Tuesday, 24 April 2012

Plankers gonna plank?

http://www.loweringthebar.net/2011/12/planking-prosecution.html

The 5 Clients from Hell

I saw this by 'bitter staff' on Bitter Lawyer and couldn't HELP but re-post! I highly recommend you go there and read it all. For the moment, though, here is my favourite!

3. Basketcase
In a typical half-hour discussion with Basketcase, the notion of fairness surfaces about three dozen times. As in, “but I don’t see how that’s fair.” Each time after mentioning “fair,” however, the client collapses into heaving sobs and says she (or, on occasion, “he”) is not sure she “can go on like this.” You explain it all again as best as you can, particularly how things ended up in your office, but after the sixth time you figure the client isn’t going to absorb the fact that, by not paying rent, you probably are going to be evicted. Besides having a fresh box of Kleenex in your office—two boxes just in case—make sure you instruct the client not to show up at the office without an appointment. Otherwise, Basketcase will be in the law firm’s lobby thirty minutes before you start most workdays.

I have... well, hell, most of my clients are like this. I had one who had to do a significant amount of driving under a set of Orders, but had near total custody of the children. Her comment?  "It's not fair, how can he do this to me?"

Buh!


More musings about the Magistrates Court

I wrote recently HERE about an prosecutorial bungle that wasted nearly 12 months of the Court's time, and plenty of mine. It also raises a few issues that new solicitors should think about.

Costs:
The first issue is Costs. If you look at the Rules closely, you can see that a Magistrate has the ability to Order costs in favor of the successful party at the end of the matter, but that applications for costs for a Pre-Trial conference should be made AT that pre-trial conference. So, if you are appearing and no progress has been made on the file, perhaps think about asking for costs.

The solicitor who appeared in the matter directly before mine had a very aggressive approach to seeking costs which clearly put the magistrate offside. She strongly criticised the prosecutor individually, although the circumstances of the matter were such that the Magistrate really had no option but to Order costs. You could tell, however, that he didn't want to do so, simply because of the manner of her presentation.

A better outline is to refrain from cricitising the prosecutor directly; the Magistrate will see what you mean.
Outline your case simply and clearly.
  • What happened on the last occasion, and what was Ordered to happen.
  • What has happened since.
  • Why hasn't happened since.
  • Why it hasn't happened.
Finally, highlight the waste of COURT's time, not your own, before you ask for costs. "Your Honour, since nothing has happened since the last occasion, this Pre-Trial conference is essentially a waste of the Court's time. I would make an application for costs thrown away." or something similar.

Objections:
Another issue raised by last week's appearance is the niceties involved in Court-work. When do you object? When CAN you object? 

Last week I objected to the prosecutor reading out the apprehension report and making submissions. Clearly, in that case, it was a failure on behalf of the prosecutor, however there are other grounds too.

In another matter for another client, he was charged with obstruction of a public transport system, which carries a maximum penalty of $16,000. The matter was so minor as to be nearly trivial; he was sitting on the platform with his legs over the line. 

The only material that was provided was an affidavit of a public transport officer, who boarded the train at the request of the train driver some 2 stations later, and spoke to my client and his girlfriend. His affidavit set out the facts of the matter, and even said that it was a silly and stupid thing to do. (I could not disagree that my client was both silly AND stupid!). 

The prosecutor started reading out his submissions, and made some claims that were completely unsupported by the statement of the public transport officer. He made comments to the effect that my client saw the train coming, but waited until the last second to move away, causing significant distress. Upon the affidavit of the PTO and my client, that was absolutely not the case. I COULD have objected to that, but instead waited until it was time to make submissions in mitigation before I responded.

When I did so, pointing out that that allegation was a) not supported by the affidavit and b) not part of the allegations, I was stuck because the allegation was already before the court. The prosecutor couldn't withdraw it, because they had no clear instructions to do so. The prosecutor was in fact just reading from a sheet prepared by someone else! That was eventually resolved with a do not admit, do not oppose argument.

A senior solicitor once told me a story about an unusual objection. I can't remember the details, but in essence it was as follows.

The client had been charged with a regulatory offence under the Air Traffic Act or some such. It appeared on the surface a clear breach of the act, but the solicitor who was appearing walked into the trial absolutely gung-ho, and ready to go. From the very first minute, it was clear that he wasn't going to let this be easy.

The prosecutor got up, and said "Your Honour, I appear on behalf of the Crown," and the solicitor immediately said "I object!" 

It turned out that the solicitor had an argument to the effect that the prosecutor was not authorised under the act to appear to prosecute this type of offence, and indeed the Magistrate had to send that question upstairs before it was resolved. The moral of the story is that it is NEVER a bad time to object!

Musings, mutterings, and meanderings.

I had a 'first' last week. My first guilty plea as a solicitor. I have appeared on guilty pleas as a GDLP student, but that was always with my supervisor sitting in the Court looking over my shoulder.

This one was an interesting matter. It was in the Youth Court, so I can't publish any specific details, but here is the history (give or take or change a few details.)

The offences occurred in April last year, and occasioned an assault, disturbing the public peace, and breach of obligation. Once we explained to the client that 'assault' didn't necessarily mean that he hit the victim, but could also be assault by causing fear, he indicated that he would plead guilty. The only catch was that the report was quite specific when it described the things he said, and our client (Call him Jake) denied saying some of those things.

This isn't a difficult matter in most cases. We wrote to prosecution and intimated a guilty plea, but indicated that we disputed the facts.

Prosecution replied that they couldn't accept that fact scenario, as it contradicted their witness statement. They said that they would have to re-interview their witness.

This was in July 2011.

Over the course of the next 6 months, nothing happened. I appeared (by telephone) numerous times to say that nothing had happened, and that we maintained our fact-basis. In about February 2012, Prosecution said that they could re-interview their witness, but would like something in writing from us.

I then wrote a lovely letter to prosecution saying (in essence) the following.

"I note your request for a request in writing. I refer to the following documents.

  • Paragraph 5 of our letter to you dated xyz November 2011.
  • Paragraph 6 of our letter to you dated abc December 2011.
  • Paragraph 2 of our fax dated qrs January 2012.
  • Our fax to you of tuv February 2012
Copies of which are enclosed. I also refer to our telephone conversations on x, y, z, (from my file notes) and repeat the request therein, as follows.

We request that you re-interview your witness in this matter and put to her the fact-position referred to above."

Needless to say, nothing happened until the day before the next court date, when I rang prosecution and asked about their witness. "Oh," they said, "Oh, we reinterviewed her ages ago, and we agree with your position."

Seriously???

So, FINALLY, I get to Court (5 hours drive from my office... don't ask.) and sit in the Youth Court for a few hours while the Magistrate deals with the back-log of matters from the morning list. About 2 hours behind schedule, he finally gets to Jake's matter.

Jake pleads guilty to the charges, and the prosecutor gets up to make submissions. 
"On x date, Jake assaulted the victim by saying x, y, z..." He was reading from the ORIGINAL report, and had not looked at the updated notes. 

I objected. The magistrate looked at me and told me to sit down and listen to the prosecutor. I declined to do so, and repeated my objection. "Your Honour, this guilty plea was entered on an 'agreed facts' basis. These are NOT those agreed facts." 

His Honour proceeded to grill me for about 20 minutes about the basis for the agreed-facts scenario, at which point I pulled out my letters and faxes dating all the way back to July 2011 and laid them out before him. Then I pulled out my file note about the prosecutor agreeing to the fact scenario. The magistrate looked at me, and said "Oh." He then looked at the prosecutor, and said "Mr Prosecutor?" 

The prosecutor from another court room had come in by this point, and proceeded to whisper rapidly in his ear, pointing at various notes and highlights on the prosecutor's file. He then stood up and apologised, admitted that he hadn't read the file before today, and didn't know anything about the matter at all.

His Honour was less than impressed. The outcome was unbelievably favourable to my client; perhaps in part because of the prosecutor's bungles. My client (who had been slouching in his chair for the last hour) came out beaming. All in all, I call that a win!

Also, I will never be nervous about appearing before a Magistrate again. It just goes to show that if you know your case, and can argue it persuasively, you will never look bad in front of the Court. 

Also, I will never ever stop listening when the Prosecutor begins to speak.