Okay, so the next factor I’m going to look at, how well does the lawyer that you’re speaking to or the law firm that you will eventually retain, how well do they negotiate? Now the police are there to charge you. The prosecuting agencies are there to prosecute you, and the courts are there to try you. Now, of course, there are no negotiations going on with the courts. They’re completely and utterly independent at all times. But in the course of going through from an arrest through to having the matter heard and finally determined in court, there’s often a lot of negotiations behind the scenes. If you look at the criminal lawyers website, you’ll see a lot of recent cases where we’ve managed to negotiate things away. That means that the charges are being discontinued. It’s a win-win all around. Certainly from the defence side.
You need to ask the question, do you routinely spend time in communications with the police or the prosecuting agency? That’s very important because a lot of things can get ironed out before things even get to court. And if they have got to court, a lot of things can get ironed out and sorted out before it gets really serious heading towards plea mitigation or a trial. So the question is, what steps do you take and do you take them frequently to have a relationship or rapport with the police agency or the investigating agency and the prosecuting agency? That’s very important.
In relation to your specific matter. It may be an assault, it may be a sexual allegation of indecent dealing, or an allegation of a sexual assault against a child, for example, which are very complex areas of law. You want to ask the question, well, how many of these cases have you tried? That is, taken to trial? How many of these cases, in general, have you dealt with? What sort of advice? What has been the nature of those cases? Now, of course, no lawyer will breach a professional legal privilege and tell you about the case in detail, but they can give you some idea after the case is completed, not while the case is on foot, but after the case is completed, as to what transpired, what the lawyer did in those circumstances, and what the outcome was.
And it’s important that the lawyer is very fair in saying or in providing the advice that you win trials, you lose trials. It doesn’t matter which side of the law you’re on, the law is always right. It doesn’t matter whether you’re a defence or a prosecutor. The law makes the decision or the court makes the decision at the end of the day and you live by it.
So we’ve won trials and we’ve lost trials. It’s the way it goes and there are so many factors to consider in that process. So when you’re asking somebody, a practitioner, about what experience they’ve had in your particular case, as I said it may be an assault, it may be a dangerous driving causing death, it may be a wounding, for example. You need to get a sense of satisfaction of the competency of the legal practitioner in that specific area. Now, from my experiences and my colleagues at the criminal law bar, they’re competent across a range of legal problems. Particularly the older you get, the snow on the roof seems to indicate how long that practitioner has been involved in the criminal legal jurisdiction and the number of matters that that lawyer has been faced with.
I remember in one year as a duty lawyer, back in a hundred years ago, they count the number of times you’re in court, and I think I was 2020 appearances in court in one year. So you get to see a lot in that time. Having said that, I’m not saying that you have to do that many appearances in court to have the experience that senior practitioners have, but you need to have the experience of senior practitioners if you’re going to deal with some of the serious stuff that individuals are faced with. And quite frankly, I say to clients when they phone me up, they might give me a particular area of concern or they’ve been charged in a certain way, and I’ll say to them, “Look, I may have assisted a person two or three, four years ago, but I haven’t looked at it recently. I need to have a look at it recently before I see you and get back to you.”
And that’s being honest. That’s saying, “Well look, I need to refresh myself. I might even have to phone a friend.” Having said that, if it’s an area that is completely out of my jurisdiction or knowledge set, I’ll say so, because the last thing a lawyer wants to do is end up in the district court with a very, very experienced judge trying to battle with words to get a point across. So in asking the lawyer, do you have specific competencies in dealing with these specific events? It obviously becomes more important the more serious the offence. So for example, if it’s manslaughter or it’s a murder or dangerous driving causing death, particularly the latter, dangerous driving causing death can be very technical, or it is, a very technical area to defend.
You’ve got major crash involved and you’ve got specialist areas and it’s a worthwhile question to ask the law firm whether they have access to the specialists such as crash investigators, forensic specialists, and so on. There’s a whole range of professional groups that come together when police are investigating a dangerous driving causing death or grievous bodily harm, for example. Similarly, the defence firm needs to be equally equipped to be able to not only answer the questions and address the issues raised by the police experts or the state’s experts, but also to rebut some of that evidence.
So it’s important to get that sense from the law firm, whether they are equipped and capable of doing that. And obviously, what I’m saying now, it’s not going to be something you can get over the phone. I assume at this stage, you’ve got done your Google search and you found a law firm and you phoned them up and you thought, “This lawyer, he sounds or she sounds very competent. He makes me feel confident to go and take this further.” And so my comments really are through this whole process of retaining a lawyer. So are they equipped to deal with complex issues? But primarily, have they dealt with this particular matter before?