Law Times

Law Times • December 13, 2010 FOCUS Avoiding judges' trash talk Panel offers advice on gaining credibility with the bench BY GLENN KAUTH Law Times them, says Ontario Court of Ap- peal Justice Marc Rosenberg. J udges talk to each other, and the topic is often about the lawyers who appear before "I hate to tell you this, but we do talk," Rosenberg told an audience of young criminal defence counsel at the Crimi- nal Lawyers' Association's con- ference for young lawyers on Nov. 20. Rosenberg was part of a Case highlights need highlights the importance of getting written instruc- tions from clients, the law- yer for the accused says. "A lot of lawyers take for written instructions A BY GLENN KAUTH Law Times recent robbery case in which a judge struck a guilty plea guilty pleas without written instructions," says Toronto defence counsel Selwyn Pieters, who calls Superior Court Justice Christopher Speyer's decision to strike a guilty plea in R. v. Wright an unusual move. Pieters took over Omari Wright's defence from Douglas Ush- Selwyn Pieters er following the guilty plea. Wright originally pleaded guilty to robbery with a firearm on May 31. The charge carried a mini- mum jail term of four years and stemmed from an incident on Dec. 15, 2007, in which Wright and another man allegedly en- tered an apartment in Toronto. The other man allegedly had a gun and proceeded to demand wallets from people inside, according to a transcript of the proceedings in May. At the time, Wright said he was entering the plea volun- tarily, but in the Oct. 25 decision to strike, Speyer said he didn't believe that was the case. "There are two particularly un- satisfactory things that happened on May 31," Speyer wrote. "First of all, Mr. Usher, who is a seasoned, experienced defence lawyer, did not obtain written instructions from his client whereby everybody could be informed that Mr. Omari Wright understood not only what he was pleading to, but what the consequences of his plea would be." Speyer added: "The second thing that happened that day . . . is that I certainly noticed a hesitation and a reluctance at that time by Mr. Omari Wright to plead guilty." Speyer was further critical of the fact that Wright pleaded guilty only after Usher saw that all of the Crown's witnesses were present in court and there was no clear defence evident to him. At the time, jury selection in the case was about to take place. The evidence against Wright was "very powerful," Speyer noted. Pieters says he brought the motion to strike the plea after Wright came to him seeking new counsel. He notes that while clients in general will sometimes seek to recant guilty pleas after the fact — under the guise, for example, that their lawyer pressured them — "very rarely are they successful." Pieters acknowledges that plea discussions with clients fol- lowing negotiations with the Crown can be difficult. "Any form of negotiation involves stress," he says. "Stress and duress are two different sides of the pendulum." But in Pieters' view, it's important to refrain from applying too much pressure, particularly if it involves tactics that could later get lawyers into trouble, such as telling clients they'll no longer represent them if they don't take a plea offer without giving them enough time to seek new counsel. "Remember, they're making the decision in the final analysis, not you," he says. For his part, Pieters protects himself by having clients sign a let- ter saying they've seen the evidence, admit guilt, and are doing so voluntarily. The letter also states the client is satisfied with Pieters' representation. In addition, he sends them a separate document outlining the Crown's offer and a summary of recent sentences handed down for similar offences. It notes a judge could punish the accused more harshly than the sentence the Crown is offering but acknowledges the client's right to disagree. In light of Speyer's decision, Wright's matter went to trial this month. A decision is now on reserve. Usher, meanwhile, declined to comment on the case. "I only attended the matter very briefly and wasn't there for argument and submissions," he says. LT Untitled-3 1www.lawtimesnews.com 4/14/09 9:00:22 AM Medical malpractice litigation is one of the most difficult and challenging areas of law. At Thomson, Rogers we enjoy a reputation built on experience and skill in prosecuting these claims. Above all else, our greatest asset is a proven record of success. Contact our Medical Malpractice Litigation Group: Denny Dixon, Richard Halpern, Wendy Moore Johns, Sloan Mandel or Aleks Mladenovic. THOMSON, ROGERS Barristers and Solicitors 416-868-3100 Toll free 1-888-223-0448 www.thomsonrogers.com YOUR ADVANTAGE, in and out of the courtroom panel of three judges giving their thoughts on how new law- yers can gain credibility with the bench. As he noted, trust is key, and if judges don't believe they can rely on someone appearing before them, word gets around. "It's difficult to persuade some- one that your case is a valid one if nobody trusts you," he said. Many of the judges' recom- mendations for gaining credibil- ity were somewhat obvious, but as the panellists pointed out, that doesn't mean lawyers are actu- ally doing the things they suggest. "Be on time," said Justice Mara Greene of the Ontario Court of Justice. Being late, she noted, is "a really good way to make a judge testy from the get-go." It's also important to be pre- pared for issues young lawyers may face in court. "Read the dis- closure," Greene said, adding that when she comes across counsel who haven't done so, "it's a cue to me that I can't trust you to do your job properly." At the same time, lawyers should research the legal issues that could arise in the course of a proceeding, something Legal Aid Ontario may not pay for. For her part, Greene said that in her early days as a lawyer, she'd make fold- ers of legal memos related to issues that could arise at trial. Greene acknowledged the challenge young lawyers face in trying to make money at low legal aid rates. But while that sometimes means running be- tween several courtrooms, "your trial court should be your top priority," she said. For Justice Shaun Nakatsuru, also of the Ontario Court of Jus- tice, lawyers should be aware that judges are watching how they conduct themselves in court. "We can see how you interact with the Crown," he said, noting lawyers should be careful in how they treat their clients as well. "We'll know you're the type of lawyer who doesn't like your client," he said, adding that de- spite other signs that a lawyer is competent, judges remember the little things. Rosenberg, meanwhile, said that although most appeals don't succeed, lawyers should still make efforts to appear be- fore his court. "Come to our court," he said, emphasizing the differences between matters at the trial and appeal levels. "When you come to our court, you have to assume that we have a pretty good knowl- edge of the case," he noted, adding it's rare for the appeal court to rule there was an error in findings of fact at trial. The challenge, then, is for lawyers to have a solid understanding of the legal arguments at issue. So if they're making a point about hearsay, they need to know ex- actly what hearsay is. Other recommendations from Rosenberg to lawyers include not rolling their eyes when a judge asks a question and not rehash- ing their arguments. At the same time, they should avoid popping up when someone else is talking and be forthcoming when a judge asks them something. "Answer the damn question," Rosenberg said, noting his colleagues get very frustrated "when there's a question that has a yes or no answer, and the lawyer won't answer." It seems to be straightforward advice, but as Rosenberg pointed out, not following it can harm a lawyer's case. "It seems to be the little things that really set the wrong tone." LT Unmasking the mystery. PAGE 11

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