By Jack Leitner
We can all attest to having watched one or a number of crime dramas or movies on primetime television. Central to these dramas are not only the suspects, villains 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 getting in the face of witnesses or the jury are all too often scenes witnessed in all manner of crime dramas.
Many of us are led to believe that what is seen on television is similar to what occurs in reality. I have fielded many such questions over the course of my career. Portrayals of criminal defence lawyers only having a select handful of cases within their practice and that their work is confined almost exclusively to the courtroom are amongst those misconceptions. 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 or over the weekend. 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 a call from a person in custody or will make the call to explain their rights, quite often free of charge.
The words lawyer and free are not commonly viewed by the general public as being synonymous. Lawyers are often portrayed as being powerful and greedy, often placing their financial and personal 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 defence 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 all come across where we feel compelled to act, even for a nominal fee, or in some cases no fee at all, in order to strive for social justice and human rights in light of continued legislative attempts to significantly diminish those rights.
A criminal defence 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 defence lawyer portrayed in movies and on television, 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 in a case and the overall result do not 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 criminal defence lawyer’s tactical approach can be significantly altered in the moments before a case depending on eleventh hour developments. An experienced criminal defence lawyer will not only aim to anticipate those last-minute developments but will be in good stead to effectively deal with them.
One would ordinarily (and quite 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 criminal defence lawyer. It shows that we are human and that 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 criminal defence lawyer is not a moral one but a legal one. Is the prosecution able to prove its case beyond reasonable doubt? Have the Police, in light of continued increases in powers investigated their case thoroughly? Have the Police disclosed all of the material evidence to the Defence, and not just what suits their case? As a child at school I loved participating in debating teams. I would be often tasked to argue a case contrary to what my personal views on a topic were and to present arguments in order to persuade the adjudicators and win the debate. The task of a lawyer is to cast one’s personal views to one side and undertake the task at hand. At times, this is not easy, but an experienced criminal defence lawyer and advocate is able to focus their attention on the case which they are dealing with and do so dispassionately.
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. 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 levelled 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 with family. Unfortunately, the demands of the profession are such that work/life balances are not easily achieved. Lawyers generally experience a higher rate of divorce, mental health and other issues. Our jobs are not easy and we deal with tragic and sometimes deeply disturbing cases. 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 as criminal defence lawyers are, we are human after all.
Jack Leitner is an Accredited Specialist in Criminal Law and a Legal Practice Director with Australian Lawyers and Advocates.
