In about 2004 John Cheevers and I struck up an informal agreement. I had made a reputation as an impaired driving savant. For some time I had been helping out other lawyers to identify problems in impaired driving investigations. Dealing with an unusually difficult sex assault case, I asked John to return the favour and help me work my way though some of the more complex issues in the case. We discovered that we work well together and our clients have benefited ever since.
All of the work we do as defence lawyers starts with forensic analysis.
Certain types of cases, such as impaired driving and over .08 criminal charges, require particular insight into the developments in forensic science. Understandably, few lawyers want to make this a major portion of their life’s work. I find it fascinating, which is one of the reason I’m always looking for greater challenges in drunk driving cases.
All of the work we do as defence lawyers starts with forensic analysis. When it comes to cases that hinge on aspects of human interaction and the process in court, you can’t beat experience. This is one of the things that I learned from John about sexual assault cases. I also came to recognize that there was unquantifiable value in the experience of a criminal lawyer like John. Simply put, if you must put your life in the hands of a lawyer in something like a serious sex assault case, there is nothing like a lawyer with a lifetime of experience.
Decisions we made
The reason I’m telling you this is because of the discussion that has taken place in the last few months since the Jian Ghomeshi revelations came to light.
Regardless of the facts, it is in our very nature as criminal defence lawyers to approach the file as a problem which needs to be solved.
All of the criminal lawyers in our office have successfully defended clients charged with sex assault (sexual assault) and we’ve done a very good job protecting our clients’ interests. These are not common cases in the sense that at any given time we may have a handful of sex assault defence files before the courts. Each file has its peculiarities. Regardless of the facts, it is in our very nature as criminal defence lawyers to approach the file as a problem which needs to be solved. One useful skill that we develop is an ability to objectively assess the evidence. From there we develop a solution to solve the problem.
At this point, as a group of defence lawyers, we have successfully defended more sex assault files than we care to report. And there is a point to that. There are certain decisions we made that make sense to us regarding how we can best defend our clients. One of the decisions was not to take advantage of successes in sex assault cases for marketing purposes.
Marketing of legal services
Before the internet, criminal defence lawyers gained their reputation by doing good work for their clients. If they got to the point that their client referrals created a demand for their services, they could afford to market themselves in what was then the traditional manner — the phone book, small local newspapers or occasionally a billboard. From time to time a relatively unknown lawyer would come along with a wad of cash garnered in some fashion and finance a big spread in the yellow pages. Surprisingly, this was often effective to launch the careers of many lawyers. If they were inexperienced when they bought that ad, within a year or two they started to get some idea of how to be a successful criminal lawyer.
A full page ad or a two page spread in the yellow pages back in the late 90s could set you back $10,000 per month. Ultimately the clients paid for that in legal fees. For every dollar you spent hiring that lawyer, perhaps fifty cents went to pay for the advertising that brought you to that lawyer.
Personally I found this formula inconsistent with my obligations to my client. I didn’t believe that clients should be dinged just because we made the decision to pay to be the first criminal lawyer in Vancouver listed in the yellow pages. My obligation includes to try to protect my client’s pocket book. When I felt that the advertising overhead was wrong, I quit and established my own law office.
Aside from mutual respect for each other’s legal work, John and I share a similar ideology with respect to legal fees. We both think our fees should reflect our work. As well, we both felt that fees should be fixed on the basis of the work to be done – not what we need in order to pay for advertising.
Case summaries, beta version:
About 14 years ago I sat down to write the text for one of the first lawyer’s websites on the internet. I explained a lot about the evidentiary breathalyzer used at the time, the BAC Datamaster C. Later on I discussed things like error messages on the instrument to distinguish our law office from others that were starting to have a presence on the web. My old firm still has a great deal of my original text on their website and when I quit they recycled my biography for the lawyer who replaced me! Such is life. Or at least, such is my professional life now with another person’s name.
When it came to case summaries we had some difficult decisions to make. You see, at the time I wrote the text for that original site, there were no other Vancouver criminal lawyers with websites. I decided to write case summaries because I thought it was fair for clients to know that our ultimate goal was to get them in a much better position than they were in when they phoned us. I also wanted them to know that a really good result was within the realm of probability. So I started writing case summaries (which are probably still on that site) but then I ran into a problem. What do you do about sex assault cases?
The internet killed the yellow pages… and for lawyers?
The old system of finding a criminal lawyer on the basis of their reputation or their phone book ad was killed by the internet.
Most people I know recycle the Yellow Pages within minutes of it being delivered to their door. The company that owns the rights to it now phones me from time to time to ask me to advertise on their website. No dice.
The old system of finding a criminal lawyer on the basis of their reputation or their phone book ad was killed by the internet. Now any young lawyer can create a website and claim that they are the king of the lawyers. They might claim that some very normal training or work experience is somehow extraordinary. They can focus their website around some inbound internet link they get from one of their friends. They can use the family fortune to pay for ads you might click on.
The sad thing about this is that lawyers from the era where experience mattered are overlooked for someone who can pay to advertise on the internet. I was at a diner recently recognizing the work of Peter Ritchie upon his retirement. He spoke about how so and so is the best criminal lawyer in Vancouver, at least according to his website. We all laughed. Still, it exposed for the room a problem all of the criminal lawyers in Vancouver are aware of: many experienced super lawyers are shunted aside because some young lawyer pays for internet ads to claim that they’re somehow the best.
Party to the offence of being “the best”
Pronouncements of lawyers on their websites and in internet ads about how wonderful they are is a major issue.
We’re smart and wily. We know that it’s great to say on the internet that we’re the best at something. We have a big focus on impaired driving mainly because we like the challenge of these cases. We find the confluence of science and law intellectually stimulating. For us, in the end, we can demonstrate that we’re the best at a certain thing: Immediate Roadside Prohibition defence. How can we say this? We request the decisions each month and we count them. When it comes to a lawyer for an impaired driving case, we’re a safe bet. But otherwise, if you don’t have successful decisions you can count each month, how can you maintain such a vain boast?
This is an issue of significant discussion among lawyers. Pronouncements of lawyers on their websites and in internet ads about how wonderful they are is a major issue. It became a bigger issue when the Ghomeshi revelations hit the news.
Good taste and crossing the line
John and I had an argument. This is back in about 2005 and I was writing case result summaries for the firm I was with. My office was on the 2nd floor of the Sun Tower and John was on the 10th. Occasionally John and I would have lunch in the cafeteria.
I wanted to explain in my case summary about how I succeeded at trial by ripping apart a complainant in an assault case. She ran out of the courtroom crying. I wasn’t sympathetic – I caught her in a bunch of lies, she made up evidence that she thought would help the crown prosecutor’s case. When I was done with her there wasn’t a stitch of credibility remaining in her evidence. We won. It was particularly rewarding under the circumstances. I wanted to brag.
John read my case summary and told me that it was in bad taste. He took out his pen and crossed off all of my choice words. He told me that my duty to my client did not end when he was acquitted. He told me that it was a disservice to justice, the complainant and my client to exploit my success in that case in such a way for the purpose of advertising.
The wisdom of a lawyer
Shortly afterwards I set up Acumen Law and John started practicing law with me. I understand the value of experience. John understands the value of staying ahead of advancements in the law and science. The end result is that our clients have benefited and the lawyers we trained, including Kyla, Roy and others come at this profession with the wisdom of a lawyer who can draw from both perspectives. We use the modern and wily methods to get the best results. Still, we maintain the tradition of service and dedication to our clients as lawyers have done for hundreds of years. It’s a good mix.
Cross examining witnesses and complainants
As criminal lawyers we’ve had many successes. The court cases that are the most rewarding are the ones where you can show through your cross examination that the police have lied or generally conducted themselves in a manner inconsistent with their duties. They are professional witnesses in a sense. They all receive training in testifying and most have a lot of experience in court. Often they are the witnesses to the alleged crime and the holders of the evidence. They are tough witnesses. Usually they are the toughest witness in any trial. In impaired driving cases and drug cases, the police are often the only witnesses.
Contrast that with a sex assault case. Usually the witness is terrified of testifying. It may be the only time that they enter a courtroom in their entire life. They can’t receive training into testifying or it would undermine their evidence. As you would expect, a victim in a sexual assault case may be no match for an experienced criminal lawyer. As you might also expect, the courts are aware of this and careful to keep lawyers in check in these types of cases.
Still, the evidence needs to be tested. It’s fairly common in these cases that the complainant lacks credibility in their recitation of the alleged facts. Some people have a motive to lie. Some want to exaggerate in the hopes that authorities will take them seriously. Some people want to use the court for revenge for some perceived or real wrong done to them. Some people want attention or wish to redirect unpleasant attention away from them. Some people are confused. Some people are liars.
Regardless, our job as lawyers is to challenge the evidence in the best interest of our clients. In many sex assault cases the impact is that the complainant comes away hating the process. Some people who are morally responsible for a wrong or crime may be acquitted. Even if they win, innocent or guilty, the accused always seems to come away hating the process. One thing we can say is that the process of a criminal trial in Canada is an effective way of ensuring that the wrongly accused are not wrongly convicted.
Advertising that hurts
Knowing the pain of the process for both the complainants and our clients, we made the decision to omit any gratuitous descriptions in any case results that we report on our website and generally not to report the outcome of these cases.
How would you feel as a client if we provided an extensive description of the worst aspects of the allegation on our website, and then bragged about the results? How would you feel if you were the complainant? In circumstances where we undermined the evidence of the complainant so significantly that it could not be relied on, would you like to see a description of the evidence summarized in such a manner as to suggests that a fair process was in fact made unfair by the lawyer?
Of course not. This isn’t what our justice system is all about.
The Criminal Lawyer Website study:
Justice comes in court. A lawyer’s website should not cause one to think the content is some form of retribution.
We were upset when we read about the Criminal Lawyer Website study in the Globe and Mail. We’re doing our own thing so we don’t pay too much attention to what other lawyers have on their websites. We were surprised to see how cases have been described, and in particular sex assault cases. It seems to smell of desperation, which is understandable, but it crosses a grey line which may have the effect of bringing the justice system into disrepute.
Wherever the line may be, victimizing complainants after the fact via a lawyer’s website is never acceptable. In our view it is a disservice to our client, to justice and the court process. Moreover, it’s unfair to the complainant in the case. Justice comes in court. A lawyer’s website should not cause one to think the content is some form of retribution. Moreover, lawyers should not be in the business of using their websites to frighten complainants. This may not be the intention, but it is a reasonably anticipated effect in certain cases. In cases such as sex assault allegations this type of web advertising is even more harmful and in our view inappropriate.
What do you do about sex assault cases?
We defend them. We do it quietly and we do it well. Our clients are happy with the outcome and they see the results of the work we do. Our success rate might be better than all of the other lawyers, but we don’t know one way or the other. There is no way to count the number of wins, as we can do with IRP cases. As it stands, John Cheevers has succeeded in an unknowable number of sex assault criminal trials over his career. When you become particularly good at something, you get a reputation like John’s. We defend sex assault cases and we do it with integrity and vigour. If you’re charged with sex assault, call us and we’ll help you. We start with the presumption that our clients are innocent and we’ll do what it takes within the law to demonstrate that in court. That’s our job.
As for case summaries…
I wrote some of the earliest lawyer case summaries on the web. To some extent, I feel partially responsible for releasing a monster. The cool head of John Cheevers stopped me from publishing overly descriptive case summaries in sex assault cases. If we succeed in your sex assault trial, you can be assured that we will not exploit you or the complainant for advertising. It’s not our style and we don’t think it’s something that lawyers should do.