By Jack Leitner
We can all attest to having watched one or a number of crime dramas or movies on prime time television. Central to these dramas are not only the suspects and the police who try to catch them, but also the lawyers who star in televised court room drama. The ruthless badgering of witnesses, questions littered with multiple propositions and, in the case of American dramas, getting in the face of witnesses or the jury are all too often scenes in all manner of crime dramas.
Many are led to believe that lawyers only have a select handful of cases within their practice and that their work is confined almost exclusively to the courtroom.
The stark reality, however, is very different. What does a criminal lawyer really do? Is it really like what you see on television or on movie screens? I’ll take you on a journey about what really goes on behind the scenes in the life of a criminal defence lawyer.
As criminal defence lawyers, the notion of a ‘standard’ working day is, in many ways a complete fallacy. We are often required to be on call before and after hours, including on weekends, to deal with emergencies. Both current and prospective clients in trouble with the law cannot wait until the office opens on Monday when they are arrested on Friday night.
As lawyers, we understand the urgency of these situations and the need to ensure that an individual’s rights are protected whilst in police custody. The first available lawyer will take the call from a person in custody or will make the call to explain their rights free of charge. Yes, free.
The words lawyer and free are not commonly viewed by the general public as being synonymous. Lawyers are often portrayed as being powerful, greedy and often placing their financial interests above that of their clients’. The reality, however, is that criminal defence lawyers do not take the highest profile client with the deepest pockets, but rather will deal with a myriad of simple and complex cases whether they are privately paying clients, legally aided clients, or, in some cases, pro bono (free of charge).
Criminal lawyers often deal with persons from socioeconomically disadvantaged backgrounds who are hit hardest by budget cuts to services such as Legal Aid. Whilst it is simply not possible for every case to be handled free of charge, there are cases which we come across where we feel compelled to act, in order to strive for social justice and human rights in light of successive legislative attempts to significantly diminish those rights.
A lawyer’s work is not confined solely to the courtroom. On the contrary, the majority of work is done in the office, at home and, with developments in technology and our increasing dependence on it, everywhere in between! Research, preparation, drafting documents, reading briefs of evidence, communication with clients and all manner of other work consume a significant portion of a lawyer’s day.
This is hardly the glamorous work of a criminal lawyer portrayed in movies but it is the most fundamental part of our job. That persuasive submission, that brilliant cross-examination of a witness, those carefully considered tactical approaches and the overall result doesn’t come about by simply entering the courtroom. It is the countless hours of painstaking and meticulous preparation which facilitates the advocate’s performance in court.
The arena which the public all too often sees on television, and which some have seen in real life, is the adversarial cauldron of the courtroom. What the public doesn’t always see is what happens behind the scenes. Discussions and negotiations between prosecutors and defence lawyers often occur right before a hearing or trial commences, and a lawyer’s tactical approach can be significantly altered in the moments before a case depending on eleventh hour developments. An experienced lawyer will not only aim to anticipate those last minute dramas, but will be in good stead to effectively deal with them.
One would ordinarily (and understandably) expect a client about to enter a courtroom to be nervous about the outcome of their case. But the portrayal of lawyers being cool, calm and collected is not always correct. I, for one, have been nervous moments before a case starts. Worrying about whether I have missed something, being before a difficult Judge or Magistrate, or being asked to run a case in particular way by my client which is inconsistent with what I perceive to be the best manner of dealing with a case are some examples. Whilst it is professionally required of us to deal with situations dispassionately, this is easier said than done. Feelings of nervousness and worry to some extent are normal on the part of a defence lawyer. It shows that we are human and we care about our clients.
People often ask me “How can you defend someone that you know is guilty?” Contrary to popular belief, the question for a lawyer is not a moral one but a legal one.
Is the prosecution able to prove its case beyond reasonable doubt? As a child at school I loved debating. Quite often I would be asked to argue the case on a question which I had strong personal views on. For instance, it would be a challenge for a monarchist to participate in a debate arguing that Australia should become a republic. The same applies to lawyers.
No matter what our suspicions or beliefs may be, we present our client’s case in accordance with strict ethical requirements to the best of our ability. Have there been cases where a person I thought was guilty as sin was found not guilty and got away with it? Of course! Have there been cases where a person I thought was innocent was nevertheless found guilty? Again, of course.
Some, in the minds of the public, simply cannot be defended. Those persons are viewed as having no right to a fair trial or due process because of the heinous or outrageous allegations against them. Questions such as “how can you defend such scumbags?” are often leveled at lawyers. It is never easy to conduct a case where public opinion, often fuelled by the media and moral panic, is against your client. But it is the professional and ethical responsibility of a lawyer to conduct their client’s case in accordance with their instructions and to focus on this task without becoming susceptible to these external influences.
When the drama of the courtroom has been played out, and preparations are readied for the next case, it is time to spend some well-earned time at home with family. Unfortunately, the demands of the profession are such that work/life balances are not easily achieved. It is well documented that lawyers experience a higher rate of divorce, mental health and other issues. Our jobs are not easy and it is important, although not always possible, to leave work at the office when we come home. We have lives outside work, whether it be with husbands, wives, children, sporting and other social activities.
In reality, no what matter the public’s perceptions of us are, we are human after all.