I want to talk to you about an issue today, which I carefully cover with my clients, and this is ‘civility in the criminal bar’. What does that mean?
Clients will sometimes ask me “Mr. Kruse, why is the criminal defence lawyer friendly, or approaches the crown a certain way outside the courtroom, yet within the structure of the trial it appears to be an all-out war. What’s the dichotomy here, why does this go on?”
Well, this is the great tradition of our criminal bar. There’s the crown side – our government – and there’s the defence side.
Each have their very well-defined roles, and we develop a relationship where we have to work with each other but against each other, but in a very civil, cordial, respectful relationship outside the courtroom.
And inside the courtroom too, except here we’re fighting, we’re doing a trial. And this is expected in the criminal bar, it’s a great tradition. I don’t necessarily hang out or socialize with crown attornies but I am friendly to them. All good defence lawyers are.
We operate in a certain way, and we demand respect of each other, which we acrue by this good relationship. Judges demand it, I demand it myself, the crown attornies demand it. When this breaks down, now we have great emnity outside the courtroom, nasty letter-writing, which is not accepted in the criminal bar.
When I write letters to the crown, I get my point across, I do it in a respectful way. When I talk about negotiation, it’s kind of the same way. All good criminal lawyers act this way. And it has to be explained to the client, because they may see me talking to the crown in a friendly manner.
“Why are you talking to them, isn’t that person your enemy?” Well they are in a way, but they’re not. We’re friendly, we’re cordial, we’re on opposite sides. This is how the system works, and ultimately, this gets results for clients because if you have a crown attorney that respects you, that understands that you know your business, that treats you cordially, that person is more apt to negotiate with you, they’re more apt to make concessions for trial, and they’re more apt to go forward for years in this fine vein where they respect you as a lawyer where you get the best results for clients – which includes winning cases, incidentally.
I have seen so many lawyers chastised or judged for going outside the bounds of getting too aggressive. Aggression in the courtroom is a fine line. It’s more about cleverness. You have to know when to use aggressive tactics. Many times they don’t work. You push it to that line within the bounds of decorom of our Canadian courtroom. It’s a little bit different in the US, you’ll see a lot of aggression, it’s more accepted down there. I personally don’t find it effective. I’ve seen very few lawyers able to pull off a completely aggressive trial, throughout the whole trial.
You selectively do it, push the witness. You sometimes get more with honey than vinegar. And it’s the same thing whether it’s in the courtroom, dealing with a witness, whether it’s dealing with the crown attorney, and that needs to be explained to clients about lawyers so they understand this dichotomy.
Now, in the civil bar and the family bar, we’ve had some problems in Ontario amongst some lawyers. They get into this nasty letter-writing campaign, uncivil comments outside of a courtroom at discoveries. It’s not the way to practice law. The law society is cracking down on this, they’re encouraging civility, they’re encouraging you to work as hard as you can on your client’s case but still maintain a relationship that’s cordial.
If you have that nasty relationship with the other lawyer, do you really think that lawyer’s going to work less hard? They’re going to want to annihilate you. My goal is not to get the crown angry at you. My goal is to do our job and for us to win the case. And this is how it’s down by ourself, our lawyers, and every good criminal lawyer in the province.