Monday, 27 February 2012

The Real Julia

Finally this is over (hopefully).  The caucus confirmed Ms Gillard as Australia's PM, and Kevin Rudd gracefully bowed in defeat.  Ignoring the fact that the most vocal Australian electors wish for Rudd over Gillard, the caucus has, for better or worse, decided to stick with the old.  No surprises, really. 

I await with great anticipation the response to this vehement affirmation of her leadership.  Will this signal a new era of cooperation between the now ex-foreign minister (and ex-PM).  I hope so. 

Here, then, is my question. 

Had there not been such a media storm about Rudd's supposed leaks and politiking, would he ever have declared for the leadership? 

I note he was so hesitant to declare that it wasn't until Gillard called the matter that he openly agreed to contest the position.  I suspect that if the media hadn't perpetrated the stories based on 'a minister close to the PM' or 'labor sources', there wouldn't have been any interest in a spill, and this would all have blown over.

Here are my postulations: 
  1. Most people who were clamoring for a leadership spill were conservatives/Coalition supporters.  
  2. The only people likely to benefit from Rudd challenging the leadership were those in Opposition. 
  3. The media (The Advertiser, Channel 9, etc) is very openly conservative and Coalition-leaning.  
  4. Most of the 'leaks' and rumors were started by the Libs.  
Might be going out on a limb with a few of them, but certainly room for debate!

Vultures and carcasses

I have already spoken here and here about the political and media blowout about the labor government's leadership issues. Here is another article in the Sunday mail by 'commentator' David Penberthy.

Julia or Kev? Take a stab.
"Along the way, pledges have been shredded - none mightier than the carbon tax - to accommodate their demands."  Doesn't this issue seem to be a bit thin now?

Thursday, 23 February 2012

More on 'Leadership Spill' farce


After my post recently (link) about the media blow-up of the Labor leadership crisis, it seems that I will have to eat my words now that Rudd has resigned as Foreign Minister.

Wait what? Not so much. 

What has actually happened?  Kevin Rudd has responded in a typically sooky manner to criticisms against him by Simon Creane and Wayne Swan.  He resigned as foreign minister because ‘I cannot continue to serve as Foreign Minister if I do not have Prime Minister Gillard’s support.’  However the PM has said that Mr Rudd was ‘a strong and effective advocate for Australia’s interests overseas.’  

Wednesday, 22 February 2012

Government bungle means Family Court Australia didn't have jurisdiction for De Facto

Apparently, the Family Court has not had jurisdiction to hear De Facto property matters, even though legislation was passed ceding that power from the States to the Federal Courts.

http://www.theaustralian.com.au/business/legal-affairs/court-bungle-to-hit-de-factos-as-error-throws-property-settlements-into-doubt/story-e6frg97x-1226277646455

It will be interesting to see whether or not people begin to challenge decisions of the Family Court in De Facto property settlements between 2009 and 2011.  Since most Orders are made by consent, I expect most people won't want to spend more money to challenge them, but for the 10% that went to trial, maybe we will see a revisitation in the state Courts!

Tuesday, 21 February 2012

Media blowout on 'Leadership Spill'

This just in... Costello denies leadership spill.  "No, that time is not drawing close."  Oh wait, haven't I heard that before?

What about this?  Gillard talks down prospects of a leadership spill. "I'm getting on with my job, Kevin Rudd's getting on with his. I'm doing that with the strong support of my caucus colleagues."  Wait, that sounds familiar as well.

How about this one?  PM denies need for leadership spill.  "Because I believe Kevin's doing a good job as the Minister for Foreign Affairs and I'm very confident in my leadership of the Labor Party."  Nope, same deal. 

Finally, what does Rudd think?  Rudd:   No leadership spill in prospect.  "Mr Rudd and I discussed the leadership in generalities only." "At no stage did Mr Rudd ask for my support on the floor of the Parliament nor did I offer my support."  Even Wilkie is playing it down. 

But still, we keep talking about it!

Labor leadership spill update:   "Well, she has repeatedly ruled out any suggestion of this but for several weeks now, it's been asked over and over and over. The other key thing here is that the Prime Minister leaves to go to Canada tomorrow for the G20 meeting. He leaves tomorrow afternoon and the Parliament finishes its last sitting by the end of tomorrow. So there doesn't seem to be an awful lot of time left here."
Quentin Dempster discusses leadership spill:  (Ok, fine, that is in the context of NSW, but shaddupstatistics)
Labor's leadership - what will happen?  What is needed?  "It seems as if the only thing people want to talk about today is the leadership of the Labor Party."  Bullshit. 
Jobs for the boys a new Rudd ploy.  "A Victorian MP has said he has heard a similar pitch that ''support will be recognised and rewarded''."   Really? Thank you Mr Victorian MP...
Labor Leadership Spill is on:  This seems to be completely speculative, because "We could be looking at another leadership challenge as early as next Monday or Tuesday when parliament returns."    

So can somebody please fill me in... why the hell does the media keep banging up stories of an impending leadership spill when the two parties involved are categorically denying it?  Does the media think that by asking the same questions again and again, the answer will change?  

#sickofthisshit

  

Monday, 20 February 2012

Lowering speed limits; too far?

South Australia recently reduced its maximum speed limits in a 100km radius of the city from 110 to 100km/h on all but three major highways/freeways.  What a joke!

The justification for this was that it will save lives.  The media was given a rehearsed list of statistics showing that reducing the speed limit saved x number of lives per year, and that it only added 10 minutes to the average journey, and finally that it saves petrol.  They government said that any lives saved were worth the inconvenience of a bit longer on the road.

Respectfully... bullshit.

SA Licensing becoming ridiculously hard

[Edit per May 2013; this is now out of date... it is harder still.]

Congratulations, happy birthday, all that, you just turned 16 and got your L's.  Well, you went and paid $35 to sit a test, $55 to get your permit, (not to mention $10 for the 'Driver's Handbook'), sat a test, and, hopefully passed.  You are now the proud owner of a Learner's Permit.

But you still can't drive much.  You can't go above 80km/h, you can't drive alone, you can't have any alcohol in your system, and you are now subject to restrictions on passengers and hours of driving.  All of which are fair enough.  But the system for graduating from a Learner's Permit to a full license has become overly difficult and expensive. 

Friday, 17 February 2012

So you closed your case, what now?

I finished a matter recently that has taken nearly two years to reach an agreement.  The last three days before trial were a frenzy of negotiations between me, the opposing solicitor, and two recalcitrant clients. We finally reached an agreement where neither party got what they wanted, but neither party was TOO much inconvenienced. 

So what happens now?  The barrister filed the Consent Orders with the Court, the clients went home, we sent out our bills... end of story?

Not quite.  Firstly, the letter of advice to the client.  You have to explain what the Orders mean for them personally, and show how they address all of their concerns.  You then have to make sure that they will be able to obey the Orders without coming back to us.

The next thing is to make it quite clear that our instructions have ceased.  Once the final letter of advice has been sent out, WE ARE NOT THEIR LAWYER any more.  If they want to seek advice from us again, that is fine, but they will have to pay privately.  They could apply for legal aid again, but they might not get it.  In the mean time, we are no longer their avenue of correspondence with the other side.

Finally, you have to deal with the file.  In Aus, you have to keep files for a LONG time after you have finished with them.  There is some legislation that says you must keep any documents for at least 5 years after they are no longer relevant.  This causes some problems when your ownership of something might be dependent  upon a sale... 200 years ago. 

We keep files for at least seven years, then have a bonfire and destroy everything that isn't a Deed, Will, or other perpetual document.  This means that for this file, we are storing a filing-cabinet-drawer full of paper... for seven years. 

What else have I forgotten? 

Client writes letter 'from' law firm

I had an interesting situation recently.  An ex-client wrote a letter of demand to her ex-partner, but wrote it from us.  She created a letterhead, and put our name at the bottom.

Needless to say, the police have become involved.  The letter makes serious allegations, and includes a little bit of blackmail.  Also needless to say, we will not be acting for her in the future.

Just a bit of a comfort:

Dishonesty offence:  10 years for a basic offence, 15, for aggravated. (max)
Blackmail:  15 years maximum.
The 'client' may be facing charges totalling up to 25 years in prison.  The lesson?  When a lawyer tells you he won't write a letter for you, maybe there is a good reason for it?

Wednesday, 15 February 2012

Gay Marriage, yes or no?

Gay Marriage:
Wow, what a can of worms.  From the 'Destroying the sanctity of Christian Marraige' argument to 'equal rights for all', this topic has caused more heat-under-collars than any other issue (except maybe abortion.)  So here is my take.

Pro-gay marriage arguments:
  • Everyone should have the same legal rights.
  • If two men get married, it doesn't affect my marriage in any way.  
  • Marriage is just an affirmation of commitment, and doesn't mean anything (asides from legally) anyway.  
  • Marriage has historically been a fluid concept. In Ancient Rome, you were married if you lived together as a couple. In early America, you couldn't be seen together unless you were formally married by a fire-and-brimstone church. In the pre-historic era, you were ugg uug arrrrrg arg. 
Counter-Pro-gay marriage arguments:
  • You can acheive the same legal rights through other tools, such as the vaunted 'civil unions.'  
  • If two men get married, it DOES affect my marriage, because I lose the status of 'man/woman' and I don't feel that 'marriage' means the same thing if it isn't man/woman therefore my marriage is lessened.  (Yeah, I was struggling on that one...)
  • Marriage is not just an affirmation of commitment, it is a special contract between a man and a woman and has serious effects upon your 'public' face.  
  • Marriage NOW means what I want it to mean.
Anti-gay marriage arguments:
  • Marriage is, was, and always has been a union between a man and a woman. 
  • Marriage is a Christian arrangement, and the Church doesn't approve of homosexuality.  
  • Marriage is an affirmation of the roles of man/woman in a family.
  • A family consists of a man and a woman and their children.
  • Civil Unions can take the place of 'marriage' without disturbing the social entity of 'marriage.'  
  • Homosexuality is wrong.
Counter-Anti-gay marriage arguments:
  • What is, was, and always has been isn't always right.  Move on, change, adapt.  Society's values have changed over time, and that isn't always a bad thing.  
  • The Church's views are based on literal (sometimes) interpretations of the bible.  This is a book written a thousand years ago, and is no longer relevant.  See above counter-argument.  Does being gay prevent you from being a Christian?
  • The roles of man/woman in the family have changed so that there is no longer the Man = provider, Woman = domestique distinction.  Marriage as an affirmation of the old socially acceptable order is simply holding women back.  
  • A family can consist of anything you want it to.  If a man dies, does the family die with him?  What about a single mother?  
  • Civil Unions are a divisive tool used to justify bigoted views of homosexuality.  Why not just ban marriage altogether and force everyone to have a civil union?  Or why not make civil unions the legal family unit, and make marriage an optional extra?  
  • People who think homosexuality is wrong are welcome to their opinions, but would they mind keeping it out of my face?
I think I have perhaps moved a bit beyond rational argument, but this is the position I have been forced to adopt:
I do not disapprove of gay marriage because it does not affect me in any way.
I UNDERSTAND that people have strong opinions about marriage, and I RECOGNISE that civil unions are a way of achieving equal legal rights.
I UNDERSTAND that people feel that marriage would be 'eroded' by gay marriage, even if I disagree.
I therefore do not feel that I am in a position to take a stand and try to convince other people to accept my views.  Therefore, I will support your right to have whichever view you feel strongly about, even if it isn't my own.

Phew, what a long-winded way of saying 'I don't know.'

All the hot-topics!

Skeptic Lawyer is a fascinating blog based in Australia, and is always worth a read.  Their article HERE loosely labeled 'Advice Please' really got me thinking about journalistic standards relating to 'hot topics.'

I have already posted about Respectable Journalism here, but Skeptics convinced me to lay out all the cans of worms for your consideration.  I consider myself a liberal (IE progressive, not Liberal/Coalition) and that will always colour my views.  However, what Skeptic lawyers said really struck home.

In a very abbreviated form, this is a version of an argument once made by German philosopher J├╝rgen Habermas: if one can’t make a case reasonably, accepting the possibility of defeat, then while one should be permitted free speech, there is no requirement that anyone else has to pay attention. In other words, make your case reasonably and be heard (if not always heeded), or make your case unreasonably and be laughed at (as well as definitively not heeded).

 So here are my cases.  Feel free to skip ahead to your chosen poison and start flaming.  I stand by these views as my own, but I am always willing to listen to 'rational' arguments.  I should also note that these viewpoints aren't the same as when I started university; I have been convinced to modify some of my more... unique views.

The following series of posts (links below) will hopefully delineate my views, and I invite you to agree or disagree.  Any arguments you think I haven't included or considered, please feel free to 'rationally' argue your point.  If it is a good, rational point, I will include it, even if I don't agree with it.  


GAY MARRIAGE:  "I don't know"
ABORTION:  "A Woman's choice"
ISRAEL/PALESTINE:  "What the hell is going on?"

Any other suggestions for hot-topics? 

Monday, 13 February 2012

Stephen Colbert

For your reading pleasure, an article about Stephen Colbert's attack on the Supreme Court.

(Link HERE)

Thursday, 9 February 2012

Graduate legal jobs picking up?

Good news for all you first-year solicitors;  law jobs are picking up!

"Top-end firms continue to rely heavily on summer associate programs, but mid-level firms are reassessing their processes for training lawyers," she said. "There's a differentiation in the market."

Summer associate jobs -- long sought-after for serving as feeders to well-paid jobs after graduation -- became tougher to get in the wake of the recession, even for students at the most elite law schools, as firms slashed their summer programs.

Although that data is for the US, you can expect a similar movement in Australia.

What struck me most about that article was the quote about about mid-level firms.  I have mentioned in a previous post that many law firms believe that they can teach you all you need to know on the job, and that all they are looking for is your personality.  This, of course, doesn't work for the smaller firms, because they can't afford to spend too much time training you, but for larger firms, their summer clerkships are all about investing in on-the-job training.

I will be interested to see how mid-level firms change their processes for training lawyers.

Tuesday, 7 February 2012

Getting your first legal job

Congratulations, you have just graduated from law school.  You did alright, couple of distinctions, couple of credits, a pass or two.  You messed around a bit, but really loved it.  Now you are ready for the big bad world and roaring to get your teeth stuck in to a major murder case, or the largest commercial transaction in history.

Only no one will hire you.

Why not?  You are no dumber than most of the plebs the law school pumps out! You have a good work ethic, and, let's face it, your personal skills are to DIE for!  Why will no one hire you?

Think about this from the perspective of the existing law firms.  Assuming they have a vacancy, their first priority is always, unshakeably, making money.  So, for them to hire you, you have to convince them that you are going to make them money.  But what they see when you interview is a graduate from law school who will need EVERYTHING taught to him/her.

I have heard it said that employers don't care what you know.  They believe that everything you NEED to know, you will learn on the job.  So they are looking for someone who will learn quickly, and move straight on to making money.  But who would you hire?  The graduate who scrubs up nicely, chats up the secretary, and can quote the Honourable Justice Michael Kirby verbatim, or the slightly dowdy solicitor with 12 years experience who will start making the firm money from day one?

The ONLY advantage you have over the experienced solicitor is that you are cheaper.  There is no solicitor's award in South Australia (there is a legal support staff award, but that doesn't cover solicitors) so they can pay you as little as they like.  You need to accept that your first job probably won't be earning 50k, and work out how you can show the firm that you WILL make them money.

Any experience you can quote is great.  Let's say you worked in your dad's law firm as a casual law clerk.  You are IN!  Congratulations, you just got your first job; your foot is in the door.  Seriously, any familiarity with an actual legal practice will put you light-years ahead of the competition.  Even mentioning that your father is a solicitor will help you.  (Be a bit careful not to 'name-drop' too obviously.)

But what if you don't have any connections to legal firms?  What if your mother was an accountant and your father teaches 6-year-olds?

Do not despair!  You are only one of the 90% of graduates who are in that position.  So, you just lost the first 10% of jobs, and you probably won't be working for the big 10 right now.

Ralph Bonig, the president of the Law Society of South Australia talked about this problem last year.  He discussed the way students' expectations are to go straight from uni to a summer clerkship in one of the big 10, and then get a job immediately.  Many students feel that if they don't get into these coveted positions (often as few as 6/semester per firm... out of nearly 1000 graduates???) their career is already over.  And let's face it, everyone knows that nerd from your Evidence class who is already guaranteed employment at either Minters or TGB!  (Bastard...)

The fact is that these big firms choose the best students, and unless you are truly exceptional, you are not one of these.  Don't take that as an insult, you are mediocre among the top tier.  That's like being in the bottom half of the top 10%.

So look elsewhere for your first job.  Remember that your GDLP means you have to do a six-week placement with a law firm, barrister or other legal office.  Take that opportunity to impress the partners, and hope like hell they can offer you a position when you finish.

Ask around smaller law firms with less than 10 solicitors.  Anything over two or three means you will get a good, rounded experience, and unless you are passionate about one area of law only, go for a general practice.  Don't discount country law firms.  Even if you have to travel, they will often have good advice for accomodation.  I was lucky enough that my Principle had a spare room, which I hired for a (very) low cost.

Remember that your GDLP Placement is like a 6-week job interview.  Work your ARSE off, and learn as much as you possibly can.  Attend EVERY webinar that even remotely interests you, and make sure that the partners know you just listened to 1.5 hours of discussion about Probate.

While I was doing my placement, I did plenty of work that either made money, or saved the partners time (and therefore made money.)  Although the firm I was with didn't have an opening when I started my GDLP, by the time I finished, they decided to open up another position for me as a law graduate.  I have since moved to another office with the same firm, and they helped me find rental accomodation with an acquaintance. 

You still probably won't get a job, but at least you tried, right?

Friday, 3 February 2012

Criminal Deterrence

I recently read this article on the blog Grits for Breakfast about two approaches to combating graffiti.

The issue of preventing and controlling graffiti has always been a difficult one because of the near-impossbility of adequately enforcing whatever law is in place.  What I want to talk about today is the topic of deterrence.

There are many justifications for sentencing criminals, but the most prevalent are the following:
  1. The need for punishment of wrongs;
  2. The need to remove offenders from society for society's protection (usually used to justify imprisonment or detention);
  3. The prevention of further crimes by that person (specific deterrence); and
  4. The prevention of further crimes by other people (general deterrence).
General and Specific Deterrence:
I want to talk about the last two specifically.  The concept of specific deterrence is that by punishing a person for committing a wrong, they will be deterred from committing that wrong again by the punishment they have already received.  IE once they get out of prison, or finish paying the fine, they won't want to go back and so won't commit the offences.

This has some benefit, and I am sure that in some cases it will work.  The problem is that it is now rigidly applied as if it will ALWAYS work.  The legislation in South Australia effectively allows for a severe ramping up of penalties.  This actually seems to be a self-defeating argument.  IE, if it didn't work once, maybe it will work the second time! Also, you develop the problem of jail-birds; people for whom imprisonment is not a punishment but a different residence with food guaranteed every day.  I have read cases of child-sex offenders who are deliberately seen near schools so that they will be returned to prison, where they feel safe.  Obviously in this case, there are many different issues to address, but the point remains that specific detterence needs to be flexible. 

The biggest problem with specific deterrence is that if it doesn't work the first time, it WON'T work the second time.  Yet we still see jurisprudential writers touting it as the supreme justification for imprisonment.

The concept of General Deterrence is one of my greatest bug-bears, and one of parliament's favorite tools.  The government can point to increased penalties for drink driving, family abuse, etc, and say "We are tough on crime!"  Yet year after year we see money cut from enforcement budgets, and a slow build-up of offences, clogging the court system.

The theory of General Deterrence says that we don't commit crimes because we consider that X commited a crime and his punishment was extreme, therefore I don't want to go to jail, so I won't commit the crime.

An interesting concept is to decide why YOU personally don't commit crimes.  Consider the crime of assault.  Do you not assault your work-mates because you don't want to go to jail, or for another reason?  Do you not commit the assault because it is wrong, because you might get hurt, because you might lose your job, because if you did, he might, or even just because it is against the law?  I don't speed when I drive, not because I don't want to be caught (although that is true) but because it is against the law.  I feel offended when I see people driving at 65 in a 60 zone, not because they will get there sooner, but becuase they are breaking the law.

The biggest justification for increasing penalties is 'protecting the community.'  Yet when people commit crimes, they either don't think of the penalties, or think they can avoid them entirely.  Compare a violent crime in the heat of passion, with a considered crime like fraud.  People do NOT think "oh, I might go to jail" when they are in a fight, or in a blinding rage at their partner.  So in cases of passion, general deterrence simply does not work.  Doesn't that account for most violent crimes?  (Mob or organised crime aside).

Compare that to a person drawing fraudulent cheques.  They don't think "I shouldn't do this because the penalty has just doubled."  If they think about it at all, it will be "I don't want to be caught."

So we need to consider other tools to prevent crime.  In Grit's article, he talks about engaging a graffiti artist professionaly, and protecting the area from further graffiti by putting something spectacular there.  There are other ideas such as 'graffiti walls' in Prospect, where youths (and adults) are encouraged to practise their art.  Obviously this doesn't solve the problem, but it is a far more productive method of combating the issue.

I would love to see some other ideas for preventing violent crime.  Anyone for Minority Report?

Respectable Journalism

Channel Nine's 'A Current Affair' showed this story last night (Thursday 2 February 2012), titled "Bank fee farce." The premise is summarised below (taken from their website, link above.)
"Last year we paid the big four banks a visit — to open everyday transaction accounts with a $500 balance, and see exactly how much we were charged in fees over five months. We reveal the banks who slug you the most and the ones who will help you save."
The reporter, a dishing young blonde, walked into the 'big four' banks (ANZ, NAB, Commonwealth Bank and Westpac) while rattling off a (very rehearsed) line about their latest advertising campaign, and deposited $500 into a 'standard transaction account.'  They then left the money in the accounts for five months, without touching the money.  Interestingly, the accounts they chose all had 'unlimited access to money,' 'unlimited transactions,' and access to internet banking.

The results were extremely predictable.  One bank (NAB) who has been promising no account keeping fees ever, returned a total of $500.01.  The other three banks took approximately $5.00 per month in account keeping fees.  The other three banks took $20-25 dollars "JUST TO HOLD ON TO MY MONEY!"  What a scam!  Right?

Let's take a look at what actually happened.  The reporter went into a bank and asked for a standard account.  She agreed to their terms and conditions, and in return was given access to unlimited transactions.  Two banks offered to waive the $5 monthly fee if more than $2000 was deposited every month.  She then went and left the money alone for five months, just to make a point.  She did not use the account at all, and did not get any benefit out of it.

Let's look at another example.  Let's say I open a standard account with one of the three banks charging $5/month.  I direct that my pay goes into the account, and I use my card every day to buy bread, groceries, and pay my rent.  I access my bank account online nearly every day, and in fact I transfer money between my accounts all the time.  I even pay bills online.  For this service, I am paying $5.00/month.  But damn, I am getting my money's worth.  I get the security of having my money protected in a bank, rather than sitting under my mattress.

Let's face it, I don't earn a lot, but I put more than $2000 into my account every month, just from wages.  It doesn't stay there for long, but that isn't what is required.  If I was with one of the banks offering a fee reduction based on transactions, I would actually be paying LESS for using it MORE.

I could turn this post into a long-winded ramble (more than it already is) about choosing where to put your money, using savings accounts for savings, and standard accounts for spending, etc, but I want to focus instead on what is 'journalism' today.  I admit that criticising A Current Affair (or Today Tonight, or any other 'current affairs' program on a commercial station) is like falling out of a tree - really easy to do, and always lots of fun.  But I have to wonder about the people who write these stories.

Do they actually believe that people are going to get all het up under the collar because a ditzy blonde wasted $25 to prove a point?  Most people would be like me, saying 'Well that was stupid of her, wasn't it!'

I have a sad habit of listening to news radio, rather than commercial pop stations.  I am used to hearing things about turmoil in the world from a (fairly) balanced perspective.  So when I see articles like this, the holes and mis-statements just seem blindingly obvious.

Picture tomorrow's headlines.  "Reporter throws away $25.00 by being a ditz - more, after the break."  Surely that would be a ratings buster!

Thursday, 2 February 2012

Schamozzled defendants.

This is an excerpt taken from a publication in 2011 by William (Bill) Othams.  It is reprinted with permission.  

Possibly my most extraordinary success was to win a Magistrate’s verdict in favour of my client on an assault charge, when my client turned up drunk and spent the entire trial sleeping on the bench behind me (of which I was unaware until the faces the Magistrate was making obliged me to look behind me; as there was no guarantee that my client would not turn up equally drunk on any other day, I just shrugged my shoulders in response to the Magistrate’s facial contortions, and carried on). 

My client was alleged to have assaulted his girlfriend’s elderly mother, and he admitted hitting her but said that he was acting in self-defence after she had attacked him with a vacuum cleaner. 

My client’s comatose state allowed me to conduct my cross-examination of the alleged victim uninhibited by any concern about what my client might think about the line I took.  I accordingly put it to the witness that my client was an absolute prick, a parasite who bludged off her daughter and a total no-hoper in respect of whom it was only reasonable that she should be moved to beat him about the head with a vacuum cleaner.  We rapidly achieved consensus on the issue of my client’s many and manifest failings, and the witness then smilingly agreed that she had indeed attacked my client with a vacuum cleaner.   The Magistrate had to dismiss the charge against my client without him being obliged to give evidence. I woke him up, informed him of the outcome and he lurched off in the direction of the hotel whence he had appeared that morning.  However, he did come up to me the next day, to ask what penalty he had received.
I would LOVE to read the text of that cross examination!

The three 'D's' of Criminal Law

I found this post at The Defence Perspective.

Ok, this one isn't original. But it's still a good one and worthy of my list. The 3 Ds of criminal defense work; Deny, Delay, & Defend.

The first thing the police want is a confession.  Let's face it . . . a good confession makes their job so much easier. My advice to folks . . . the targets of criminal investigations . . . is to keep your mouths shut. Speak to no one on the planet, except your criminal lawyer.  And for goodness sake, if you're going to say anything, at least DENY it. Since once you admit, you are probably toast.

I love DELAY. It gives me time to work. It mucks-up the system and judges loath it. It helps my case get old, mildewed, and smelly.  We don't want speedy trials.  Speedy trials are bad for the accused. Provided my client is keeping out of trouble, DELAY can do wonderful things to a criminal case. Witnesses forget, get in trouble themselves, move off. Prosecutors get sick of my case . . . and me. I love it. It works. As long as they haven't convicted my client, we've got hope. DELAY whenever you can.

Finally, DEFEND. Defend only when you must. Frankly, defending a criminal case often doesn't work out well for the accused. It's a fact of life. Juries are unpredicable, they sometimes want blood. Judges are mean. Prosecutors, well, prosecutors need to get a life. In any case, DEFEND if you must, but only as a last resort. It's tough out there, you know.
I don't agree with all of that, but still...

We had a client charged with drive without due care.  The only evidence the police had (asides from a crashed car on a foggy day) was a comment he made in an interview along the lines of 'I guess sometimes I drive too fast.'  Not 'I drove too fast on this occasion and that caused the crash,' just 'sometimes.'  Even if he is found not-guilty, it will cost him heaps to defend it.

So seriously, if you commit crimes, DON'T say more than you are obliged to.

On that note, you MUST (in Australia at least) give police your name and contact information.  Asides from that, you do not HAVE to say much more.  Police will tell you what you HAVE to say, and if they lie ("You must tell us who you spoke to on that night") it is likely that a good defence lawyer can have that statement struck out.

When do you, or don't you act for a client?

I received a grand of funding from the Legal Services Commission to provide an 'advise and report' last week.  What this means is that we interview the client, and provide the LSC with an outline of the facts and an opinion of the best way to progress the matter.  We discuss with the client what their next step will be, and if the LSC provides funding, we take them on as a client and deal with their matter.

Unfortunately, this particular client didn't want to engage in the normal sorts of mediation that are required to deal with a Family Law matter.  What she WANTED was for the father to have as little to do with the children as possible.  To facilitate that, she didn't want to father to be pushed into getting legal advice, because then he would 'just want everything.'  (By this I interpreted that once he knew what he was entitled to, he would try to get it.)  She asked us to write him a letter from us saying that the children would stay with her only.

The only problem is that we don't act for her.  Yet.  The funding we received was not to write letters for her, but to advise and report to the LSC.

I took the liberty of preparing a letter for HER to send to the other party FROM HER.  I put HER name on the bottom, and made it clear in my instructions that this was a POSSIBLE letter that would convey her terms.  I explained in great detail that we did NOT act for her.  Since then, I have received numerous phone calls (the letter is currently in the mail) asking me to email the letter to her.

I have lots of reservations about this. For one thing, because we don't act for her, we will not send letters to the other side for her. If I email it to her, she can forward the email straight on to the other side and say 'This is a letter from my lawyers.'

The problem with this whole matter is that I did not manage the client's expectations well enough.  I didn't make it clear enough when I was giving her advice about the course of the matter than until she retained us, we couldn't do anything for her.  Since she didn't want to participate in mediation, it was unlikely that the LSC will fund her, and she can't afford to pay privately.  Thus, she can't get her 'letter of demand' unless she agrees to mediate.  But she is CONVINCED (even after being refused several times) that I should prepare a letter.

I think I have learned a lesson from this.  Just don't talk to clients.  That way you can't get anything wrong.


[Edit]
This client later caused all sorts of problems. She retyped our letter, put our firm's letterhead on it, put my name at the bottom of it, changed all sorts of things, and sent it to the father. We got a confused call from him a week or two later, asking about this letter!

Honestly, that amounts to dishonest dealing with documents!