capable to defend a case.
Even if a lawyer is competent and qualified to handle a case, this doesn’t mean that the lawyer is necessarily operating or performing in circumstances such that he or she can best handle your specific needs.
Finally, every lawyer has their own individualized practice style; meaning, though a lawyer may be incredibly gifted at defending the type of charge you are facing, that gifted lawyer may have a practice style or personality type that doesn't fit well with you.
This post is not to rehash my previous article about lawyer advertising; rather, it is written to identify some considerations for hiring a criminal defence lawyer. I will also speak a little about myself.
My Practice Model
Every criminal defence lawyer has their own practice model and communication style. Some criminal lawyers practice in large firms, some in small firms, some on their own.
As a criminal defence lawyer with – to date -- nearly two-and-a-half decades of criminal law experience, I can tell you that I have worked in a variety of different legal environments. I have worked as part of bigger collective, comprised of a relatively large battery of staff, associates and students. I have also worked in smaller independent organizations. I worked for Government.
Today, I run a small, well-oiled boutique criminal defence practice. Where in the past I ran a higher volume practice, today I work on far fewer cases.
There are advantages and disadvantages to every practice model.
For example, while in the past I was certainly able to manage a high-volume practice, I found that dedicating myself to files within this practice model required me to divert a lot of work downline, which included having staff or juniors working on files and communicate with my clients. Notwithstanding that in-court results were usually successful, many clients did not appreciate the lack of direct, personal communication from me. Also, the more people working on your case, the greater the likelihood of higher legal fees. I have always tried to sensitive to my client's wallet.
Services
Presently, I only accept the number of cases and clients that I can properly manage and defend on my own on an annual basis. This means that I do not take more cases than I can personally navigate.
To best temper the disadvantages of my small practice, I am very careful screening both cases and clients. This means that I may not take your case. Please don’t take this personally, for if I do not take your case there is a good bet that I am of the view that I am not the best position to give you the best service. There are some lawyers who will greedily gobble-up ever case. I question whether those lose lawyers have always put themselves in the best position to do the best job for each of their clients.
I understand that lawyers are human and nothing is perfect. However, there is a point where overwhelming volume undermines performance.
I am a criminal defence lawyer and roadside sanctions lawyer only. If you need a lawyer to handle a case that does not involve a criminal charge or roadside sanction, I am not the lawyer for you. Should I quickly triage your case as falling into an area of law that I do not practice, and move you along, please do not take this personally; for I cannot give legal advice outside my area of practice.
When I take a client, I try to offer personal service; meaning that a call, text or email from a client generally receives a return response within 24 hours. Of course, since I focus on the case directly in front of me and in court, if I am in trial or hearings, there can be communication delays.
Another downside to my practice model is that I must be very careful taking on heavy disclosure cases or cases that require my attention in court for extremely lengthy periods of time. This doesn’t mean that I will not accept these cases, it just means that when I do, clients pay for those services. Though I receive many requests to handle these kinds of cases each year, it is not unusual for me to refer some of these clients to other lawyers because I simply don’t have the time to best manage the case. If this happens to you, please do not take it personally; for you want a lawyer who has time to work on your case.
In my view, if a lawyer cannot devote the appropriate amount of time to a case, the lawyer should not accept the case. If you have been charged with an offence, you deserve the lawyer's full attention when your case requires it.
A word of advice, if you have a heavy disclosure case, there are advantages to hiring a lawyer who works as part of a larger collective. This is so because some work can potentially be filtered down through the organization to associates, students or paralegals at a lower billing rate. Accordingly, if you are looking to hire a team of lawyers, students and staff, my practice model may not be right for you.
For my part, a practice relying on the work of others generally doesn’t work for me because my personality doesn’t allow me to have complete confidence in the work of those others. Please understand, the fact that I need to be directly more hands-on doesn’t mean that my practice model is better or worse than the team approach; my model is just different. Given the limitations of this model, however, requires me to properly triage clients and cases at first instance.
Another downside to my practice is that if I am in trial, I focus almost exclusively on the client who needs me to perform for that trial. This means that although I usually offer a very personalized and responsive line of communication with clients much of the time, there are occasions when this is simply not possible. In these circumstances, I ask my clients to be patient with me. That said, if you are a client who requires an extreme amount of personal attention, I might not be the right lawyer for you because there are times I simply cannot offer that service.
Expectations
Before hiring your criminal defence lawyer, it is important for you to first reflect on your expectations and then address those expectations with the lawyer whom you are interested in hiring. In short, make sure that you are both on the same page.
If you are seeking to hire me, my retainer letter outlines many of my expectations. Therefore, before hiring me, I encourage all prospective clients to review my retainer letter carefully. While a lawyer’s retainer letter cannot contemplate every situation, it is my opinion that a proper retainer letter will not shy away from expectations.
In my experience, one of the biggest causes of breakdown in the solicitor-client relationship is disconnect in expectation. Both clients and lawyers have expectations.
In my view, communicating expectations is important because if they are not communicated, the lawyer may very well not be able to meet your expectations or even to address them at first instance. Sometimes clients have expectations that are unreasonable. For example, a client that says "I expect you to guarantee and outcome" is probably making an unreasonable request; for no lawyer can guarantees an outcome because even the best criminal defence lawyers in Alberta do not control the entire legal process. Indeed, sometimes things go sideways for reasons completely independent of the lawyer, case or client. Any lawyer that makes guarantees about outcome is, in the view of this Calgary criminal lawyer, probably not being honest with you.
Focussing again on expectations, just as it is not fair for a lawyer to improperly sell you on his or her legal services, it is also not fair for clients to expect things from their counsel that the lawyer simply cannot deliver. As a client, if you have voiced your expectations and the lawyer indicates that he or she can deliver and within reason, fails to do so, you have every right to be upset with that lawyer. However, if you do not reasonably outline your expectations with the lawyer prior to retaining, then it may be that the lawyer was not put in the best position to meet your expectations.
Succeeding in the lawyer client relationship is not only about the case, it is about the experience. A lawyer who is doing a terrific job in court may still lose the confidence of his or her client simply because the client’s expectations were not met. Put another way, your criminal lawyer may be qualified to defend your case, but if that lawyer fails to meet your expectations as the case progresses through criminal court, you may be unhappy with the lawyer or even lose confidence in that lawyer for reasons completely external to whether your lawyer was doing the best for your case.
Expectations and Control over your case
It is important to understand that there are many things outside the control of your defence counsel. Disclosure and early case resolution are examples of this. Guaranteeing outcomes is also sometimes outside the control of your counsel. Remember, criminal justice is a human process. Just as there are good defence lawyers and bad defence lawyers, there are good judges, bad judges, good Crowns and bad Crowns.
A couple of examples of things falling outside the complete control of defence counsel are disclosure and early case resolution.
It is not unusual for defence lawyers to hear clients complain about the length of time it takes prosecution services to deliver disclosure. Some clients even blame their lawyer when there are delays.
If your criminal lawyer requested disclosure at first instance, followed up that request in a timely manner and ultimately lodged a concern with the court after the usual channels have been exhausted and ignored, that lawyer has done nearly everything he or she can do within the parameters of a usual retainer agreement, without increasing your legal fees.
Notwithstanding that it appears a few prosecutors view disclosure as more of a suggestion than a rule, the fact is, the prosecution must comply with its disclosure obligations. It is not unusual for judges to shrug off defence complaints about delayed disclosure. It is not unusual for one crown to blame another for disclosure problems. It is not unusual for prosecutors to assert that they are busy.
My point is, your defence lawyer only has so much control over the situation. To be sure, your defence lawyer can formalize a motion for disclosure with hope that the court will order the production of materials, but such an application will likely increase your legal fees. In my experience, for a variety of reasons, the best approach is to assert your disclosure right and if possible, to be patient; for disclosure will, in almost every case, eventually arrive. In these instances, there is some wisdom in tempering your expectations. Of course, in-clients definitely have a good reason to be far less patient.
As aforementioned, early case resolution (ECR) from the Crow is another area of frustration for some clients.
My practice style is to be reasonably patient awaiting ECR from the Crown. I say this because while I understand that your criminal case is very personal to you, the fact is, your case is one amongst thousands progressing through the courts. Just as defence counsel must be afforded a reasonable opportunity to review disclosure and to receive instructions from the client, the Crown must be afforded a reasonable chance to provide disclosure, review the case and to consider resolution options. This is another area where it is more often best to be patient and to temper expectations.
These are just a couple of examples where it is important to reasonably temper expectations in relation to issues that your lawyer does not have complete control. Of course, every client must be assessed on a case-by-case basis. The client's individual circumstances certainly guides the level of patience to be applied to a given situation.
Lawyer’s Personality
Perhaps one of the most important things to consider before hiring any lawyer is to reflect on your personality, while at the same time, making best effort to assess your prospective counsel’s personality.
Personality is important. Lawyers are human and as such, have personalities unique to themselves. Some personalities mix well, others not so much.
Client’s and lawyers can easily clash over personality differences. To that end, some clients require a lawyer with a soft touch, others prefer their lawyer to be more blunt.
Full disclosure, I tend to fall on the blunt side. I am the kind of lawyer who may be less patient with client’s who I perceive to be bullshitting, tangential, unreasonable or ridiculously time consuming. To be frank, I can also be frustrated by client’s who refuse to listen or refuse to follow reasonable instructions.
My point is, the best criminal lawyer may have a personality type that is not the best for you. Therefore, before hiring a lawyer, it is important to consider whether there may be personality clashes because these events can cause breakdown in the lawyer-client relationship.
Summary of Factors to Consider
There are many things that you can do to assist your solicitor-client relationship.
Firstly, reflect on the specifics of your case. Is it the kind of case that likely requires a team of lawyers or can it be managed by a single lawyer? In my opinion, the vast majority of cases are single lawyer cases. Firms selling you a team approach to most cases may be serving their bottom line, not your financial interests.
Secondly, reflect on your expectations for the purpose of analzying whether a particular lawyer is right for you. Use your initial consultation to outline your expectations with the prospective lawyer at first instance. Outlining expectations establishes the foundation for your relationship with counsel.
Thirdly, gauge the lawyer’s communication style. Does the lawyer communicate effectively with you in a way that you understand?
Assess other factors.
Does the lawyer reasonably inspire confidence? Inspiring confidence doesn’t mean that the lawyer is telling you what you want to hear. A lawyer that tells you what you want to hear instead of what you need to hear is probably not the best criminal lawyer.
Assess the lawyer’s personality. Is the lawyer too gentle, too hard, too unforgiving, smarmy? Remember, a breakdown in the lawyer-client relationship because of a personality clash will likely cost you money.
Does the lawyer appear professional? Sporting an expensive suit is one thing, communicating about the case is another. Remember, any lawyer can sell you on appearance, but don't let appearances fool you. You want a lawyer who can do more than merely dress for court.
Does the lawyer present as having experience defending the charge that you are facing? While almost every lawyer will claim to have experience, use your common sense. Listen to what the lawyer the has to say. Take advantage of the free consultation. Compare and contrast the information you receive from multiple lawyers.
Has the lawyer been practicing for long enough to give you confidence that his or her experience actually exists? Notwithstanding that decades of practice certainly links to experience and competence, my advice is not to overvalue this criterion. There are many young criminal defence lawyers who are more than capable of handling a criminal charge. There are also a lot of tired multi-decade lawyers who might cost you more money for little or no benefit in court.
Does the lawyer appear to have knowledge, talent and skill? The word "appear" is important, for if you have never hired a lawyer in the past, peeling beyond the layers of a sales job to discern actual talent may be difficult. My advice is for you to listen carefully and be cautious with any bravado who tries to secure your retainer by simply echoing what you want to hear.
Does the lawyer spend enough time with you communicating during the initial consultation to assess these factors? A lawyer that gives you but a few minutes or less of his or her time during an initial consultation before moving immediately to fees is probably not equipping you with the best tools to make an informed. Please understand, this doesn't mean the lawyer is a bad lawyer, an unqualified lawyer or otherwise, it just means that if the lawyer does not give you a reasonable amount of time for you to make an assessment, that may not be right lawyer for you. My practice is to give a reasonable amount of time, assessed on a case-by-case basis -- usually up to about a 30 minute free consultation (maximum).
When searching for your lawyer, it is important to understand that good defence lawyers are often very busy, so be prepared to use the initial free consultation respectfully and within reason.
Do you want a lawyer who offers in-person meetings? In today's day and age, many counsel will only conduct a free consultation over the telephone. I am one of those lawyers.
With respect to face-to-face brick and mortar meetings, I can tell you that I have largely discontinued this practice. To be sure there are a variety of reasons for this, not the least of which is that there are many avenues of communication that are not nearly as time consuming as an in-office meeting. In-office meetings are in almost all cases, unnecessary. However, some clients demand this kind of service. If this is a service you require, perhaps I am not the lawyer for you.
Of course, for clients charged with extremely serious offences for which communications are reasonably likely to be tapped, in-person meetings are necessary; but for the vast majority of cases, wiretaps or electronic surveillance is of little or no concern and therefore, in person meetings are usually not required.
Does the lawyer practice in a domain relevant to your legal issue? For the purpose of criminal law, it is important to make best efforts to target lawyers who practice in this field.
To be clear, I am criminal defence lawyer and roadside sanctions lawyer ONLY. I will not give legal advice to people unless their case falls within my domain of practice. I routinely receive calls from people who want me to sue others, defend lawsuits, handle corporate matters, employment issues or medical malpractice issues. Since I only accept criminal law and roadside sanctions cases, if you have a case that is not squarely within these domains, there is a high likelihood that I will quickly triage the interview by recommending that you contact a different lawyer.
I routinely receive calls from people who want employment advice. I am not an employment lawyer.
I routinely receive calls from people seeking immigration advice. While I have a working understanding of immigration issues as related to criminal law, I am not an immigrating lawyer. I cannot give legal advice on immigrations matters.
If you are looking to hire a criminal lawyer or roadside sanctions, ask yourself: does the lawyer practice in the field?
Many lawyers will claim to be able to handle a criminal case, but I can tell you in no uncertain terms that there are few non-criminal litigators who have the courtroom experience of criminal lawyers.
The reason is simple: over a lifetime even the most court savvy non-criminal litigation lawyer will only have a fraction of the courtroom experience of a real criminal defence lawyer. Criminal defence lawyers spend much of their career actually in court, actually fighting cases, actually examining witnesses and actually making arguments.
Therefore, I recommend that if you have been charged with a Criminal Code offence or a roadside sanction that you hire a lawyer who has dedicated his or her practice to these fields of law.
Conclusion
In sum, I cannot possibly outline all of the factors for you to consider before hiring a criminal defence lawyer. There are many elements specific to you, to the case and to the individual lawyer that can be addressed during the initial consultation.
Treat your initial consultation as an interview for that lawyer's services.
My hope is that this post succeeded in giving you some tools to assess your prospective counsel while at the same time, honestly telling you a little about myself before you choose to hire me.
If for whatever reason I don’t pick up your call, please don’t take it personally. If you are calling about a criminal matter or a roadside sanction, leave a message and I will almost assuredly call you back.
If for whatever reason I don’t return a call, again please don’t take it personally. Should that occur, I am probably extremely busy or perhaps even away from the office.
There are many criminal defence lawyers in Alberta who will gladly accept your retainer. It is your responsibility to hire the right defence lawyer for you.
I advise almost every potential client that I want their business and that every criminal lawyer is my competition. However, I also strongly encourage almost every potential client to do their due diligence before hiring their defence lawyer. There are many Calgary criminal lawyers to choose from, but the fact is, not every criminal defence lawyer is best suited to handle you or your case.
I wish you all the best in your search.
David Chow
Calgary based criminal lawyer