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Lawyer-client interviews and the social organization of preparation for court in criminal and divorce… Groves, Patricia Heffron 1973

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LAWYER-CLIENT INTERVIEWS AND THE SOCIAL ORGANIZATION OF PREPARATION FOR COURT IN CRIMINAL AND DIVORCE CASES by P a t r i c i a Heffron Groves B.A., The University of Toronto, 1964 A Thesis Submitted i n P a r t i a l Fulfilment Of The Requirements f o r the Degree Of Doctor of Philosophy In The Department Of Anthropology and Sociology We accept t h i s thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA A p r i l , 1973. In p r e s e n t i n g t h i s t h e s i s i n p a r t i a l f u l f i l m e n t o f the r e q u i r e m e n t s f o r an advanced degree a t t h e U n i v e r s i t y o f B r i t i s h Columbia, I agree t h a t the L i b r a r y s h a l l make i t f r e e l y a v a i l a b l e f o r r e f e r e n c e and s t u d y . I f u r t h e r agree t h a t p e r m i s s i o n f o r e x t e n s i v e c o p y i n g o f t h i s t h e s i s f o r s c h o l a r l y p urposes may be g r a n t e d by the Head o f my Department o r by h i s r e p r e s e n t a t i v e s . I t i s u n d e r s t o o d t h a t c o p y i n g o r p u b l i c a t i o n o f t h i s t h e s i s f o r f i n a n c i a l g a i n s h a l l n o t be a l l o w e d w i t h o u t my w r i t t e n p e r m i s s i o n . JT Anthropology and Sociology Department o f The U n i v e r s i t y o f B r i t i s h Columbia Vancouver 8, Canada Date A p r i l 2 6 t h ' 1 9 7 5 i ABSTRACT This study seeks to provide an ethnographic d e s c r i p -t i o n and analysis of the p r a c t i c a l workings of that part of the l e g a l system which i s manifested i n the d a i l y routine practices of crim i n a l and divorce lawyers i n private prac-t i c e . I t documents the lawyer's r o l e i n p r e - t r i a l deter-minations. I t aims to show how the organizational features of the lawyer's work and his r e l a t i o n s h i p to other profess-ionals on the l e g a l scene a f f e c t outcomes for the c l i e n t . The analysis r e s t s on f i e l d observation and p a r t i c i -pation - d a i l y for one year, and in t e r m i t t e n t l y for another year - i n the o f f i c e s of four young defense lawyers i n t h e i r f i r s t two years of a pra c t i c e which consisted mostly of minor criminal Legal Aid cases and some divorce work. The main material f o r the analysis consists of t r a n s c r i p t s of taped interviews between these lawyers and t h e i r c l i e n t s . The lawyer's o f f i c e i s a l i n k i n the chain that begins with p o l i c e apprehension of suspects and ends with judgment i n the courtroom. In deciding how to handle the criminal c l i e n t ' s case, the lawyer looks back i n routine ways to c e r t a i n features of the s i t u a t i o n of arrest and looks forward i n equally routine ways to the probable s i t u a t i o n i n court. The interview i s an important phase i n the lawyer 1s preparation of the case and one i n which major decisions are i i made. The lawyer takes various factors into account i n making his p r e - t r i a l decisions including what i s known i n the l e g a l community as the "story". The story i s what the c l i e n t t e l l s the lawyer (or the p o l i c e or the court) about what happened i n the events that lead to his a r r e s t . The story i s the concrete focus of interchanges between lawyer and c l i e n t . The main work of the interview i s i n e l i c i t i n g and assessing the story. I examined the production and assessment of both criminal and divorce s t o r i e s i n terms of the features that illuminate the s o c i a l organization f o r t r i a l . The lawyer 1s i n t e r e s t i n what the c l i e n t says i n criminal and divorce interviews i s s i m i l a r : he focuses on the aspects and p o s s i b i l i t i e s of the c l i e n t ' s s t o r i e s that are t r a n s l a t a b l e into what he needs to get the job done: i n divorce cases to "work up the grounds", and i n criminal cases to "beat the rap". I found that i n interviews with criminal c l i e n t s there were two main influences on the structure of proceedings: one r e l a t i n g to the s i t u a t i o n of arrest - the prosecutor's version of the p o l i c e report (the " p a r t i c u l a r s " ) ; and the other to the expected s i t u a t i o n i n court - the c r e d i b i l i t y of the c l i e n t i n t e l l i n g his story. In divorce interviews the lawyer s i m i l a r l y o rients to how the case w i l l be processed at t r i a l , and to the s i t u a t i o n p r e c i p i t a t i n g the divorce only insofar as i t i s usable i n working up the most e f f i c i e n t grounds for divorce as required by the court. Working up the grounds during a i i i divorce interview i s a structured procedure following the same general routine f o r uncontested cases (and a d i f f e r e n t general routine for contested cases) regardless of who the c l i e n t i s and of what emotional state he i s i n . We see how expert and layman manage the course of the i n t e r a c t i o n so that for both the purposes of the interview are achieved. One of'the contributions of t h i s thesis i s to provide an understanding of the workings of one part of the l e g a l system - an understanding that i s neither the lawyer's nor the layman's view. The focus i s on the adaptive and r a t i o n a l character of the d a i l y practices that sustain the workings of the l e g a l system as evidenced i n the routine performance of lawyers as p r a c t i t i o n e r s . TABLE OF CONTENTS Page CHAPTER I INTRODUCTION 1 CHAPTER II LAWYER-CLIENT INTERVIEWS IN THE CONTEXT OF THE PROCESSING OF OFFENDERS I INTRODUCTION 40 II PRECEDING EVENTS 42 (A) POLICE ENCOUNTER 42 (B) LAWYER AND CLIENT CONTACT: LEGAL AID 45 (C) CONTACT WITH THE PROSECUTOR (1) The P a r t i c u l a r s 54 (2) The Deal 59 (3) Relationship Between Prosecutor and Defense Lawyer 70 III RELATIONSHIP BETWEEN LAWYER AND CLIENT 78 IV ORIENTATION TO COURT: 101 (A) DEFEATING THE PARTICULARS 101 (B) ATTITUDE TO JUDGES 105 CHAPTER III INTERVIEWING IN CRIMINAL CASES: CRIMINAL STORIES 120 I INTRODUCTION 120 II THE COURSE OF THE INTERVIEW .121 i v V III THE STORY 127 IV THE PARTICULARS AND THE STORY 136 (A) THE CASE OF MR. O'REILLY AND THE BADGE 148 (B) THE CASE OF MRS. APPLEBY AND THE BREATHALYZER 161 V CREDIBILITY AND THE STORY 169 (A) THE CASE OF MR. JONES, HIS SON, AND HIS SON'S FRIENDS AND THE MEAT, MIXMASTER, AND POTS AND PANS 171 (B) THE CASE OF THE ACID AND THE POSTER, THE PIPES AND THE BOOT 196 (C) THE CASE OF THE DOPE AND THE TWO JACKETS 200 (D) THE CASE OF THE HITCHHIKERS AND THE DOPE 202 (E) THE CASE OF THE SIXTEEN STEAKS 210 (F) THE CASE OF THE IMMIGRANT AND THE CAN OF MILK AND THE FLASH CUBES 216 (G) CHARACTERS AND CREDIBILITY 224 (1) THE HITCHHIKERS AND THE DOPE 224 (2) O'REILLY AND THE BADGE 227 VI JOINT STORY PRODUCTION 231 (A) THE CASE OF THE HALF A BOTTLE OF BACARDI AND THE STOLEN SUITCASE 232 (B) THE CASE OF THE SIXTEEN STEAKS 235 (C) THE CASE OF BATES AND THE BALLOON 237 (D) THE CASE OF THE SECURITY GUARD AND THE FALLING DOPE 239 (E) THE CASE OF THE DOPE AND THE TWO JACKETS 242 v i CHAPTER IV INTERVIEWING IN DIVORCE CASES: DIVORCE STORIES 245 I INTRODUCTION 245 (A) COMPARISON WITH CRIMINAL CASES 252 (1) P r e c i p i t a t i n g Events 252 (2) The Focus of the Interview: The P a r t i c u l a r s and the Grounds 255 (3) The "Legal" Context of Divorce Work 260 (4) I n i t i a t i n g Proceedings 270 II CLIENTS' RELEVANCES AND LAWYERS* RELEVANCES 300 CHAPTER V SUMMARY AND CONCLUDING REMARKS 342 BIBLIOGRAPHY 358 APPENDIX A: CHART OF CASES IN TRANSCRIBED INTERVIEWS 365 APPENDIX B: FORMAT OF POLICE REPORT 369 APPENDIX C: LEGAL AID APPLICATION FORMS FOR CRIMINAL AND CIVIL CASES 370 APPENDIX D: LAWYERS' GUIDE FOR CONDUCTING DIVORCE INTERVIEW 373 APPENDIX E: LAWYERS' GUIDE FOR PROCEDURE FOR UNCONTESTED DIVORCE 375 DEDICATION To my Parents: WILLIAM JAMES HEFFRON, KATHLEEN CLARK HEFFRON And for my C h i l d : SUSANNAH ELIZABETH HEFFRON GROVES And her Grandparents: TOM DOUGLAS GROVES, ELIZABETH McCOWAN GROVES v i i v i i i DEDICATION TOO ACKNOWLEDGMENT "Then, Don Juan, you don't see the world i n the usual way anymore." "I see both ways. When I want to look at the world I see i t the way you do. Then when I want to see i t I look at i t the way I know and I perceive i t i n a d i f f e r e n t way." "Do things look co n s i s t e n t l y the same every time you see them?" "Things don't change. You change your way of looking, that's a l l . " l I wish to thank my four lawyers for helping me to "think l i k e a lawyer". I wish to thank my thesis advisor, Roy Turner, f o r making me think l i k e a S o c i o l o g i s t again. I am thanking Roy Turner not only for his immense p r a c t i c a l and good humoured help with t h i s work; but als o , and perhaps more importantly, for introducing myself and others to a valuable new i n t e l l e c t u a l perspective. I wish to thank my readers f o r t h e i r patience and for t h e i r valuable suggestions: Dorothy Smith, Michael Kew, Kenneth Stoddart, Adrian Marriage, Robert Boese. A very g r a t e f u l thank you to Fay Masoet f o r preparing the f i n a l manuscript. I have expressed my thanks a l l along to the many lawyers who were so h e l p f u l and interested and so generous with t h e i r time. I would l i k e to thank them again by name here, but they must remain anonymous. And, s p e c i a l l y , thanks to the L i t t l e Bear for sharing me with my work. ''"Carlos Castaneda, A Separate R e a l i t y , New York; Simon and Schuster, 1971, p. 50. i x CHAPTER I INTRODUCTION The law i s a complex series of s o c i a l events whose general c h a r a c t e r i s t i c i s that they regulate matters of personal and i n s t i t u t i o n a l i n t e r e s t and value that are f u n c t i o n a l l y important and strongly f e l t . The law cannot be reduced to terms that are simpler than the s o c i a l order of which i t i s a part, nor can i t be i s o l a t e d except a n a l y t i c a l l y (and even then only with great d i f f i c u l t y ) from the pressures and c o n f l i c t s to which i t s p a r t i c u l a r terms r e f e r . The l e g a l operatives who p a r t i c i p a t e i n these events play a r o l e that corresponds i n ^ complexity and i n t e n s i t y with the events themselves . Very l i t t l e i s known about the intimate workings of the l e g a l system on the l e v e l of personal i n t e r a c t i o n between defense lawyers and t h e i r c l i e n t s : between persons who must formally face society to be punished or excused or acquitted - and those whose job i t i s to defend them. Courtroom t r i a l s have been given much attention i n drama, i n l i t e r a t u r e , on t e l e v i s i o n and i n the d a i l y newspapers. However, much of what happens i n court apart from the general program of events as set out i n the rules of procedure for a given type of case and i n the other r u l e s of play (that i s , the rules of evidence and the understood and accepted informal game ru l e s governing i n t e r a c t i o n among the profess-i o n a l players) i s dependent on the lawyer's and prosecutor's preparation f o r court behind the scenes. The props, the Geoffrey C. Hazard, J r . , "Reflections on Four Studies of the Legal Profession" S o c i a l Problems, (Summer Supplement, 1965) , p. 47 . 1 2 organization, the i n t e r e s t s and considerations, and the kinds of personal interplay that underlie and structure what w i l l take place i n court, unfortunately u n t i l quite recently, have not been attended to by the s o c i o l o g i s t whose methodology has favoured survey, interview and questionnaire-oriented research. Such research tech-niques are not amenable to d e t a i l e d study of the process of i n t e r p l a y between a lawyer and his c l i e n t and h i s preparatory materials. With the current i n t e r e s t of some s o c i o l o g i s t s i n ethnographic^" techniques of research, we have learned more about the workings of the l e g a l system "from the i n s i d e " . For instance, there have been a few intimate studies of the p o l i c e - most notably an ethnographic work by Jerome 2 Skolnick who p a r t i c i p a t e d with the p o l i c e i n t h e i r d a i l y For two decades William F. Whyte's Street Corner  Society, (Chicago: University of Chicago Press, 1943), was almost alone i n t h i s category. Recently there have been many ethnographic studies; f o r instance: David Sudnow, Passing On, The S o c i a l Organization of Dying, (Englewood C l i f f s , New Jersey: Prentice H a l l , 1967); Harvey Sacks, "The Search for Help - No-One to Turn to" i n Edwin S. Shneidman, Ed., Essays i n Self Destruction, (New York: Science House, Inc., 1967); Sherri Cavan, Liquor Licence, An Ethnography of Bar Behaviour, (Chicago: Aldine, 1966); Marvin B. Scott, The Racing Game, (Chicago: Aldine, 1968); J u l i u s A. Roth, Timetables, (New York: Bobbs-Merrill, 1963). 2 Jerome H. Skolnick, J u s t i c e Without T r i a l , (New York, Wiley, 1966). Another work of i n t e r e s t on the p o l i c e i s : Egon B i t t n e r , "The P o l i c e on Skid Row: A study of Peace-Keeping", American S o c i o l o g i c a l Review, Vo l . 32, No. 5, (1967), pp. 699-715. 3 round of a c t i v i t i e s for over a year. There have not however been p a r a l l e l studies of defense lawyers i n t h e i r d a i l y round of a c t i v i t i e s . As the "suspect" goes from arrest to punish-ment or freedom, he i s f a i r l y v i s i b l e to us i n his encounters with the p o l i c e and i n his i n t e r a c t i o n i n court - but what happens to him " i n between" the p o l i c e and appearance i n court i s r e l a t i v e l y unexplored. Very few of us have had or w i l l have the experience of r e l a t i n g to the l e g a l system on a cri m i n a l charge; more of us know or w i l l know what i t i s l i k e to deal with and be processed by the l e g a l system i n getting a divorce; however, for most middle c l a s s people i t i s usually only through buying or s e l l i n g a house or i n s e t t l i n g an estate that they become " c l i e n t s " . This study seeks to provide an ethnographic descr i p -t i o n and analysis of the p r a c t i c a l workings of the l e g a l system as manifest i n d a i l y routine practices of lawyers. I t i s a study of the lawyer's r o l e i n p r e - t r i a l determinations. I t concentrates on the s o c i a l organizational features of the p r a c t i c a l a c t i v i t i e s that constitute the lawyer's d a i l y working world. Like some recent ethnographic studies of the profess-ions or occupations, t h i s study supports the idea that i n attempting to discover the actual practices of members and i n attempting to understand the structure of the demands that generate these p r a c t i c e s , as well as the import of the 4 outcome of these practices for discussions of s o c i a l order, much i s to be gained from adopting a perspective that i s sen s i t i v e to displaying the demands of the routine ways i n which any occupation i s s o c i a l l y organized. Thus Skolnick i n h is participant-observer study of the p o l i c e observed that when the p o l i c e are faced with a c o n f l i c t between up-holding the r u l e of law and maintaining order by appre-hending suspects, they subvert the r u l e of law i n response to administrative demands to meet arrest quotas. P o l i c e respond to administrative demands of the job rather than to public i d e a l s of c i v i l r i g h t s . S i m i l a r l y , Turner"'" i n an ethnographic study of juvenile bureau o f f i c e r s concluded that t h e i r working day schedule was responsive to the demands and administrative conveniences of the work s i t u a t i o n i t s e l f , 2 rather than to the urgencies of juvenile problems. Cicourel i n h i s study of the s o c i a l organization of juvenile j u s t i c e showed how delinquency rates change i f the administrative conditions of the p o l i c e change - regardless of what juve-n i l e s may a c t u a l l y be doing. Grosman i n a study of the exercise of d i s c r e t i o n by prosecutors claims that: Roy Turner, "Occupational Routines: Some Demand Ch a r a c t e r i s t i c s of Po l i c e Work" Paper presented at the Annual meetings of the CSAA, Toronto, (June 1969). 2 Aron V. Cic o u r e l , The Soc i a l Organization of Juvenile  J u s t i c e , (New York, Wiley, 1968). 5 ... i t i s not j u d i c i a l or l e g i s l a t i v e theory which determines the prosecutor's d i s c r e t i o n or mode of professional behaviour. Often i t i s the administrative demands made upon him and the informal s o c i a l r e l a t i o n s h i p s which develop within his operational environment that control h i s decision-making processes. These informal f a c -t o r s , although c r u c i a l to any r e a l i s t i c appraisal of the criminal prosecuting process, have not i n the past been acknowledged by l e g i s l a t i o n or by the j u d i c i a r y . There are considerable and important d i f f e r -ences between what the prosecutor does and what the l e g a l l i t e r a t u r e and j u d i c i a l decisions say he should do. ... Yet nothing stranger i s sugges-ted here than the affi r m a t i o n of the contemporary notion that fundamentally, law i s t i e d to the way i n which people behave.1 0'Gorman i n a study of lawyers' handling of matri-monial cases explains how and why lawyers break the s p i r i t of the law. We noted that a c o n f l i c t e x i s t s between l e g a l theory and public attitudes concerning matrimonial d i s s o l u t i o n s . During the past hundred years the rate of marital d i s r u p t i o n has greatly increased, and while the public has become more tolerant of divorce and remarriage, the l e g a l norms governing the termination of the marriage have not changed. As a r e s u l t , there has emerged a widespread i n s t i -t u t i o n a l i z e d evasion of these l e g a l norms. This evasion creates a professional r o l e c o n f l i c t for lawyers who are simultaneously expected to uphold the law and represent c l i e n t s intent on ending t h e i r marriages. The r o l e c o n f l i c t i s a l l e v i a t e d somewhat by two attitudes p r e v a i l i n g among lawyers. (1) I t i s the general professional consensus that matrimonial laws are i n e f f e c t u a l ; and (2) many members of the bench and bar t a c i t l y recognize that the evasion of matrimonial laws achieves a s o c i a l l y desired end.2 Brian A. Grosman, The Prosecutor, (University of Toronto Press, 1969), pp. 3-4. 2 Hubert J . 0"Gorman, Lawyers and Matrimonial Cases, (New York: The Free Press, 1963), pp. 152-53. 6 Sudnow showed how i n the public defender system i n C a l i f o r n i a the administrative demands of the job and the routine informal working r e l a t i o n s h i p between public defender and prosecutor - rather than abstract p r i n c i p l e s of " j u s t i c e " - a f f e c t the fate of the defendant. This study, too shows how the organizational features of the private defense lawyer's work and h i s r e l a t i o n s h i p with other professionals on the l e g a l scene a f f e c t s outcomes for the c l i e n t and how these consi-derations display the operation of the l e g a l system. There are many anecdotal autobiographical works by lawyers about t h e i r experiences - usually t h e i r exper-iences i n court with attention to the dramatic or humorous 2 aspects of t r i a l work . While such works provide much d e t a i l about courtroom experience, they t e l l us very l i t t l e about actual behind-the-scenes interplay between lawyer and c l i e n t . These books are written from the point of view of David Sudnow, "Normal Crimes: S o c i o l o g i c a l Features of the Penal Code i n a Public Defender O f f i c e " , S o c i a l  Problems, V o l . 12, No. 3, (Winter, 1965), pp. 255-276. 2 The following are some c l a s s i c examples of such books: Francis L. Wellman, Day i n Court, (New York: MacMillan, 1926); Richard Harris, Before and at T r i a l , (London: Edward, Thompson & Co., 1890); Louis Nizer, My L i f e i n  Court, (Garden C i t y , N.Y.: Doubleday, 1961); John P a r r i s , Under My Wig, (London: Arthur Barker Ltd., 1961); Francis L. Bailey, The Defense Never Rests, (New York: Stein and Day, 1971). 7 the p a r t i c i p a t i n g lawyer from experience and materials that are f i l t e r e d i n unseen and unknown ways so that the reader has no access to either data or methods and hence cannot analyse the status of the descriptions or findings as knowledge. In the past decade there have been several studies of lawyers by s o c i o l o g i s t s . Most of these works have been based on extensive interviews with lawyers"'' and concentrate on s o c i a l background data about lawyers and on occupational a t t i t u d e s , type of p r a c t i c e , r o l e contra-2 d i c t i o n s and so on. Smigel , f o r example, i n studying the "Wall Street Lawyer" c o l l e c t e d data on the twenty largest law firms i n New York C i t y . Each firm was composed of f i f t y or more attorneys. He began by interviewing t h i r t y - e i g h t law-yers i n one firm; i n the second firm he interviewed twenty, and gradually reduced the number of lawyers interviewed i n each succeeding firm u n t i l only a few lawyers were i n t e r -viewed per firm. In a l l he interviewed 18 9 lawyers out of a universe of 1700 (eleven percent). The data from his For example: Erwin 0. Smigel, The Wall Street Lawyer, (New York: Free Press, 1964); Walter O. Weyrauch, The  Personality of Lawyers, (New Haven: Yale U n i v e r s i t y Press, 1964); Jerome E. C a r l i n , Lawyers on Their Own, (New Brunswick, New Jersey: Rutgers University Press, 1962); Hubert J . O'Gorman, Lawyers & Matrimonial Cases, (New York: The Free Press, 1963). Smigel, The Wall Street Lawyer. 8 interviews enabled him to ta l k about career patterns of Wall Street lawyers, the organization of t h e i r firms, the way i n which large firm p r a c t i c e d i f f e r s from small firm p r a c t i c e and so on. However, the reader i s l e f t with l i t t l e idea of what i t i s l i k e to be a Wall Street lawyer i n terms of the d a i l y practices that constitute t h e i r working world. As an a l t e r n a t i v e to Smigel, one could take as methodological advice Sudnow*s stance: A c e n t r a l t h e o r e t i c a l and methodological perspective guides much of the study to follow. That perspective says that the categories of ho s p i t a l l i f e , e.g., " l i f e " , " i l l n e s s " "patient" "dying" "death" or whatever, are to be seen as constituted by the practices of h o s p i t a l personnel as they engage i n t h e i r d a i l y r o u t i n i z e d i n t e r -actions within ah organizational milieu.1 The import of t h i s p o s i t i o n and the disadvantage of the survey-interview type of study i s well noted by Hazard i n the following c r i t i q u e of Smigel: The one thing he di d not f i n d out about Wall Street lawyers i s what they do i n t h e i r professional capacity. What the Wall Street lawyers do i n t h e i r professional capacity i s nothing less than to pro-vide prudential and techn i c a l assistance i n the management of the private sector of the world economy. David Sudnow, Passing On, The So c i a l Organization of  Dying, (Englewood C l i f f s , New Jersey: Prentice H a l l , 1967), p. 8. A ra t i o n a l e for t h i s methodological stance i s p r o v i -ded f o r instance i n the following works: Aron V. Ci c o u r e l , Method and Measurement i n Sociology, (New York: Free Press, 1964); William F. Whyte, Street Corner Society, (Chicago: University of Chicago Press, 1943); P h i l i p Hammond, Sociolo- g i s t s at Work, (New York: Basic Books, 1964); Arthur J . Vid i c h , Ed., Reflections on Community Studies, (New York: Wiley, 1964); Robert W. Habenstein, Pathways to Data, (New York: Aldine, 1970). 9 I t i s t h i s functional r o l e of the Wall Street law-yers, rather than the f a c t that l i k e C a r l i n ' s Chicago lawyers they have an LL.B that explains what the Wall Street lawyers are and would have helped explain why they don't wear flashy clothes, beards or an open countenance. The great d i f f i c u l t y with finding out i n any d e t a i l what the Wall Street lawyers, or any other lawyers for that matter i n f a c t do i n t h e i r pro-f e s s i o n a l capacity i s they won't t e l l . This i s of course because what they know i s committed to them by t h e i r c l i e n t s upon the understanding that i t i s c o n f i d e n t i a l . In view of t h i s obstacle, survey research technique doesn't work very well, except as a means of ascertaining personal mis-c e l l a n i a about lawyers themselves. As we have seen, these personal mi s c e l l a n i a don't add up to an understanding of the lawyer's r o l e i n society, nor therefore to a much deepened understanding of the function of law i n the s o c i a l order. The f a c t i s that other possibly l e s s pre-c i s e methods have to be used i f any r e a l headway i s to be made i n the sociology of law.l The d i f f i c u l t y i n f i n d i n g out what lawyers do i s only p a r t l y as Hazard says that they "won't t e l l " ; i t i s also that they do not know what to t e l l or how to, t e l l i t . One must be i n a p o s i t i o n to observe the d a i l y a c t i v i t i e s of lawyers i n order to analyse the structures that underlie those a c t i v i t i e s . David Sudnow's analysis of the public defender sys-tem i s an exception to the type of study c r i t i c i z e d above. Hazard, "Reflection on Four Studies of the Legal Profession", p. 52. 2 Sudnow, "Normal Crimes: S o c i o l o g i c a l Features of the Penal Code i n a Public Defender O f f i c e " . 10 I t i s "based on f i e l d observation of a Public Defender O f f i c e i n a metropolitan C a l i f o r n i a community""'" and makes use of actual interviews between lawyers (public defenders) 2 and c l i e n t s i n i t s ana l y s i s . Sudnow describes the way i n which Public Defenders (lawyers appointed by the state to routi n e l y defend a series of persons accused i n criminal matters, i n much the same way that public prosecutors deal with a l l those Accused coming before a given court) attend to features of what they see to be t y p i c a l ways i n which given crimes are committed and to the t y p i c a l c h a r a c t e r i s t i c s of persons committing them i n deciding how to conduct the case, rather than to, for instance, the s p e c i f i c s of the criminal code and case law. In deciding how to plead the c l i e n t and how to conduct the defense, points of law are not the important factors attended to, but rather, c e r t a i n d e t a i l s of the way i n which the crime was committed (with attention to whether or not i t was t y p i c a l of the way i n which that crime i s usually committed) and p a r t i c u l a r features of the s o c i a l c h a r a c t e r i s t i c s of the Accused. Sudnow suggests that private defense lawyers may do things d i f f e r e n t l y than Public Defenders i n t r i a l pre-paration : Ibid, p. 255 i For an example of a t r a n s c r i p t , see i b i d , p. 267-268. 11 In f a c t he the Public Defender doesn't "prepare for t r i a l " i n any ordinary sense. (I use the term "ordinary" with h e s i t a t i o n ; what "preparation for t r i a l " might i n fa c t involve with other than Public Defender lawyers has not, to my knowledge been investigated.)1 This thesis constitutes j u s t such an i n v e s t i g a t i o n ; that i s , of the s o c i a l organization of t r i a l preparation i n private p r a c t i c e . My analysis rests on f i e l d obser-vation and p a r t i c i p a t i o n - d a i l y for one year, and i n t e r -mittently for another year - i n the o f f i c e s of four young defense lawyers i n t h e i r f i r s t two years of a p r a c t i c e which consisted mostly of minor criminal l e g a l a i d cases and some divorce work (along with a scattering of other m i s c e l l a -neous types of cases such as accident and corporate work). The main material for my analysis consists of t r a n -s c r i p t s of taped interviews between these lawyers and t h e i r c l i e n t s ; but my observational involvement i n the l e g a l community went beyond the o f f i c e s of the four lawyers into the courts, and b r i e f l y into the o f f i c e s of several other lawyers. I spent time with defense lawyers and with t h e i r ^associates i n the l e g a l community not only i n the d a i l y routine of t h e i r o f f i c e and court work, but also during lunch times and i n the pubs a f t e r f i v e ; and, sometimes, i n t h e i r s o c i a l involvements on weekends - so that my study Sudnow, "Normal Crimes, S o c i o l o g i c a l Features of the Penal Code i n a Public Defender O f f i c e " , p. 272. 12 could be considered i n a sense an ethnography of "young lawyers' culture". I undertook the ethnographic work as a necessary context of i n t e r p r e t a t i o n and background base for my analysis of preparation for court as i t takes place i n the interview encounters between lawyer and c l i e n t . I w i l l now out l i n e the d e t a i l s of the methods I used and of the se t t i n g i n which they were employed. In 1966 I spent six months observing i n the Magistrates' Courts i n a study of courtroom interaction.^" At the time I r e a l i z e d that to study what happens i n the preparations for court - e s p e c i a l l y i n the defense lawyer's o f f i c e -would be p a r t i c u l a r l y i n t e r e s t i n g . This eventually became my preferred topic f o r a PhD d i s s e r t a t i o n . In the spring of 197 0 I discussed the p o s s i b i l i t i e s of such a study with a young lawyer about to be c a l l e d to the bar. He expressed enthusiasm for the research and said he would be delighted to help me with the study provided that the Law Society approved of the arrangements. He then went to the Law Society to discuss the proposed study and to see i f they would allow us to tape interviews between lawyer and c l i e n t . The Law Society granted the lawyer permission to help me with the study and s p e c i f i c a l l y to tape interviews with c l i e n t s P a t r i c i a A. Heffron & G i l l i a n M. Wilder, "Order i n Court: Some Notes on the Structure of Courtroom i n t e r a c t i o n " , (Unpublished Paper, The University of B r i t i s h Columbia, A p r i l , 1966). 13 at t h e i r own d i s c r e t i o n for use i n my study. I then made arrangements with that lawyer and his two future partners to become a "p a r t i c i p a n t " observer i n t h e i r new law firm which would open i n the f a l l . The arrangement was that I would work without pay as a secretary i n the firm each afternoon. I saw t h i s as a way of " f i t t i n g i n t o " the s e t t i n g and also as a way of returning the service the lawyers would be giving me i n taping t h e i r interviews and i n helping me to learn about the l e g a l world from a lawyer 1s point of view by t a l k i n g to me about t h e i r cases, taking me to court, giving me access to f i l e s , etc. I knew that I would absorb useful background information for my study i n the course of my duties as a secretary. A secretary would be hired to work i n the mornings so that I would have enough free time to keep up with aspects of my study that I could not do i n my capacity as secretary. The lawyers j u s t s t a r t i n g up a p r a c t i c e of t h e i r own were delighted at the prospect of defraying some of the expenses of s e c r e t a r i a l help. I t seemed an advantageous arrangement to a l l p a r t i e s . This agreement was made i n the spring of 197 0, but the firm would not be formed and i n operation u n t i l the f a l l of 197 0. I had then to decide how most p r o f i t a b l y to spend the summer. One of the lawyers suggested that I work for and with another young lawyer he knew who had just started p r a c t i c i n g on his own immediately a f t e r being c a l l e d to the bar and could not a f f o r d a secretary. This lawyer said he 14 would be glad to help me with my study i f I helped him with his o f f i c e work. I took advantage of the opportunity. This turned out to be an i d e a l s i t u a t i o n for "learning the ropes" about l e g a l s e c r e t a r i a l work and about the l e g a l scene i n general - so that by the f a l l I was not going into the more complicated and demanding s i t u a t i o n i n a firm of three lawyers (rather than one) i n a more formal setting as a novice, but as someone already known and accepted on the l e g a l scene (that i s i n the courts and around the places where lawyers go for coffee, beer or lunch). My s o c i a l i -zation into the r o l e of secretary and into the l e g a l sub-culture i n general was such that by the time the new firm opened i n the f a l l , the newly hired secretary (who had never worked i n a law firm) r e l i e d on me for job t r a i n i n g . ... i f a s o c i o l o g i s t r i d e s with the p o l i c e for a day or two he may be given what they c a l l the "whitewash tour". As he becomes part of the scene, however, he comes to be seen less as an agent of control than as an accomplice.1 In the f i r s t s e t t i n g i n a one-man law firm, my r o l e as "sometime secretary" was rewarding to both myself and the lawyer. In a one-man law firm doing mainly c r i m i -nal Legal Aid work, there i s minimal s e c r e t a r i a l work; an average of about an hour per day. From my point of view my r o l e as secretary had c e r t a i n advantages: (1) I t allowed me to f e e l easy about imposing on the lawyers' time. I t Skolnick, J u s t i c e Without T r i a l , pp. 36-37. 15 also allowed me to f e e l comfortable about any of the nuisance e f f e c t s i n e v i t a b l y involved when a "native" must incorporate a "non-native" into his d a i l y work routine. (2) I t helped me to f i t unobtrusively into the scene as a h e l p f u l p a r t i c i p a n t , so that eventually: I f e l t s u f f i c i e n t l y disregarded to be r e l a t i v e l y secure that what I was witnessing would have gone on were I not around.^ (3) Answering phone c a l l s and s i t t i n g at the reception desk gave me access to data I would have otherwise missed. This involved i n t e r a c t i o n with the c l i e n t waiting to see the lawyer and telephone conversation with other lawyers, prosecutors and c l i e n t s . In i n t e r a c t i o n with the c l i e n t , I was c a r e f u l to stay within the confines of the s e c r e t a r i a l r o l e as I understood i t from my observations of other l e g a l s e c r e t a r i e s . Many c l i e n t s engaged me i n conversation about t h e i r troubles. My response was the usual one for secre-t a r i e s dealing with that s i t u a t i o n : p o l i t e i n t e r e s t and business-like sympathy. The degree of attention that I gave to a c l i e n t i n such circumstances depended on how "busy" I was with my usual administrative tasks. This was one s i t u a -t i o n where I sometimes f e l t uneasy about my r o l e as secretary; however, I was always aware of the consideration that any other secretary would have heard the same things and responded i n the same way. I believe that t h i s r o l e helped me consider-ably i n understanding the c l i e n t ' s point of view and thus i n Skolnick, J u s t i c e Without T r i a l , p. 7. 16 gaining some distance from the lawyer's point of view. I used the materials I assimilated i n i n t e r a c t i o n with the c l i e n t s o l e l y as a context of i n t e r p r e t a t i o n and not as materials to be quoted and analysed e x p l i c i t l y i n the "public" context of t h i s work. I typed a l l the l e t t e r s , a f f i d a v i t s , p e t i t i o n s , orders, etc., that went out of the o f f i c e during the period that I was there (June to September). This, however, did not prevent me from going to court or l i s t e n i n g to con-versations. The typing volume and pressure were low enough that I could do s e c r e t a r i a l work at convenient times, such as when the lawyer was q u i e t l y busy at his desk. In t h i s s e t t i n g I f e e l that the s e c r e t a r i a l job enriched my data opportunities. From my p o s i t i o n at the s e c r e t a r i a l desk, a l l conversation i n the e n t i r e two-room o f f i c e was c l e a r l y audible. There was a window i n the t h i n wall which separated my desk from the lawyer's desk so that I could e a s i l y observe v i s u a l l y much of the a c t i v i t y i n h i s o f f i c e . Unfortunately i n my second observation s i t u a t i o n , the physical layout was such that I could neither observe nor hear a c t i v i t i e s i n any of the lawyer's o f f i c e s . The secretary's desk was situated i n a separate reception area. I also had a desk i n an unoccupied o f f i c e between the o f f i c e s of two of the lawyers where I could work when free from my duties as afternoon secretary. The volume and pressure of 17 my typing and r e c e p t i o n i s t duties was such that I d i d not f e e l as free to go to court as I had i n the f i r s t o f f i c e . Another factor decreased the data opportunities i n the new o f f i c e . In the f i r s t o f f i c e , the lawyer had only me to discuss his cases with when he returned to the o f f i c e . In the second firm there was a tendency for the lawyers to discuss cases with each other i n t h e i r o f f i c e s . While I could, and sometimes d i d , ease myself into these conversa-tions - p r a c t i c a l l y speaking the pressures of the s i t u a t i o n often discouraged i t ; that i s , someone had to guard the reception area and answer the telephone which rang very frequently. In the second firm the opportunities for tapes of interviews between lawyers and c l i e n t s were increased, though, because there were more lawyers and more c l i e n t s interviewed per week. The second s e t t i n g also presented one new regular data opportunity: the pub across the stre e t where more often than not, the lawyers gathered a f t e r f i v e . There I was always welcomed and integrated as a colleague; and I f e e l that the relaxed conversations between lawyers about the events of the day greatly enhanced my grasp of t h e i r world and of the p a r t i c u l a r cases being discussed. During the f i r s t few months i n the second se t t i n g i t was my o v e r a l l f e e l i n g that the lawyers were happier when I was performing my r o l e of secretary and being a resource f o r 18 them, rather than when I was working as a s o c i o l o g i s t and using them as a resource. This s i t u a t i o n gradually changed, though: Toward the end of the f i r s t half of the year the s e c r e t a r i a l load became increasingly heavy, and by Christmas the lawyers decided to h i r e the morning secretary f u l l time and to allow me to spend more time on "my own work". I continued to help out considerably by doing r e c e p t i o n i s t -s e c r e t a r i a l work during the secretary's lunch hours and days o f f and when she was "doing the books" (accounting), but my freedom to spend time with the lawyers and i n court was greatly expanded and gradually my r e l a t i o n s h i p with the lawyers s h i f t e d more to one of f r i e n d l y colleagueship, so that i t was no longer accurate to say the lawyers were happier when I was of service to them rather than vice-versa. By mid-January my opportunities to take notes and to immerse myself i n aspects of the lawyers 1 world other than the s e c r e t a r i a l end of i t were as i d e a l as i n the f i r s t observa-t i o n s i t u a t i o n . I would say that by the spring our r e l a t i o n -ship was such that we saw each other not as lawyers and s o c i o l o g i s t who were exchanging services to mutual functional advantage, but as people together i n the same work s i t u a t i o n - people who had become good friends and who were n a t u r a l l y interested i n each other's work as part of the person (not the person as part of the work, as was the case i n the beginning) - so that my study has become not something that I have "done to them" or that they have "given to me", but 19 s o m e t h i n g t h a t we c r e a t e d t o g e t h e r a s p a r t o f o u r r o u t i n e w o r k i n g l i v e s i n a way t h a t seemed n a t u r a l t o u s a l l . A l l f o u r l a w y e r s h a v e r e a d a l l my r e p o r t s o n t h e w o r k a n d d r a f t s o f t h e t h e s i s - c r i t i c i z i n g a n d s u g g e s t i n g f r e e l y -w i t h n a t u r a l i n v o l v e m e n t a nd k e e n i n t e r e s t . I i n c o r p o r a t e d t h e i r s u g g e s t i o n s i n t h e t h e s i s o n l y i n i n s t a n c e s w h e r e t h e s e s u g g e s t i o n s p e r t a i n e d t o w h a t l a w y e r s f e l t w e r e i n a c c u r a c i e s i n my i n t e r p r e t a t i o n o f t h e t e c h n i c a l l e g a l a s p e c t s o f t h e i r w o r k . S i n c e I l e f t t h e f i e l d o n a r e g u l a r b a s i s i n t h e Summer o f 1 9 7 1 , I h a v e k e p t up c o n t a c t w i t h a l l f o u r l a w y e r s . I d r o p i n a t t h e l a w o f f i c e s a f e w t i m e s a m o n t h t o "keep up o n t h e news". I a l s o s e e them s o c i a l l y o u t o f t h e l e g a l s e t t i n g - t h e f r e q u e n c y o f t h i s d e p e n d i n g o n v a g a r i e s o f o u r s e p a r a t e b u t i n t e r s e c t i n g s p h e r e s o f a c t i v i t y . THE DATA: (a) T a p e d L a w y e r - C l i e n t I n t e r v i e w s : I t was r a r e f o r a c l i e n t t o r e f u s e t h e l a w y e r p e r -m i s s i o n t o t a p e t h e i n t e r v i e w b e t w e e n h i m s e l f a n d t h e l a w y e r . T h i s h a p p e n e d i n o n l y o n e i n s t a n c e t h a t came t o my a t t e n t i o n . I was n o t p r e s e n t i n t h e l a w y e r ' s o f f i c e d u r i n g t h e i n t e r v i e w b e t w e e n l a w y e r a n d c l i e n t , a l t h o u g h i n t h e f i r s t s e t t i n g I was a b l e t o s e e a n d h e a r much o f w h a t o c c u r r e d . Whenever t r a n s c r i p t s a r e u s e d i n t h i s w o r k names, p l a c e s , d a t e s a n d 20 circumstances are changed to ensure the anonymity of the c l i e n t . The four lawyers and I f e l t that, with the per-mission of the Law Society and with the permission of the c l i e n t and with my guarantees of anonymity, due attention to e t h i c a l considerations had been heeded. In spite of the above conditions I did f e e l uneasy about the degree (however s l i g h t ) to which t h i s study may i n f r i n g e on the privacy of the c l i e n t and the p r i v i l e g e of the lawyer-client communication''". At the same time I strongly f e e l that studying lawyer-client i n t e r a c t i o n i s invaluable to an under-standing of the workings of the l e g a l system. There i s of course precedent supporting t h i s general point of view. The reader might l i k e to note that there are studies based on recordings of the spe c i a l communication between p s y c h i a t r i s t 2 and patient . Appendix A contains a tabulation of taped i n t e r -views. Not a l l the interviews that take place between lawyer and c l i e n t are a v a i l a b l e for taping, because some interviews take place outside of the lawyer's o f f i c e . C l i e n t s who do not get out on b a i l must be interviewed i n Skolnick expressed a s i m i l a r concern: "For those whose conscience i s offended by what I have reported, I might add that mine i s also troubled, e s p e c i a l l y at having l i s t e n e d i n to telephone conversations". Skolnick, J u s t i c e  Without T r i a l , p. 39. Fortunately, i n my settings, conditions were such that i t was possible to have permission of both par t i e s to the conversations that I used as data i n my study. 2 For example: Roy Turner, "Some Formal Properties of Therapy Talk", i n David Sudnow, Ed., Studies i n S o c i a l  Interaction, (New York: The Free Press, 1972), pp. 367-96. 21 j a i l where tape recorders are not allowed. Some c l i e n t s on l e g a l aid - apparently e s p e c i a l l y those charged with p r o s t i -t u t i o n ("Vag 1C 1") - do not contact the lawyer; and since they are often i n the NFA category (no fixed address), the lawyer i s unable to contact them. In such instances the lawyer w i l l interview the c l i e n t at court i n the h a l l or b a r r i s t e r s ' waiting room before the c l i e n t i s required to appear before the judge. Interaction between lawyer and c l i e n t before the case i s c a l l e d i s part of the routine even when there has been an interview i n the o f f i c e . Also unavailable for taping were exchanges over the telephone between lawyer and c l i e n t . (b) Non-taped Data; In addition to taped interviews between lawyers and t h e i r c l i e n t s , my data consists of the following: (1) Notes on the c l i e n t ' s behaviour before and a f t e r the interview i n the lawyer's o f f i c e , and i n court before, during and aft e r the formal court appearance. (2) Notes on lawyer's con-versations with me regarding the c l i e n t or his case. Notes on lawyers' conversations with each other i n the o f f i c e . Notes on lawyer's conversation and behaviour out of the o f f i c e and court se t t i n g ; for example, i n the pub or at p a r t i e s . (3) Notes on my conversations over the phone with prosecutors, personnel at the Legal Aid Society, c l i e n t s , bondsmen, witnesses, other lawyers. (4)1 was given complete 22 access to a l l materials i n the o f f i c e including o f f i c e correspondence and f i l e s on c l i e n t s . For each case that I had a taped interview, I kept notes on the f i l e contents. Lawyers often brought to my attention f i l e s that they thought would be of i n t e r e s t to me. The lawyers encouraged me to use o f f i c e materials f r e e l y and were aware of the kind of records that I made d a i l y of a c t i v i t i e s i n the o f f i c e . I kept notes on the i n t e r a c t i o n between the lawyers and the secretary and my i n t e r a c t i o n with her. I also kept notes on general o f f i c e a c t i v i t i e s . (5) When I went to court I took extensive notes on general court a c t i v i t i e s and on the interactions s p e c i f i c a l l y r e l a t e d to the case I came to hear. For some cases I was able to take notes on prosecutors interviewing witnesses on the bench before t r i a l or i n the h a l l . (6) I also followed criminal cases i n the news and I taped t e l e v i s i o n and radio interviews with people from the l e g a l community. During the period of my study there was a series of radio interviews with the d i r e c t o r of the Legal Aid Society and an extensive t e l e v i s i o n interview with the chief c i t y prosecutor. The data for any given case would include as much of the above sources of data as av a i l a b l e and possible. I met and talked to many lawyers and prosecutors during the course of my year i n the f i e l d and my continuing association with people i n the l e g a l community. Apart from t h i s I formally interviewed at length (from one hour to a whole morning or afternoon) ten lawyers. I d i d not tape 23 these interviews, but took continuous notes which I expanded immediately a f t e r the interview. One of these lawyers was over ten years " c a l l e d " , that i s he had been p r a c t i c i n g for ten years aft e r being c a l l e d tox the bar; four were i n the six to seven years " c a l l e d " category; and the remaining f i v e were i n the one to two years category. Three of these were from large downtown firms, and the others were from the general p o l i c e courts area. I d i d not use a standard questionnaire or have a written l i s t of questions that I used i n each interview. I went to the interviews with the s p e c i f i c i n t e n t i o n of t r y i n g to f i n d out as much as I could about how the lawyer conducted his interviews, about his re l a t i o n s h i p s with his c l i e n t s and his preferred techniques for getting and assessing the story, about his att i t u d e to h i s p r a c t i c e , to h i s c l i e n t s and cases, to h i s fellow lawyers, and to p o l i c e , prosecutors and judges; his a t t i t u d e to money, his career goals, h i s reasons for going into law and his use of l e i s u r e time. These were topics that I covered i n each interview, but not i n a set way. I t r i e d as much as possible to play i t by ear and l e t each interview take i t s own course. My experience i n the sett i n g made i t easy for me to r e l a t e to the lawyers I i n t e r -viewed i n a manner that fostered candid expression of opinion as one " i n s i d e r " to another. I was pleased with the general informal character of the interviews and the apparent co-operation and free expression that seemed to r e s u l t . A l l 24 ten lawyers expressed an i n t e r e s t i n my work and offered to help i n any further way they could. THE SETTING: The common t e r r i t o r y f o r a l l the young (in t h e i r f i r s t or second year of practice) criminal lawyers i n my study are the P r o v i n c i a l Courts, formerly c a l l e d the Magistrates'"'" Courts and better known as the "Lower Courts" or P o l i c e Courts where a l l the minor and some of the major criminal cases are processed. Included i n "minor" criminal 2 offences are summary conviction offences which are matters that may not go to a higher court. Examples of summary conviction are t h e f t under f i f t y d o l l a r s and vagrancy. Offences which may be dealt with either summarily or by indictment (e.g. Breaking and Entering) are f i r s t placed before the P r o v i n c i a l Courts, though the accused may "elect up", that i s , he may decide to have his case heard i n a superior court, (that i s , either i n County Court or Supreme Court). The P r o v i n c i a l Courts process t r a f f i c offences as well, so that the range may include anything from jay walking to attempted murder. In cases where one may proceed by indictment only (murder, rape, treason) the accused must be t r i e d i n the The o f f i c i a l s who hear cases i n the P r o v i n c i a l Courts are no longer r e f e r r e d to as "magistrates", but as "judges", although during the period of my f i e l d work, "magistrate" was t e c h n i c a l l y the correct term. o See Martin's Annual Criminal Code, (Toronto: Canada Law Books Limited, 197 0). 25 higher courts by Judge and Jury. The P r o v i n c i a l Courts are t e c h n i c a l l y " i n f e r i o r " courts i n that they have l i m i t e d j u r i s d i c t i o n . For example they cannot extradite, cannot issue injunctions, cannot award damages, and cannot order examination of witnesses outside the province of t h e i r j u r i s d i c t i o n . The County Courts hear more serious criminal matters where proceedings are by indictment and the accused has elected to be t r i e d by judge alone or by judge and short jury (nine members). The most serious criminal cases where one must be t r i e d by judge and jury are heard i n the Supreme Court (which i s not a Court of Appeal). A l l divorce cases are heard i n Supreme Court as are a l l corporate cases except mechanics l i e n cases.''" There i s a separate Court of Appeal where appeals from a l l the other courts are heard. (Appeals from the Court of Appeal would be heard i n the Supreme Court of Canada i n Ottawa.) The P r o v i n c i a l Courts are situated i n the East End of 2 the C i t y about ten minutes by bus from the c e n t r a l downtown business area. They are housed i n the same bui l d i n g as the p o l i c e departments, the c i t y j a i l , and the c i t y prosecutor's Mechanics l i e n s are claims by unpaid suppliers and workmen engaged i n construction. The unpaid amount i f proven constitutes a charge against the lands and buildings concerned. 2 This p a r t i c u l a r s e t t l i n g i s also described i n an ethno-graphy of a drug culture i n the same c i t y : Kenneth Stoddart, "Drug Transactions: The S o c i a l Organization of a Deviant A c t i v i t y " , (Unpublished M.A. Thesis, The University of B r i t i s h Columbia, 1969), Chapter Two. 26 o f f i c e . The close physical proximity of the p o l i c e , the prosecutors and the P r o v i n c i a l Courts makes for close l i a i s o n between p o l i c e and prosecutors, and f o r the common complaint by defense lawyers that "The lower courts are ju s t another arm of the p o l i c e force". The general area i n which the P r o v i n c i a l Courts are located i s the l e a s t "respectable" part of the c i t y , that i s i t i s older and more 'run down", spotted with disreputable beer parlours and cafes where the t r a f f i c i n i l l e g a l "hard" drugs (mainly heroin) i s centred. This part of the c i t y includes "skid row" where the disreputable poor"'" (old "bums") hang out together on the streetsides or s i t on benches drinking "bay rum" or cheap wine. In t h i s d i s t r i c t one can always spot passersby who appear to be strongly under the influence of alcohol or drugs; i t i s a commonplace to see people "hauled o f f " by the p o l i c e and to hear the squeal of ambulances. The c i t y ' s concentration of Chinese ("China Town") i s i n t h i s area; a Japanese " d i s t r i c t " i s close by and one notices more native Indians on the stre e t i n t h i s area than i n other parts of the c i t y . This i s the "high crime" zone of the c i t y and t h i s i s where many of the c l i e n t s i n t h i s study l i v e or "hang out" - and get caught. This i s where the unemployed c o l l e c t For an i n t e r e s t i n g analysis of t h i s "type" of poverty see: David Matza, "The Disreputable Poor" i n Reinhard Bendix and Seymour M. Lipset, Eds., Class, Status and Power, 2nd ed., (New York: The Free Press, 1966), pp. 289-302. 27 together i n the beer parlours and s t r i p j o i n t s . This i s where hard drugs are easy to get, where pr o s t i t u t e s are the l e a s t expensive and where the semi-underworld f e e l s at home. This i s the area of "bar room brawls" and str e e t muggings and constant p o l i c e i n v i g i l a t i o n . I t i s i n t h i s area that lawyers who r e g u l a r l y do "police court work" (that i s , handle minor criminal offences) are l i k e l y to have t h e i r o f f i c e s . There are a few lawyers doing criminal work who are i n downtown o f f i c e s or scattered i n other areas of the c i t y ; these lawyers are estimated to constitute about f i v e percent of those doing criminal work. Lawyers who locate t h e i r o f f i c e s i n the p o l i c e court area are known as the "East End Bar" which i n members' usage has a s l i g h t l y derogatory connotation r e l a t e d to the general opinion of other lawyers that work on minor criminal cases usually brings i n comparatively i n f e r i o r income and le s s prestige. If there i s a sense i n which one could say there i s a criminal law "community", t h i s i s where i t e x i s t s . I t i s i n the p o l i c e courts that these lawyers "run i n t o " each other and go out together f o r lunch or "a few beer". Before characterizing the o f f i c e s and the type of practice of the four lawyers who are the focus of t h i s study, I want to set out as a background the p r a c t i c e of law i n general i n t h i s c i t y . I t i s a Canadian City with a population of about three-quarters of a m i l l i o n people. There are 28 approximately 1,280 p r a c t i s i n g lawyers (not including judges) i n t h i s c i t y . The Federal Department of J u s t i c e which handles offences under the Narcotics Act, and the O f f i c e of the C i t y Prosecutor (which deals with offences put before the lower courts) each have a s t a f f of ten or twelve prosecu-t o r s . The Attorney General's O f f i c e i s staffed with two lawyers. Business corporations employ about twenty-five lawyers f u l l time. The remaining lawyers are i n private p r a c t i c e . (Prosecutors for cases i n the higher courts (County Court, Supreme Court, Court of Appeal) are hired from priva t e firms per t r i a l or per assize.^") Lawyers separate out three main categories of prac-t i c e : (1) Lawyers doing general c i v i l law (approximately 700 to 800 lawyers). This includes probate (handling estates), conveyancing, divorce, personal i n j u r y and ser-vices to small businesses. (2) Lawyers doing "commercial" law, or "corporation lawyers" (approximately 3 00 or 400). This includes l e g a l work for larger business corporations, work on insurance cases and commercial and labour l i t i g a t i o n . (3) Lawyers doing predominantly c r i m i n a l , divorce and motor vehicle accident work (approximately 100). There are no exact s t a t i s t i c s a v a i l a b l e on how many lawyers f a l l into the above categories. The Law Society has a l i s t of lawyers who are p r a c t i c i n g law but not of the A group of cri m i n a l t r i a l s before a given Supreme Court judge and jury l a s t i n g up to two months. 29 kind of practice i n which they are engaged. There i s a criminal law subsection of the Canadian Bar Association, but membership i n t h i s subcommittee i s probably not a good index to how many are a c t u a l l y engaged i n criminal p r a c t i c e because of overlapping categories and the lack of a p r a c t i -c a l d e f i n i t i o n of the criminal lawyer. One could define a criminal lawyer as someone who does d a i l y work i n cri m i n a l matters, or as someone who does say f i v e t r i a l s a month, or someone who receives a c e r t a i n portion of h i s income from criminal work, etc. Members do not have a common-in-use d e f i n i t i o n of a "criminal lawyer", although they w i l l c l e a r l y d i s t i n g u i s h lawyers who only occasionally take a criminal case as not being i n the criminal lawyer category, and some-one who does exclu s i v e l y criminal work as being d e f i n i t e l y i n that category, but the categories i n between are not distinguished c l e a r l y . There are very few lawyers who do only criminal work. The Director of the Legal Aid Society estimates that there are only three or four lawyers who do exclusively criminal work, though t h i s f i g u r e i s dismissed by some other lawyers as being a gross under-estimation. The more senior lawyers that I interviewed estimated that there were about t h i r t y lawyers who do mostly criminal work (seventy-five percent or more of t h e i r cases). Most lawyers who do c r i m i -nal work also r e l y on divorce and accident cases. 30 The Legal Aid Society has 150 lawyers on t h e i r l i s t requesting criminal cases. According to Legal Aid personnel about eighty of these lawyers r e l y on criminal cases assigned to them by Legal Aid as t h e i r main source of income. The four lawyers i n t h i s study f e l l i n t o t h i s category during my year i n the f i e l d . The Legal Aid Society assigns about s i x hundred cases a month and paid these lawyers $750,000 out of government fees''" i n the year 1971 - 72, each lawyer being paid t h i r t y d o l l a r s per day per case. Lawyers requesting the maximum number of Legal Aid cases are usually assigned f i v e or s ix cases a month, though my lawyers received more than t h i s during the year that I was i n the f i e l d they aver-aged about ten cases each per month. During my stay i n the f i e l d the supply of Legal Aid cases appeared to be meeting the demand, but Legal Aid o f f i c i a l s estimate that the s i t u a -t i o n w i l l change within the next f i v e years so that the demand w i l l out-distance the supply. Lawyers doing c r i m i n a l , divorce and motor v e h i c l e accident work are t y p i c a l l y on t h e i r own or i n a two-man firm. There are no large firms doing mainly criminal work. A firm of three or four lawyers doing mainly cri m i n a l work i s unusual. The Law Society gives the Legal Aid Society $100,00.00 a year to cover t h e i r administrative operating expenses. This sum i s taken out of the i n t e r e s t from lawyers' t r u s t accounts. Trust funds are funds held by a lawyer on behalf of a c l i e n t for a s p e c i f i c purpose; for example, to complete the purchase of a house or business, discharge a mortgage, pay estate taxes, s e t t l e a law s u i t , etc. When a c l i e n t i n a criminal or other matter pays the lawyer's fees before t r i a l , that money i s put i n a t r u s t account u n t i l the matter i s completed (the t r i a l ended) when the funds are transferred to the lawyer's general account. 31 Large law firms (five or more lawyers) consist of s p e c i a l i s t s i n the d i f f e r e n t v a r i e t i e s of c i v i l law. Occasionally there w i l l be one lawyer doing mainly cri m i n a l cases i n a large firm, but t h i s i s not the r u l e . A large firm usu-a l l y consists of s p e c i a l i s t s as follows: (a) The corporate department. Lawyers doing commercial law usually bring i n from one h a l f to two t h i r d s of the income of a large law firm. They s p e c i a l i z e i n financing, i n bankruptcy and i n tax law. (b) Lawyers who s p e c i a l i z e i n conveyance work, (c) Lawyers who do mainly probate work ( s e t t l i n g and ser-v i c i n g large estates). (d) B a r r i s t e r s who do courtroom work, l i t i g a t i o n for insurance firms, commercial l i t i g a t i o n , and labour r e l a t i o n s . A large law firm can be seen as a business uni t i n that d i f f e r e n t s p e c i a l i s t s often consult on d i f f e r e n t aspects of the same problem for a given c l i e n t . The same cli e n t * can have d i f f e r e n t lawyers i n the same firm deal with d i f f e r e n t problems; i n t h i s sense large law firms see themselves as providing a complete service. Criminal cases on the other hand r a r e l y involve team work. On a major criminal case such as a murder t r i a l the defense may consist of one senior lawyer and one junior; but for the usual minor cri m i n a l case, i t i s a one-man job. "Criminal" lawyers who go into partner-ship do so mainly to share the expenses of an o f f i c e and a secretary. They may consult each other on cases, but t h i s i s j u s t as l i k e l y to be out of f r i e n d l i n e s s as out of necessity. Just as common as partnerships are loose "associations" (of up to four lawyers) where lawyers s p e c i a l i z i n g i n c r i m i n a l , matrimonial and accident cases share a suite of o f f i c e s and secretary pool, consult each other on cases and re f e r c l i e n t s to each other i n instances where a case does not f i t i n t o the timetable or i s not the p a r t i c u l a r lawyer's s p e c i a l t y , but do not enter into a formal partnership by c a l l i n g the firm by a l l t h e i r names and by being responsible for each other's l i a b i l i t i e s and by having some arrangement f o r the sharing of p r o f i t s . The f i r s t lawyer I worked with was at the time p r a c t i c i n g on his own i n a respectably "run-down" two-room o f f i c e i n an old seven-storied building across from the p o l i c e s t a t i o n . This b u i l d i n g houses about twenty lawyers. His o f f i c e was without embellishment of any kind : furnished He i s now i n partnership with another lawyer who i s also doing mainly cr i m i n a l , divorce and accident cases. They are i n association with a t h i r d more senior lawyer i n that the three lawyers share a suite of o f f i c e s , and two secre-t a r i e s ; and consult and re f e r each other cases. 2 When I f i r s t met him, t h i s lawyer described his s i t u a -t i o n as follows: "Dealing with bums and robbers! Oh h e l l , j u s t t r y i n g to keep them from doing too much time. Suits me f i n e here; sure i s n ' t any h e l l , but my c l i e n t s don't want to be bumping into broadloom. They l i k e i t here, I don't charge what I should, but Ch r i s t how can you. I know what i t ' s l i k e to be up against i t . Besides my overhead i s pretty low. I'm on my own - been on my own since May. Figure I've gotta get some experience and t h i s i s the best way to do i t . After I've been on my own for a while, I ' l l go i n with some other guys. There's no way I'd have been happy i n a big downtown firm saying 'yes' to a l l the senior partners. So here I am!" 33 only with desk and chairs and wall book-shelves. It was uncarpeted, unpretentious and completely p l a i n (no pictures on the wall, no decorations of any s o r t ) . The three lawyers that I next worked with chose a suite of o f f i c e s i n a markedly d i f f e r e n t environment. Bor-dering on the p o l i c e court area of the c i t y i s a sort of " v i l l a g e " within the c i t y , s i m i l a r to Toronto's Y o r k v i l l e area, or San Francisco's Union Street area or New York's Greenwich V i l l a g e . I t i s part of the oldest section of the c i t y imaginatively renovated and made fashionable. I t consists of boutiques for clothes, a r t s and c r a f t s and antiques and e s o t e r i a , of l i t t l e restaurants and a sc a t t e r i n g of o f f i c e s for young businessmen, a r c h i t e c t s and lawyers. The three partners located themselves i n a b r i g h t l y fashionable suite of o f f i c e s i n the upper l e v e l of an o l d warehouse - completely transformed with carpeting, pop a r t hangings, and glossy new colours. A l l four lawyers r e l i e d heavily on Legal Aid cases, involving almost exclu s i v e l y monor crim i n a l charges. They were s a t i s f i e d with the volume of cases coming to them from Legal Aid and also with t h e i r usual monthly income (approximately $800.00 per month) during my year i n the f i e l d . They are now earning about $1,100.00 per month from c r i m i n a l , divorce and accident cases, but s t i l l r e l y heavily on cases from Legal Aid (about seventy-f i v e percent of t h e i r income). 34 A l l four lawyers did t h e i r a r t i c l e s i n the same large downtown firm. A l l except one of the three partners were i n the same graduating c l a s s . The other partner gra-duated a year previously from an Eastern Law School and was a p r a c t i c i n g lawyer i n the same firm where the other three lawyers were doing t h e i r a r t i c l e s during the same year. The three partners were i n the age category of twenty-five to twenty-eight years. The fourth lawyer was approximately t h i r t y - t h r e e years of age during the period of my f i e l d work. For the lawyers i n my study, the bulk of p r e - t r i a l preparation''" i s based on the interview with the c l i e n t , and interviewing was c l e a r l y the most s i g n i f i c a n t part of 2 preparation for t r i a l , although, as we s h a l l see i n the next chapter, the interview i s only one phase i n the lawyer's r o l e i n society's processing of offenders from a r r e s t through the courts to prison, probation or freedom. (Other phases of the lawyer's work are arranging b a i l , researching the law, bargaining with the prosecutor, going to t r i a l or handling the g u i l t y plea, speaking to sentence, appealing the case, etc.) "The successful lawyer must be able to a n t i c i p a t e most of his problems long before he i s c a l l e d upon for t h e i r solutions...preparation for t r i a l s must be made i n the o f f i c e . " Clarence Morris, How Lawyers Think, (Ann Arbour: Harvard University Press, University Microfilms, Inc., 1937), pp. 27-28. 2 This was also the case with Sudnow's Public Defenders: "The bulk of preparation for t r i a l (either t r i a l s or non-t r i a l matters) occurs at the f i r s t interview." Sudnow, "Normal Crimes, S o c i o l o g i c a l Features of the Penal Code i n A Public Defender O f f i c e " , p. 265. 35 When someone hires a lawyer to "handle his case" for him, he becomes a " c l i e n t " . As a matter of professional e t h i c s , the lawyer i s required to "take i n s t r u c t i o n s from his c l i e n t " , so that, i n p r i n c i p l e , "handling the case" does not mean that the lawyer makes the decisions on what to do with the case independently, but must consult with the c l i e n t , and s p e c i f i c a l l y must bide by the c l i e n t ' s d e c i s i o n i n the matter of the plea (that i s , whether to plead g u i l t y or not g u i l t y , which e n t a i l s either to be sentenced without t r i a l or to go to t r i a l to defend the matter). In order to d i s -cuss these matters with the c l i e n t , the lawyer "has him i n for an interview". The interview i s an important phase i n the lawyer's preparation of the case, and usually the one i n which these major decisions are made: (a) whether or not to defend the case (that i s , to plead g u i l t y or not) and (b) i f the case i s to be defended, whether or not the c l i e n t w i l l take the stand. In both instances ((a) and (b)), "taking the c l i e n t ' s i n s t r u c t i o n s " comes to mean i n pr a c t i c e that the lawyer makes the decisions on the basis of h i s expertise, and the c l i e n t agrees with the lawyer's dec i s i o n . The following two exam-ples show how the c l i e n t complies with the lawyer's dec i s i o n . In the f i r s t example the lawyer makes a dec i s i o n to plead g u i l t y ; i n the second example the lawyer decides that the c l i e n t may not take the stand to speak i n defense of himself, and the c l i e n t makes no objection. 36 Example 1. Lawyer C : Okay, guess that's a l l the information I need. Now what I'm going to do i s uh..find out from the p o l i c e what t h e i r story i s - or from the prosecutor what the p o l i c e are going to be saying. And i f there's any loopholes i n - i n t h e i r evidence, we may be able to go ahead for t r i a l . If uh, i f they have a r e a l s o l i d case - i n other words i t looks l i k e -pretty obvious - I t looks from what you've t o l d me, i t looks l i k e they've got a pretty good good case against you f o r possession - um, I think, uh - there's not much point putting i t to a t r i a l -even though you're e n t i t l e d to i t . Cause i t , uh, i t may only be a waste of time to do i t , uh, when they've got you that cold - r i g h t on you, you know sorta thing. And that makes i t a b i t tough. I t ' s almost - there's almost no point i n f i g h t i n g i t r e a l l y . I think, uh, the worst sorta thing you're looking at -well i t ' s - i t ' s not l i g h t , but i t ' s , i t ' s not too heavy. You know, y o u ' l l be looking at a hundred and f i f t y d o l l a r f i n e - which i s r e a l l y - t h i s i s what every - t h i s i s standard r i g h t across the board now for possession, f i r s t offence. C l i e n t ; Is that r i g h t , eh? L: Yeah...well... [laughs] . C: I t sounds l i k e . . . L: [Laughs] You j o i n the l i s t i n uh - i n the [name of r a d i c a l news-paper] every week! For transcribed conversations used i n the body of t h i s work, speech by lawyers w i l l be introduced by the l e t t e r L (lawyer), speech by c l i e n t s w i l l be introduced by the l e t t e r C ( c l i e n t ) , speech by myself w i l l be introduced by the l e t t e r P (participant-observer), speech by others present i n the lawyer-client i n t e r a c t i o n w i l l be introduced by the l e t t e r 0 (other). I w i l l r e f e r to the lawyer i n my f i r s t s e t t i n g as Lawyer A and to the three lawyers i n my second s e t t i n g as Lawyers B, C and D. Other lawyers w i l l be i d e n t i f i e d by successive l e t t e r s of the alphabet i n the order of t h e i r "appearance" i n t h i s work. Prosecutors are i d e n t i f i e d separ-ately by the l e t t e r s of the alphabet s t a r t i n g with A. 37 Right.' [Laughs] ...So, urn, urn - I ' l l check t h e i r story and see what they're going to be saying - i f - as I say, i f there's any flaws, well, uh, we'll go to t r i a l on i t . . . i f , i f uh...if i t looks l i k e they've got a pretty good case, we should j u s t plead to i t and get i t a l l over. C: Right. Example 2. Lawyer D; We have no a l t e r n a t i v e story to give the p o l i c e because we know what happened. C: Yeah. L: So...there's no point i n putting you i n jeopardy...by putting you on the stand. C: Yeah. The lawyer takes vaiours factors into account i n making the p r e - t r i a l decisions, including what i s known i n the l e g a l community as "the story". The story i s what the c l i e n t t e l l s the lawyer (or the p o l i c e or the court) about what happened i n the events that lead to his arrest. In the interviews which I had taped, the story i s the concrete focus of interchanges between lawyer and c l i e n t . The main work of the interview i s i n e l i c i t i n g and assessing the story, On the basis of my general experience i n the l e g a l community at large I would say that the practices described i n t h i s thesis are not peculiar to the four lawyers with whom I worked i n t e n s i v e l y , but constitute routine organiza-t i o n a l practices of most of the lawyers i n that s e t t i n g who are engaged i n minor criminal and divorce work with mainly 38 l e g a l aid c l i e n t e l e ; however, I am not concerned with " g e n e r a l i z a b i l i t y " i n the sense of making claims from a "representative" sample to a larger population since t h i s study i s based not on survey research techniques but on ethnographic f i e l d work. My concern i s to document with some ethnographic validity"'" the ways i n which the lawyers that I observed conducted t h e i r p r a c t i c e s . I hope to give an in-depth treatment "from the i n s i d e " of how these lawyers r o u t i n e l y handled the business of e l i c i t i n g and assessing s t o r i e s i n interviewing c l i e n t s i n order to assemble procedures and strategies i n preparation for court. 2 Just as Sudnow used the h o s p i t a l context as set i n two Sudnow expresses the character and value of t h i s kind of research o r i e n t a t i o n as i t applies to the medical setting i n his introduction to h i s study of death "as a procedurally conceived matter": "...I have sought to r e t a i n a general ethnographic stance i n t h i s discussion, keeping uppermost the concern to provide a documentation of facts of h o s p i t a l l i f e and death hitherto either unseen or unnoticed by out-s i d e r s . I f e e l i t a shortcoming of research on h o s p i t a l s o c i a l organization that, with very few exceptions, no d e t a i l e d accounting of patient care practices i s a v a i l a b l e . Whatever work i s a v a i l a b l e on 'death i n the h o s p i t a l ' i s generally based on f i e l d interviews, rather removed from actual instances of dying, r e l y i n g heavily on the use of i n -formants who r e t r o s p e c t i v e l y report upon t h e i r attitudes and happenings at the time of death. Whatever contribution t h i s  study might make as an addition to that research w i l l hopefully  derive from the f a c t that the information i t contains was  gained f i r s t h a n d . " ( I t a l i c s mine.) Sudnow, Passing On, The S o c i a l Organization of Dying, p. 10. 2 Ibid. 39 hospitals to work with an analysis of death and dying as constituted by the d a i l y practices of h o s p i t a l personnel with whom he worked c l o s e l y ; so too, I am using the l e g a l context as set i n two law firms to work with an analysis of the d a i l y practices of lawyers i n interviewing c l i e n t s . Before I begin a d e s c r i p t i o n of the l e g a l context of t h i s study i n Chapter Two i n a n t i c i p a t i o n of the analysis of c r i m i n a l s t o r i e s i n Chapter Three and divorce s t o r i e s i n Chapter Four - l e t me caution the reader and myself of the l i m i t a t i o n s of small scale ethnographies of t h i s type: /An ethnographic report of t h i s kind i s subject to several possible sources of serious error. My pers-pective i n the world of medical a f f a i r s i s , i n the f i n a l a n a l y s i s , very much that of an outsider. While over a year was spent i n considerable d a i l y contact with physicians, nurses and patients, and while I managed p h y s i c a l l y to get close to actual settings of medical and nursing p r a c t i c e , what I selected to report upon and, more importantly the ways i n which I came to see h o s p i t a l events, are c l e a r l y a product of my own i n t e r e s t s and biases. Being p r a c t i c a l l y involved i n the world of medicine and nursing places a perspective around events which no outsider can hope f u l l y to achieve, short of becoming a physician or nurse himself. I can claim only a l i m i t e d i n s i g h t into the cognitive l i f e of the medical world, and while some of the considerations which I f e e l govern work i n that world have been stated, there i s much I f e e l remains inaccessible to the ethnographer.1 David Sudnow, Passing On, The S o c i a l Organization of  Dying, p. 176. CHAPTER II LAWYER-CLIENT INTERVIEWS IN THE CONTEXT OF THE PROCESSING OF OFFENDERS I INTRODUCTION; Once someone i s charged with a crime he i s "put through the system". His encounters with a defense lawyer are set i n the context of t h i s process and mark one phase i n i t ; a phase that i s linked to the preceding and following steps i n the chain of established procedures. What happens to the accused i n the defense lawyer's o f f i c e depends on what has happened to him up to t h i s point and on what can be expected to happen to him af t e r t h i s point. In other words, i n "handling the case", the defense lawyer works from what he knows of the r e s u l t s of the accused's encounters with the p o l i c e ; and i n doing t h i s , he orients to what he f e e l s can be expected to happen i n court. In order to i n t e r p r e t what happens i n the lawyer-c l i e n t interview, we must therefore have a working know-ledge of relevant considerations a r i s i n g from the usual events that precede and follow the interview - from the perspectives not only of the lawyer and the c l i e n t , but 40 41 also of the p o l i c e , prosecutor, and judge. I w i l l discuss the events that p r e c i p i t a t e the accused's encounter with the lawyer and the events that t y p i c a l l y follow t h i s encounter from the perspective of how considerations a r i s i n g from these events may or may not influence what happens i n the interview. Skolnick makes a p a r a l l e l point i n his ethnographic study of the p o l i c e : "Although t h i s book i s s p e c i f i c a l l y about the p o l i c e , i t i s also about the other o f f i c i a l s ; the defense attorney, the prosecutor, the judge, the pro-bation o f f i c e r , because they too are woven into the system of J u s t i c e Without T r i a l . A methodological conclusion of the present work i s that the S o c i o l o g i s t gains a more ade-quate understanding of the p o l i c e by examining the work of the other o f f i c i a l s i n the system. For example to e s t i -mate the extent of i l l e g a l p o l i c e a c t i v i t i e s of various kinds, p o l i c e reports alone cannot be r e l i e d on. A l l p o l i c e have enemies and the natural enemies of the p o l i c e -man are the defense attorney and his c l i e n t . Indeed an important reason for studying the Criminal Law Community i s that each segment tends to be more c r i t i c a l of the others than of i t s e l f . " J u s t i c e Without T r i a l , p. 28. In a recent study of prosecutors i n Toronto, Grosman makes t h i s observation: " S i m i l a r l y , the prosecutor does not act according to a set of r u l e s , but rather i n a manner conditioned by his environment and the actions of the other p a r t i c i p a n t s i n the prosecuting environment - the p o l i c e , the defense lawyers, and the j u d i c i a r y . " Grosman, The  Prosecutor, p. 67. I I PRECEDING EVENTS: (A) POLICE ENCOUNTER: Not a l l i n t e r v i e w s take p l a c e i n the lawyer's o f f i c e . Some take p l a c e i n j a i l , or i n the h a l l s and w a i t i n g rooms i n c o u r t . Both lawyer and c l i e n t are l e s s l i k e l y to f e e l as a t ease exchanging i n f o r m a t i o n i n j a i l than i n the office'''. Whether or not the i n t e r v i e w takes p l a c e i n j a i l depends on the c o n d i t i o n s of the c r i m i n a l c h a rge, the a r r e s t and b a i l . The o r i g i n a l encounter between p o l i c e and 2 suspect can r e s u l t i n being charged by a r r e s t or by summons, or by an Undertaking to Appear (UTA) depending on the l e g a l r e s t r i c t i o n s r e g a r d i n g the type of o f f e n c e as s e t out i n the C r i m i n a l Code, and on p o l i c e d i s c r e t i o n (where these r e s t r i c -, t i o n s a l l o w such d i s c r e t i o n ) . When the a l l e g e d o f f e n d e r i s handled v i a summons o r UTA i n a case where the charge i s such t h a t the s t a t u t e s a l l o w the p o l i c e t o proceed by e i t h e r a r r e s t or summons (or UTA), the " a r r e s t i n g " o f f i c e r i s Lawyer A claimed t h a t the j a i l s e t t i n g made l i t t l e d i f f e r e n c e t o what he s a i d or how he conducted h i s i n t e r -v i e w s , but t h a t c l i e n t s are v e r y r e l u c t a n t t o "say a n y t h i n g " i n j a i l f o r f e a r o f "bugging" by p o l i c e . 2 Being charged takes p l a c e t e c h n i c a l l y when the " a r r e s t -i n g " o f f i c e r swears an i n f o r m a t i o n , b e f o r e a J u s t i c e of the Peace i n an o f f i c e i n the p o l i c e b u i l d i n g . The accused i s not p r e s e n t . 43 showing c o n f i d e n c e t h a t the accused w i l l appear of h i s own v o l i t i o n i n c o u r t when r e q u i r e d . In such i n s t a n c e s , the accused i s not taken i n t o custody and r e c e i v e s n o t i c e i n the m a i l or by o f f i c i a l p o l i c e s e r v i c e of when he i s to appear i n c o u r t . When charged by " a r r e s t " , the accused i s "booked" a t the p o l i c e s t a t i o n and goes i n t o custody. I f the accused i s unable t o meet the c o n d i t i o n s o f the arranged b a i l , o r i f he i s not allowed b a i l , he remains i n custody and h i s lawyer has l i t t l e c h o i c e but t o i n t e r v i e w him th e r e i n j a i l or i n c o u r t b e f o r e t r i a l . The lawyer w i l l i n t e r v i e w h i s c l i e n t i n c o u r t (t h a t i s , i n a hallway o r i n the B a r r i s t e r s ' W a i t i n g Room) i n i n s t a n c e s where the lawyer i s unable t o f i n d time t o go to the j a i l , or i s appointed too l a t e too l a t e t o do so. In some i n s t a n c e s where the accused was not 2 taken i n t o custody, or i s out on h i s "own r e c o g n i z a n c e " , or on b a i l , the i n t e r v i e w may s t i l l take p l a c e i n c o u r t r a t h e r than i n the lawyer's o f f i c e . T h i s happens when f o r i n s t a n c e the c l i e n t has "no f i x e d address" ( p a r t i c u l a r l y common i n "Vag C" ( p r o s t i t u t i o n ) cases) and the lawyer i s appointed by The d e t a i l s of procedure i n t h i s , area are q u i t e c o m p l i -c a t e d and I have pr e s e n t e d i t perhaps too simply here. Readers i n t e r e s t e d i n the t e c h n i c a l i t i e s o f procedure i n Canada should c o n s u l t M a r t i n L. F r i e d l a n d , D e t e n t i o n Before  T r i a l , (Toronto: U n i v e r s i t y of Toronto P r e s s , 1965). 2 T h i s means t h a t he i s not r e q u i r e d to put up b a i l , but o n l y t o s i g n an u n d e r t a k i n g t o appear i n c o u r t on the r e q u i r e d d ate. In the l e g a l community j a r g o n , t h i s i s known as "being out on your O.R.". 44 Legal Aid and i s unable to contact his c l i e n t p r i o r to the court appearance. In t h i s event lawyer and c l i e n t meet for the f i r s t time i n court. If they decide to go to t r i a l , there w i l l be time to arrange an i n - o f f i c e interview. If they decide to plead g u i l t y at that court appearance, there w i l l not be an i n - o f f i c e interview. We can see that there i s sometimes some s e l e c t i o n i n the c l i e n t s who come i n for an i n - o f f i c e interview. A l l of the interviews that were taped for me took place i n the lawyer's o f f i c e , with the exception of two interviews which were taped i n the B a r r i s t e r s ' Waiting Room p r i o r to appear-ance i n court. I t would be hard to judge whether or not lawyers attend to considerations a r i s i n g from whether or not the c l i e n t i s i n custody or i s able to arrange or meet b a i l i n making some of the decisions that must be made i n the interview; however, there may be instances where these con-siderations may have some relevance: for instance, someone who i s kept i n custody and who cannot arrange or meet condi-tions of b a i l may be seen as harder to speak to sentence^" for than someone who i s out on h i s own recognizance; and hence, the probable consequences of the g u i l t y plea are l i k e l y to When his c l i e n t has been found g u i l t y , or has plead g u i l t y , the lawyer may "speak to sentence" for him. In speaking to sentence, the lawyer puts f o r t h reasons why the judge should be len i e n t i n sentencing his c l i e n t . 45 be seen as more severe, and hence the o p t i o n of the g u i l t y p l e a l e s s a d v i s a b l e . However, how a lawyer sees h i s c l i e n t i n terms of the p o s s i b i l i t i e s f o r speaking to sen- . tence depends a l s o on a number of o t h e r f a c t o r s such as the nature of the charge, the circumstances of the crime, the c l i e n t ' s r e c o r d , h i s job s i t u a t i o n , and so f o r t h . Once a person has been charged w i t h a crime, he w i l l be encouraged by the p o l i c e or by the judge i n h i s f i r s t c o u r t appearance to get a lawyer i f he does not a l r e a d y have one. Most of the c l i e n t s i n t h i s study were a s s i g n e d a lawyer through L e g a l A i d . (B) LAWYER AND CLIENT CONTACT; L e g a l A i d ; The L e g a l A i d S o c i e t y w i l l a p p o i n t and pay ( v i a the government) a lawyer to defend an accused who makes a p p l i -c a t i o n f o r l e g a l a i d and who meets the requirements f o r e l i g i b i l i t y ^ " . E l i g i b i l i t y b a s i c a l l y i n v o l v e s not b e i n g The L e g a l A i d S o c i e t y i n t h i s p a r t i c u l a r p r o v i n c e screens a p p l i c a n t s f o r f i n a n c i a l e l i g i b i l i t y . The lawyer who takes the case i s a l s o expected to check to see t h a t the c l i e n t i s i n f a c t e l i g i b l e . The c r i t e r i a f o r e l i g i b i l i t y are s t a t e d as f o l l o w s i n The L e g a l A i d Handbook: "The f i r s t c o n s i d e r a t i o n i s the f i n a n c i a l p o s i t i o n of the a p p l i c a n t . No standard has been l a i d down as i t i s p r e f e r a b l e t o d e a l w i t h each case on i t s own m e r i t s . A person i s q u a l i f i e d f o r f r e e L e g a l A i d i f r e q u i r i n g him to pay l e g a l f e e s would impair h i s a b i l i t y t o f u r n i s h h i m s e l f and h i s f a m i l y w i t h the e s s e n t i a l s n ecessary to keep them d e c e n t l y f e d , c l o t h e d , s h e l t e r e d and l i v i n g t o g e t h e r as a f a m i l y , or where he i s a t the moment without funds and r e q u i r e s immediate l e g a l a s s i s t -46 ance for the preservation of his l e g a l r i g h t s . " E l i g i b i l i t y i s further explained i n the words of the Director of Legal Aid as interviewed on CBC A.M. Radio on A p r i l 4, 1971: Director: "...The function of Legal Aid i s to interview people and uh - determine whether or not they are e l i g i b l e for Legal Aid from a f i n a n c i a l standpoint and whether or not i t ' s the type of case that we cover and i f so - urn, we t r y and advise them or resolve t h e i r problems on the spot. If not - i f we can't resolve i t on the spot, we w i l l r e f e r i t to a lawyer i n private pr a c t i c e who takes the case on and acts on that matter l i k e he does on any other matter." Interviewer: "So a person doesn't have to be out on the street and d e s t i t u t e before they can uh - apply for Legal Aid?" Director: "No the standard that we use i s uh, i f a person i s - would - i f the necessity to pay a l e g a l fee would deprive the person of the a b i l i t y to, uh, maintain himself and his family with - decently clothed and fed and housed, then we would, uh -provide l e g a l service. I ' l l j u s t draw a couple of examples for you to give you some idea of how we draw the t e s t : If we have a young fellow who l i v e s at home, makes $400.00 a month - urn, no debts, no r e s p o n s i b i l i t i e s - and he's charged with possession of marijuana, he probably wouldn't get Legal Aid. However, i f you get a man who's got si x c h i l d r e n ; he's up to his ears i n debt; and he's got, uh - a wife who's sick and so on : He makes $400.00 a month and uh - he was charged with some serious i n d i c t a b l e offence, he probably would get Legal Aid i n s p i t e of the f a c t that t h e i r incomes are the same. So what we t r y and do i s an i n d i v i d u a l t e s t on each person. Another fac-tor that we consider i s the - the type of offence; that i s , you may be able to get a lawyer to defend you on, oh, a common assault charge for $200.00 to $250.00, but you wouldn't be able to get a lawyer to do the defense of a murder charge for the same pr i c e . I t might cost you $2,000.00 or $3,000.00; so i t depends on the type of offence and the c i r -cumstances of the i n d i v i d u a l person. 47 "able to a f f o r d " the services of a lawyer, so that the usual c l i e n t s i n these cases are probably much l i k e the c l i e n t s i n Sudnow's study"'" with respect to s o c i a l back-ground and economic c h a r a c t e r i s t i c s ; that i s , they are poor or "broke", unemployed and on welfare, and from the more underprivileged sections of society and are "up on" charges a r i s i n g out of attempts to improve t h e i r material circumstances ( v i z : robbery, t h e f t , obtaining goods by f a l s e pretences, breaking and entering, possession of stolen property, possession of housebreaking instruments) or charges r e l a t e d to expressive habits of "deviant" sub— 2 cultures (e.g., possession of the various i l l e g a l drugs) . Legal Aid " r e c r u i t s " c l i e n t s p a r t l y v i a the Salvation Army who give a p p l i c a t i o n forms to accused persons i n j a i l and i n the courts when they f i r s t appear. Any person charged with a crime may of course contact the Legal Aid Society independently. If the accused passes the e l i g i b i l i t y screening of the Legal Aid Society, a lawyer i s appointed by Legal Aid to act f o r him. Sudnow, "Normal Crimes, S o c i o l o g i c a l Features of the Penal Code i n a Public Defender O f f i c e " . 2 Legal Aid i s not usually granted for Summary Convic-t i o n Offences (as d i s t i n c t from Indictable Offences) (see Martin's Annual Criminal Code, (Toronto: Canada Law Books Ltd., 1970) for the d e f i n i t i o n of t h i s d i s t i n c t i o n "unless there i s a r e a l p o s s i b i l i t y that the applicant, upon con-v i c t i o n , would be sentenced to a term of imprisonment", (Legal Aid i n B r i t i s h Columbia, p. 3). Examples of Summary Conviction matters are: Public Mischief, Vagrancy (includes Begging, P r o s t i t u t i o n , e t c . ) . Legal Aid i s also not p r o v i -ded for most c i v i l matters. 48 The Legal Aid Society keeps a l i s t of lawyers requesting Legal Aid cases and t r i e s to apportion them to requesting lawyers as equitably as t h e i r own i n t e r n a l organizational problems and the a v a i l a b i l i t y of requestors permits^; but there i s a section at the bottom of the 2 Legal Aid Application Form for lawyer preference, and i t i s the p o l i c y of the Legal Aid Society to honour c l i e n t s ' preferences for p a r t i c u l a r lawyers whenever possible and 3 appropriate . Apart from c l i e n t preference, cases are not randomly assigned, but are a l l o t t e d on the basis of whether they are considered "minor matters" or "serious matters". In the Legal Community "minor matters" are considered to be offences such as t h e f t , obtaining goods by f a l s e pretences, possession of small quantities of the various narcotics, and t r a f f i c k i n g i n drugs on a small scale. Rape, murder, large-scale armed robbery, kidnapping and extortion are examples of offences considered to be "more serious" This i s the opinion of the person at Legal Aid who i s responsible for assigning e l i g i b l e c l i e n t s to requesting lawyers. 2 . . See Appendix C for sample copy of Criminal and C i v i l Legal Aid a p p l i c a t i o n forms. 3 According to the person that I interviewed at Legal Aid, an example of an inappropriate request would be for instance where a person accused of murder requests a very r e c e n t l y - c a l l e d young lawyer (that i s , a lawyer i n his f i r s t few years of p r a c t i c e ) . Legal Aid assigns murder cases only to "more senior" lawyers (at l e a s t f i v e years c a l l e d ) . 49 matters . More serious matters are not assigned, except i n unusual circumstances to "inexperienced" lawyers (usually meaning less than two years c a l l e d ) ; and so, the kinds of cases that came from Legal Aid to the lawyers i n t h i s study are considered i n the l e g a l community to be "minor matters". Since Legal Aid pays only $30.00 a day per c l i e n t (this usually t o t a l s about $90.00 per case: one day to f i x a date, one day to prepare for t r i a l , and one day for t r i a l ) , law-yers who r e l y mainly on Legal Aid for c l i e n t s have to con-duct a c e r t a i n kind of p r a c t i c e i n order to "make i t pay"; that i s , they must process a high volume of cases with summary attention to each case. C l i e n t s who can a f f o r d to pay the f u l l fee (usually $250.00 as compared with $90.00 supplied by Legal Aid) are more "welcome" than Legal Aid c l i e n t s , though i t probably i s not the case that they receive more attention or get "better service" than do Legal Aid c l i e n t s , since they have to be f i t t e d into the same schedule and routine, where the lawyer gears his days to processing Legal Aid cases i n volume; but presumably a c l i e n t who i s prepared to pay above and beyond the usual fee can buy s p e c i a l treatment. The d i s t i n c t i o n between "major" and "minor" matters i s understood i n roughly the same way by members of the l e g a l community, though i n d i v i d u a l usage may vary s l i g h t l y . This d i s t i n c t i o n has no r e a l basis i n the criminal code along c r i t e r i a such as maximum penalty, and indeed i n some i n -stances the maximum penalty for a "minor matter" may be higher than for a "major matter". This i s s t r i c t l y a members' d i s t i n c t i o n and members are well aware of i t s inadequacies. 50 For minor criminal cases, such c l i e n t s are l i k e l y to be 1 rare That a c l i e n t i s on Legal Aid and i s accused of a minor criminal offence a f f e c t s the way i n which the lawyer sees the c l i e n t as a person and as a case: Lawyer B: It's t h i s kind of work - p o l i c e court work i s unique i n i t s e l f . I mean regarding the law...it's c a l l e d law, but the whole process i s t o t a l l y - i f the law has any meaning, i t becomes t o t a l l y meaningless down there. If law has meaning i n other aspects or other areas, because these people are s o c i a l prob- lems * P: And they're dealt with i n that way I came across only one instance of a c l i e n t buying s p e c i a l treatment. This was i n a more serious case, the offence being "Importation" (of drugs for the purpose of t r a f f i c k i n g ) for which the minimum penalty i s seven years imprisonment. The c l i e n t s i n this case were given s p e c i a l treatment i n that interviews were much longer (two hours compared to half an hour) and there were several interviews instead of ju s t one, as i s usually the case. Greater care was taken i n getting up the case and i n researching the law and i n negotiating with the Prosecutor's O f f i c e . The lawyer's fee was $500.00 per c l i e n t instead of the usual $250.00. (This case i s further discussed below, p. 103, foot-note.) * This convention i s used to indicate omission of exchanges. 51 They're dealt with i n - through a l e g a l system that i s not designed to handle these kind of people. They are techni-c a l l y , they are i n the courts because they have breached, quote, "the law", but the law - for most, the law presumes a c e r t a i n socio-economic, e t h i c a l back-ground. If somebody with a record as long as his arm, completely untrained to do anything, and no education - where i s he? /And nat u r a l l y the kind of people you're dealing with are going, to be j u s t slum types - r e a l slum types. There's no hope - i t j u s t doesn't make any d i f f e r -ence. Some of the records are j u s t so long. They're j u s t unbelievably long -and you know, to go i n there and argue whether or not t h i s f e l l a was g u i l t y under Section 269 of Possession of Stolen Property and the big issue becomes whether or not his statements are admissible i n a Voire Dire i s a game. I t ' s a mere game, because i t doesn't matter whether we beat that or not. I t ' s t o t a l l y i r r e l e v a n t regarding t h i s man. It' s i r r e l e v a n t because i t doesn't matter whether he's found to be g u i l t y or not. If he's found to be - i f he's not ac-quitted , he'11 be back next week! They * 11 prove i t next week. I t doesn't solve anything! In the p o l i c e court l e v e l f o r a good many people to go through there: the drunks, the Vag C's, the Vag B's, the Vag A's -repeats over and over and over and over. They're not crimina l s ; they're not e v i l -doers, they're not con a r t i s t s , they're not people who burn down homes; they're not people who break other people's legs, or even i f they are people who break other people's legs, they l i v e i n company where  that's considered f a i r enough! Whereas the r e s t of us don't - so somebody gets caught - somebody blows the whistle on em! 52 . . . the judges d e c i d e on whether or not they f e e l on the evidence somebody i s g u i l t y . They, as j u d g e s , are not con-cerned w i t h e i t h e r the d i g n i t y of the c o u r t nor w i t h u p h o l d i n g p r i n c i p l e s o f c r i m i n a l law. They are a d m i n i s t r a t o r s of t h i s s o c i a l w e l f a r e agency down t h e r e . They d e c i d e whether t h i s person i s t o go i n a f o s t e r home or not [laughs] . You know how t h i s i s I They are l i t e r -a l l y r u nning a people m i l l . I'm not p u t t i n g them down f o r t h a t - i t ' s j u s t sheer volume! There's j u s t no other way f o r them t o approach i t . l A second and v e r y s t r o n g f a c t o r t h a t i n f l u e n c e s the way a lawyer sees the c l i e n t and h i s case i s "the P a r t i -c u l a r s " . The p a r t i c u l a r s g i v e n to the lawyer are T h i s view was expressed by one of the f o u r lawyers (Lawyer B ) . The f o l l o w i n g e x c e r p t from an i n t e r v i e w w i t h another lawyer (Lawyer F*) shows a s i m i l a r a t t i t u d e : L: My view of the t h i n g - i n most o f these p o l i c e c o u r t t h i n g s ; and most of these people have r e a l l y l ong r e c o r d s , you know: L e g a l A i d and so on. My view i s t h a t I am h e l p i n g a dumb animal f o r the most p a r t -P: F i n d h i s way through the l e g a l maze. L: A l i t t l e b i t ; and i t ' s a l i t t l e b i t h o p e l e s s , because i t doesn't r e a l l y matter what happens i n c o u r t because no matter what happens, h e ' l l be back a g a i n . But t h a t i s b e t t e r I t h i n k than l e t t i n g t h a t animal have no d i r e c -t i o n a t a l l . I mean "animal" - i t ' s j u s t a s o c i a l animal t h a t we've produced. Some, most of these people I'm sure have l e s s than average i n t e l l i g e n c e t o s t a r t w i t h , and a whole bunch of other t h i n g s t h a t s o c i e t y has c r e a -t e d , t e r r i b l e backgrounds and a l l the r e s t of i t . And they get i n t o a t e r r i b l e p a t t e r n t h a t t h e r e ' s no way of g e t t i n g out o f . But f o r the most of i t , i t ' s j u s t h e l p i n g people get through i t . *Lawyer E i s r e f e r r e d t o i n Appendix A. 53 a second-hand v e r s i o n of the P o l i c e Report . L i k e the "dope sheet" d e s c r i b e d by Sudnow i n "Normal Crimes", the P a r t i c u l a r s g i v e the lawyer c e r t a i n s t e r e o t y p i c a l p r e -c o n c e p t i o n s about the c l i e n t and h i s c a s e . The P o l i c e Report i s composed from the policeman's o b s e r v a t i o n of the i n c i d e n t s or c i r c u m s t a n c e s t h a t l e a d him to make an a r r e s t . The u s u a l procedure f o r the drawing up of t h i s r e p o r t i s as f o l l o w s : The policeman observes (or i n v e s t i g a t e s a f t e r the f a c t ) and makes notes more or l e s s on-the-spot o f h i s v e r s i o n o f What A c t u a l l y Happened. U s u a l l y w i t h i n the next 24 h o u r s , he w r i t e s up a "more complete" r e p o r t , working from h i s notes and from memory. He w r i t e s t h i s r e p o r t as soon as he f i n d s time - u s u a l l y i n a "slow-down" p e r i o d . He may w r i t e i t out or he may d i c t a t e i t t o a s e c r e t a r y . T h i s r e p o r t i s d i r e c t e d to a departmental head o r to the P o l i c e C h i e f and i s f o r i n - d e p a r t m e n t a l use o n l y . He i s a l s o r e q u i r e d t o send a v e r s i o n of t h i s r e p o r t t o the P r o s e c u t o r ' s O f f i c e . The v e r s i o n t h a t the p r o s e c u t o r r e c e i v e s may be i n p a r t excerpted from the in-department r e p o r t , but cannot be a xerox because a s e p a r a t e form i s r e q u i r e d . (See Appendix B f o r the o u t l a y o f t h i s r e p o r t ) . The r e p o r t i s supposed to be s e t up t o o u t l i n e the c r u c i a l " d e s c r i p t i o n s " p e r t a i n i n g to the elements of the charge (as s e t out i n the C r i m i n a l Code) t h a t the p r o s e c u t o r must prove i n c o u r t . The p a r t i c u l a r p r o s e c u t o r who w i l l be h a n d l i n g the case i n c o u r t does not r e c e i v e the r e p o r t u n t i l a few d a y s , perhaps l o n g e r , a f t e r the o r i g i n a l r e p o r t was made o u t . I t should be noted t h a t the policeman does not d e s -c r i b e the events t h a t he h i m s e l f witnessed o r t h a t were r e p o r t e d t o him v i a a complainant - i n the way t h a t an o r d i -nary passerby would, or the way a newspaper r e p o r t e r would; because he does not see them t h a t way and because he w r i t e s the r e p o r t f o r a unique purpose. The policeman sees t h i n g s d i f f e r e n t l y because he i s t r a i n e d t o p e r c e i v e people and events s e l e c t i v e l y through a l e a r n e d and i n g r a i n e d mental s c r e e n i n g o p e r a t i o n t h a t a u t o m a t i c a l l y h i g h l i g h t s the v a r i o u s " p o l i c e l y " i n d i c a t o r s o f l i k e l y suspects and l i k e l y c r i m e s . He a l s o sees the a c t s a s s o c i a t e d w i t h l i k e l y s uspects i n a c h i a r o s c u r o of focus on the elements of the crime (as s e t out i n the C r i m i n a l Code) which must be proved i n c o u r t -and he i s u s u a l l y c a r e f u l to s e t t h i s out i n h i s d e s c r i p t i o n because t h i s i n f o r m a t i o n i s v i t a l t o the p r o s e c u t o r who w i l l use i t as h i s main d a t a i n p r e p a r i n g f o r c o u r t . 54 (C) CONTACT WITH THE PROSECUTOR: (1) The P a r t i c u l a r s : The P o l i c e Department sends the P r o s e c u t o r ' s O f f i c e a v e r s i o n of the P o l i c e Report f o r a l l charges t h a t are l a i d . The p r o s e c u t o r a s s i g n e d to a p a r t i c u l a r case i n t u r n , on r e q u e s t , passes a v e r s i o n of t h i s p o l i c e r e p o r t on to the defense lawyer who i s a c t i n g f o r the c l i e n t charged i n t h a t c a s e . The v e r s i o n t h a t the defense lawyer r e c e i v e s i s known as the "Particulars"'''. The p r a c t i c e of g i v i n g the p a r t i c u l a r s t o the defense c o u n s e l who i s a c t i n g f o r the accused i n a g i v e n case i s a p p a r e n t l y p e c u l i a r t o the c i t y i n which I d i d t h i s s t u d y . Moreover, i t i s done as a p o l i c y o f the P r o s e c u t o r ' s O f f i c e . By law, a defense lawyer can demand p a r t i c u l a r s , but "would have t o go t o c o u r t t o do s o . A l l t h a t the p r o s e c u t o r i s r e q u i r e d by law t o g i v e out t o the defense lawyer i s t i m e , p l a c e , and a minimal d e s c r i p t i o n o f events such as "appre-hended a f t e r committing a s s a u l t " . In p r a c t i c e , i n the c i t y o f my s t u d y , the c i t y p r o s e c u t o r s v o l u n t a r i l y u s u a l l y g i v e much more than such a minimal few-word d e s c r i p t i o n . They i n f a c t u s u a l l y g i v e most o f the d e s c r i p t i v e p a r t of the p o l i c e r e p o r t , which i s u s u a l l y a few, and may be s e v e r a l , p a r a -graphs l o n g . A p p a r e n t l y not a l l the defense l a w y e r s , or: even p r o s e c u t o r s , are aware of the customary nature of t h i s p r a c t i c e , but assume t h a t i t i s due and d u t y . One p r o s e c u t o r put i t t h i s way: P r o s e c u t o r A: "A young lawyer w i l l phone up and t e l l you he hasn't r e c e i v e d f u l l p a r t i c u l a r s . He w i l l ask you t o g i v e them, or e l s e ! I laugh because i t ' s j u s t a p o l i c y h e r e . Even the p r o s e c u t o r s t h i n k they have t o g i v e f u l l p a r t i c u l a r s , when r e a l l y they have t o be f o r m a l l y demanded i n c o u r t and then a l l t h a t i s r e q u i r e d i s t i m e , p l a c e , and a c o u p l e of words. I'm amazed a t the amount of i n f o r m a t i o n g i v e n . But I t h i n k i t ' s a v e r y good p r a c t i c e : g i v i n g the p a r t i c u l a r s makes f o r a f a i r t r i a l . " A c c o r d i n g to Grosman, g i v i n g the p a r t i c u l a r s i s not the p o l i c y i n Toronto where whether or not the defense coun-55 s e l g e t s p a r t i c u l a r s depends on f a c t o r s such as: the r e l a -t i o n s h i p between p r o s e c u t o r and defense lawyer, the b a r -g a i n i n g p o s i t i o n o f each w i t h r e s p e c t to assumed s t r e n g t h s and weaknesses of each c a s e , e t c : "On what f a c t o r s or c r i t e r i a does the p r o s e c u t o r base h i s d e c i s i o n to d i s c l o s e or not to d i s c l o s e ? The f o l l o w i n g i n t e r v i e w s suggest t h a t the q u a l i t y o f the r e c i p r o c a l r e l a t i o n s h i p s between p r o s e -c u t o r s and defense are the d e t e r m i n i n g f a c t o r i n the p r o s e -c u t o r ' s e x e r c i s e of d i s c r e t i o n w i t h r e s p e c t t o the p r e -t r i a l d i s c l o s u r e . " " . . . The f o r e g o i n g suggests t h a t the p r o s e c u t o r views p r e - t r i a l d i s c l o s u r e , p l e a s to l e s s e r c h a r g e s , and the w i t h -drawal of charges as f a v o u r s to be exchanged w i t h c e r t a i n defense l a w y e r s . These f a v o u r s w i l l not be a v a i l a b l e t o defense c o u n s e l who a r e a b r a s i v e o r demanding, but w i l l be a v a i l a b l e t o those who have proven themselves p a r t of the t r u s t w o r t h y s o c i a l g r o u p i n g . A defense lawyer who i s p a r t of the r e c i p r o c a t i n g environment, who i s " t r u s t e d " , who i s " s a f e " , w i l l o b t a i n f u l l d i s c l o s u r e of the p r o s e c u t i o n ' s case b e f o r e t r i a l . He i s " s a f e " i f he does not u t i l i z e the evidence o b t a i n e d i n p r e - t r i a l d i s c l o s u r e f o r c r o s s -examining p r o s e c u t i o n w i t n e s s e s and i s l i k e l y t o enter a g u i l t y p l e a a f t e r an assessment of the p r o s e c u t o r ' s e v i d e n -t i a r y s t r e n g t h . The e n t r y of a p r o p o r t i o n a t e number o f g u i l t y p l e a s by defense c o u n s e l i s a p r e - r e q u i s i t e . Defense c o u n s e l who c o n s i s t e n t l y take an a d v e r s a r i a l p o s i t i o n or r e g u l a r l y enter not g u i l t y p l e a s on b e h a l f of t h e i r c l i e n t s w i l l not share i n the b e n e f i t s of p r e - t r i a l d i s c l o s u r e . " Grosman, The P r o s e c u t o r , pp. 75-76. At the time of w r i t i n g of the f i n a l v e r s i o n of t h i s work (Summer, 1972) I am informed by the lawyers who p r o o f -read t h i s v e r s i o n t h a t i t i s no l o n g e r the p o l i c y of the P r o s e c u t o r ' s O f f i c e t o g i v e the p a r t i c u l a r s t o the lawyer v i a the lawyer's s e c r e t a r y , but t h a t lawyers wanting p a r t i -c u l a r s must get them p e r s o n a l l y from the P r o s e c u t o r ' s O f f i c e by t a l k i n g t o the p a r t i c u l a r p r o s e c u t o r on the c a s e . The reason g i v e n by the P r o s e c u t o r ' s O f f i c e was t h a t t h e r e was too much d i s t o r t i o n when the p a r t i c u l a r s got to the lawyer v i a h i s s e c r e t a r y . The lawyers i n my study b e l i e v e t h a t t h i s i s not the " r e a l " reason and c l a i m t h a t a s e c r e t a r y who knows shorthand w i l l take down a more a c c u r a t e v e r s i o n than a lawyer who i s not s k i l l e d i n shorthand. 56 The p a r t i c u l a r s are what the p r o s e c u t o r reads to the defense lawyer ( o r , more u s u a l l y , t o h i s s e c r e t a r y ) over the phone as i n f o r m a t i o n r e g a r d i n g those p a r t s o f the p o l i c e r e p o r t t h a t the p r o s e c u t o r i s allowed t o pass on t o the defense c o u n s e l . When g i v i n g the p a r t i c u l a r s , the p r o s e c u t o r r a r e l y reads the o r i g i n a l r e p o r t v e r b a t i m , but does v a r i o u s i n t e r p r e t i n g , e d i t i n g and abridging"'". How a p r o s e c u t o r "transforms" the p o l i c e r e p o r t i n t o " p a r t i c u l a r s " f o r the defense c o u n s e l depends on a number of f a c t o r s : An important c o n s i d e r a t i o n , a c c o r d i n g t o p r o s e c u t o r s i n t e r v i e w e d i s what, i f a n y t h i n g , the The f o l l o w i n g e x c e r p t from an i n t e r v i e w of Lawyer C and h i s c l i e n t shows t h a t defense c o u n s e l a r e w e l l aware of t h i s " c e n s o r i n g " p r o c e s s : C: Are you - Do you have any access to uh - p o l i c e r e p o r t s - on, on the case? L: On t h i s ? C: Yeah. L: W e l l , o n l y as - o n l y as t o the extent o f what t h e y ' r e w i l l i n g to g i v e me...over the phone. C: Uh-huh. L: Cause, u s u a l l y , uh - you know - t h e r e ' s some t h i n g s they won't t e l l you and t h e r e ' s a l o t of t h i n g s they w i l l t e l l you - t h e y ' l l t e l l you g e n e r a l l y what the case is...now - I've g o t t a c a l l ^prosecutor) r i g h t now and f i n d out what they've g o t . I know from t a l k i n g t o [^prosecutor] t h e r e t h a t , t h a t t h e i r f i l e i s n ' t complete y e t , because he d i d n ' t have a l l the i n f o r -mation e i t h e r . 57 prosecutor knows about the policeman who made out the report. Prosecutor B: If i t ' s a new o f f i c e r , you know you have to do a l i t t l e extra work. You know there's inexperience operating there. A l o t of the report could be wishful thinking. A couple of cops are known to be so bad no-one takes them se r i o u s l y . Some cops are toughies, so you scale down t h e i r reports; others are known to be s o f t i e s , so i f they say some guy did something, you know he did i t and probably a h e l l of a l o t more too. For i n -stance, i f i t ' s an assault case, i f you know your cops, you know who would provoke an assault and who wouldn't. So i n general you shade the report i n view of who i t was that made i t out. You take i t as being more or less r e l i a b l e depending on what you know about the cop. If a prosecutor reads through the p o l i c e report c a r e f u l l y before going to court, he may notice gaps, incon-g r u i t i e s , or what he takes to be mistakes, and may then contact the o f f i c e r who made out the report to c l a r i f y c e r t a i n points. The prosecutor may also ask for a supplementary report, which the p o l i c e o f f i c e r may or may not supply, depending on time pressure, personal and departmental p o l i c y , and what he can remember from the incident, etc. Some-times, apparently, an o f f i c e r w i l l v o l u n t a r i l y send a supplement to a "sketchy" report. The prosecutor probably also shades h i s private i n t e r p r e t a t i o n of the report i n the l i g h t of such general considerations as what he thinks he knows about the t y p i c a l ways i n which such crimes are committed, what i n his 5 8 e x p e r i e n c e i s a t y p i c a l o f f e n d e r , and how t h i s matches up w i t h the d e s c r i p t i o n o f the a c c u s e d , and so on. G i v i n g the p a r t i c u l a r s i s f o r the p r o s e c u t o r a chance to review the case b e f o r e i t goes t o c o u r t ( i t may a l s o be the f i r s t and o n l y time b e f o r e c o u r t t h a t the p r o s e c u t o r l o o k s a t the p o l i c e r e p o r t ) . I f t h e r e i s an exchange be-tween the p r o s e c u t o r and the defense lawyer over the t e l e -phone about the particulars''" i t may develop as a s o r t of f r i e n d l y p r e - t r i a l j o u s t i n which the p r o s e c u t o r and Normally defense lawyers l e a v e i t t o t h e i r s e c r e t a r i e s t o get the p a r t i c u l a r s from the p r o s e c u t o r . T h i s i s done u s u a l l y p u r e l y as an e f f i c i e n c y measure, s i n c e i t saves the lawyer t i m e , and s i n c e he i s out o f the o f f i c e i n c o u r t a g r e a t d e a l , and s i n c e the s e c r e t a r y i s u s u a l l y much more s k i l l e d a t t a k i n g down notes q u i c k l y over the telephone ( t a p i n g the c o n v e r s a t i o n w i t h the p r o s e c u t o r i s f o r b i d d e n by l a w ) . Most lawyers a r e s a t i s f i e d w i t h t h i s arrangement, but some lawyers do r e g r e t having t o l e a v e t h i s j o b t o t h e i r s e c r e t a r i e s because they f e e l the p r o s e c u t o r l e a v e s out more d e t a i l i f " i t ' s o n l y a g i r l a t the o t h e r end" than i f i t ' s a l awyer. A l s o the lawyer knows, and the s e c r e t a r y does not know, what k i n d o f q u e s t i o n s r e g a r d i n g f u r t h e r d e t a i l s a r e l i k e l y t o be important t o h i s c a s e . In g e t t i n g a w r i t t e n a c c o u n t , lawyers miss i n f o r m a t i o n t h a t comes from i n t e r p r e t -i n g tone o f v o i c e , s i d e comments, e t c . In s o r t i n g out the p a r t i c u l a r s from what she takes to be a s i d e comments, e t c . , the s e c r e t a r y i s i n a sense c o n t r i b u t i n g t o the c r e a t i o n of the p a r t i c u l a r s . I f a lawyer c o n s i d e r s a case t o be p a r t i c u l a r l y i m p o r t a n t , he may d e c i d e t o take h i s own p a r t i c u l a r s , r a t h e r than have h i s s e c r e t a r y do i t f o r him. In most i n s t a n c e s however, i f p r e - c o u r t exchanges between lawyer and p r o s e c u -t o r o c c u r , they do not take p l a c e a t the time of the g i v i n g of the p a r t i c u l a r s , but are i n i t i a t e d by the defense lawyer a f t e r he has read the p a r t i c u l a r s , or by the p r o s e c u t o r on some o c c a s i o n b e f o r e or a f t e r g i v i n g the p a r t i c u l a r s . 59 defense lawyer f e e l each other out and form opinions about the strength of each other's case and about t h e i r l i k e l y t a c t i c s . I t may also be the occasion for overtures or for settlements i n the negotiations of "deals" : the defense lawyer may point out d i f f i c u l t i e s i n the prosecutor's probable evidence, and the prosecutor may take t h i s as an opening for a deal, or the prosecutor may himself i n i t i a t e overtures for a deal. (2) The Deal: The "deal" should by now be a f a m i l i a r term to readers i n the Sociology of Law. Sudnow's "Normal Crimes"^ explains i n d e t a i l one kind of "deal" negotiated between public defender and prosecutor. Professor Grosman i n h i s 2 book about prosecutors i n Toronto examines aspects of deal-making i n depth adding much to considerations put f o r t h by Sudnow. Sudnow, "Normal Crimes, S o c i o l o g i c a l Features of the Penal Code i n a Public Defender O f f i c e " . 2 Grosman, The Prosecutor, pp. 29-4 3, Chapter Four, "Discretion and P r e - t r i a l Practices". On p. 30 he gives the beginnings of a d e f i n i t i o n of the deal: "The recent report i n the United States of the President's Commission on criminal j u s t i c e recognized the pervasive influence of 'plea bargaining' : 'In form, a plea bargain can be any-thing from a series of c a r e f u l conferences to a hurried consultation i n a courthouse c o r r i d o r . In content, i t can be anything from a conscientious exploration of the facts and d i s p o s i t i o n a l a l t e r n a t i v e s a v a i l a b l e and appro-p r i a t e to a defendant, to a perfunctory deal. . . . " See also Donald J . Newman, "Pleading G u i l t y for Con-side r a t i o n s : A Study of Bargain J u s t i c e " , Journal of Crimi- nal Law, Criminology and Police Science, (Vol. 46, March-A p r i l , 1956), pp. 780-90. 60 In g e n e r a l , a d e a l i s made when the p r o s e c u t o r agrees t o change some a s p e c t o f the way i n which he would no r m a l l y handle h i s case - i n a way t h a t i s supposed t o be an advantage t o the accu s e d , u s u a l l y w i t h r e s p e c t t o l e s s e n -i n g the l i k e l y sentence by r e d u c i n g the o r i g i n a l c h a r g e , i n r e t u r n f o r the defense lawyer changing some aspect of the way i n which he would normally conduct h i s c a s e . T h i s change u s u a l l y means p l e a d i n g g u i l t y r a t h e r than going t o t r i a l -but p l e a d i n g g u i l t y t o a reduced charge"*". I found i n the p a r t i c u l a r s e t t i n g of my study t h a t , a l t h o u g h d e a l s may i n some i n s t a n c e s be t o the advantage of both defense c o u n s e l and p r o s e c u t o r , they a r e not engaged i n as a g e n e r a l p o l i c y as was the case w i t h Sudnow's P u b l i c P r o s e c u t o r s and P u b l i c D e f e nders. Deals may be i n i t i a t e d by e i t h e r the p r o s e c u t o r o r the defense c o u n s e l . Whether or not a d e a l i s i n i t i a t e d depends on what each t h i n k s he knows about what k i n d o f case the oth e r has and what advantage each Grosman (Grosman, The Pr o s e c u t o r ) p o i n t s out t h a t the g u i l t y p l e a t o a reduced charge i s not n e c e s s a r i l y an advan-tage to the accused i n terms o f pr o b a b l y r e c e i v i n g a l i g h t e r sentence s i n c e the maximum p e n a l t y f o r the reduced charge i s sometimes the same as or g r e a t e r than the minimum p e n a l t y f o r the o r i g i n a l c harge. (Grosman, The P r o s e c u t o r , pp. 33-36.) 61 thinks can be gained from what kind of deal . Obviously/ the best outcome for the prosecutor i s normally the g u i l t y P o l i c e opinion apparently plays a r o l e i n the prosecu-tor's willingness to make a deal. There are apparently instances where the p o l i c e are keen for conviction and "put pressure" on the Prosecutor's O f f i c e . Though prosecutors are supposed to be immune from t h i s kind of influence, the lawyers i n my study and others are of the opinion that prosecutors are i n f a c t i n some'cases influenced by p o l i c e opinion. Lawyers commonly complain that since the p o l i c e department and the Prosecutor's O f f i c e are housed i n the same bu i l d i n g as the courts, that the Prosecutor's O f f i c e i s a sort of "wing of the p o l i c e force". Prosecutor and p o l i c e witnesses are working partners i n the same sense as lawyer and c l i e n t for purposes of preparation and performance i n court. Grosman (Grosman, The Prosecutor) discusses the quest-ion of p o l i c e pressure at length i n Chapter Five, pp. 44-59. The following excerpts support the opinion of the lawyers I interviewed: "The emotional attachment of the p o l i c e to a p a r t i c u l a r case or t h e i r desire to protect informers for future usefulness r e s t r i c t s p r o s e c u t o r i a l freedom to compro-mise pleas." Ibid, p. 40. "Police bias i s acknowledged by most prosecutors and i t i s explicable by the occupational perspectives of the p o l i c e which ascribe the highest p r i o r i t y to "crime f i g h t i n g " and the arrest of the g u i l t y . Emotional attachment to a case and p o l i c e pursuit of conviction i s p a r t i c u l a r l y mani-f e s t where i t i s alleged that a sexual offence has been committed against a young c h i l d , or where p o l i c e have been p h y s i c a l l y or v e r b a l l y abused by the accused during a r r e s t . In addition, when p o l i c e have invested substantial i n v e s t i -gatory e f f o r t and have arrested a notorious or important suspect, they are much more interested i n the successful prosecution and conviction of the accused than they are i n the case of more routine a r r e s t s . " Ibid, p. 45. "As noted e a r l i e r , some of the younger members of the Prosecutor's O f f i c e f e l t closer to p o l i c e o f f i c e r s and t h e i r expediting values than to t h e i r professional colleagues, the defense lawyers. This creates an in-group s o l i d a r i t y between prosecutors and p o l i c e which may be associated with some h o s t i l i t y towards the outgroup which i s composed of accused persons and the defense lawyers who represent them. ...Others i d e n t i f y with the values of the defense lawyers and accord those values some prestige." Ibid, p. 68. 62 plea. I t i s more convenient i n that i t makes his job much "easier"; he does not have to go through the tedium of spending a long morning or afternoon seemingly end-l e s s l y c a l l i n g and cross-examining witnesses to prove h i s case. Going to t r i a l and "winning" or "losing" does not represent the same advantage or loss to the prosecutor"'" as i t does to the defense lawyer, since the prosecutor's salary i s fix e d and his stream of c l i e n t s i s "automatic" and not dependent on his reputation and his rumoured win-loss r a t i o , etc.; whereas, the defense lawyer normally i s 2 paid l e s s i n d o l l a r s and prestige f o r a g u i l t y plea than for a t r i a l ; and his reputation and hence his p o t e n t i a l c l i e n t - a t t r a c t i n g power i s p a r t l y dependent on h i s rumoured approximate win over loss r a t i o . I w i l l expand t h i s con-si d e r a t i o n at t h i s point since i t i s important i n explaining why the defense lawyer handles cases the way he does and i n explaining the nature of his r e l a t i o n s h i p with the prosecutor. The p o s i t i o n of the private defense counsel i s d i f f e r -ent from that of the prosecutor and from that of Sudnow's Grosman observes the same consideration: "The number of cases l o s t at t r i a l do not cause as much concern to prosecutors as the number of cases which ultimately proceed to t r i a l . " Ibid, p. 54. 2 A g u i l t y plea may involve only one court appearance and no preparation and hence would y i e l d only $30.00 from Legal Aid. However, i t can be stretched out v i a a request for a pre-sentence report to another court appearance, and hence another $30.00. 63 P u b l i c D efenders, f i r s t because the p r i v a t e defense c o u n s e l i s the o n l y one who i s not on s a l a r y and who i s t h e r e f o r e i n b u s i n e s s of r e c r u i t i n g c l i e n t s and whose remuneration i s dependent on how many cases he i s a b l e t o p r o c e s s and on what type of cases he gets ( i n terms of the normal p r e p a -r a t i o n time and "bother" i n v o l v e d ) . S e c o n d l y , w i n n i n g , as compared w i t h simply " h a n d l i n g the case w e l l " , i s more important to the p r i v a t e defense lawyer than to the p r o s e -c u t o r , because the defense lawyer keeps h i m s e l f aware of the c o n t i n g e n c y t h a t c l i e n t s are not l i k e l y t o recommend a lawyer to t h e i r f r i e n d s , or come back a g a i n , i f he f e e l s the lawyer has not "done a good j o b " . Doing a good job does not n e c e s s a r i l y mean w i n n i n g , but most defense lawyers t h i n k t h a t i t stands to r e a s o n t h a t winning i s the p r e f e r r e d outcome f o r the c l i e n t , and t h a t a c l i e n t i s l i k e l y t o g i v e good reviews of a lawyer who "got him o f f " . G a i n i n g and m a i n t a i n i n g " r e p u t a t i o n " i s n ormally important t o the defense l a w y e r , even i f he c u r r e n t l y has a steady stream o f c l i e n t s passed on by L e g a l A i d . The concern to seem to do a good j o b , even w i t h L e g a l A i d c l i e n t s , i s f o r s e v e r a l r e a s o n s : L e g a l A i d c l i e n t s are l i k e l y t o have f r i e n d s who w i l l be " g e t t i n g i n t o t r o u b l e w i t h the law". L e g a l A i d c l i e n t s are a l s o l i k e l y t o be r e p e a t e r s , and i f they f e e l the lawyer has done a good j o b , they are l i k e l y t o r e q u e s t the same lawyer from L e g a l A i d the next time they a r e accused. I f , on the o t h e r hand, the 64 c l i e n t i s d i s s a t i s f i e d , t h e r e i s the p o s s i b i l i t y t h a t he w i l l a i r h i s g r i e v a n c e w i t h L e g a l A i d who then would be l e s s l i k e l y to send a l o n g as much " b u s i n e s s " . I t i s e a s i e r and f a s t e r ^ f o r a lawyer t o keep d e f e n d i n g the same c l i e n t on "new" charges than to p r o c e s s new c l i e n t s , f o r w i t h " o l d " c l i e n t s , the d a t a f o r speaking to sentence i s a l r e a d y assembled and on f i l e , r a p p o r t i s p r e - e s t a b l i s h e d , and so on. Another c o n s i d e r a t i o n i s t h a t i n the l e g a l community, i t seems t o be a g e n e r a l l y b e l i e v e d i n o p e r a t i v e t h a t i f a lawyer mismanages L e g a l A i d c a s e s , h i s incom-petence w i l l p r e v e n t him from b u i l d i n g up a c l i e n t e l e of "paying" c l i e n t s . I n c r e a s i n g t h e i r p a y i n g c l i e n t e l e i s a g o a l f o r most lawyers because o f the economic advantage and due t o the f a c t t h a t they a r e aware of the danger o f the volume of p o t e n t i a l cases from L e g a l A i d d e c r e a s i n g w i t h an i n c r e a s e i n the number o f graduates from law s c h o o l s t a r t i n g out i n c r i m i n a l work r e l y i n g m a i n l y on L e g a l A i d f o r I. ^In the f o l l o w i n g passage Lawyer B r e f e r s i n exaggerated terms t o an example of t h e convenience o f h a v i n g r e p e a t e r s : "I've got t h i s c l i e n t - every week i t ' s something new - I get a new form from L e g a l A i d every week f o r the same o l d c l i e n t ! Dear o l d . I p l e a d her g u i l t y , t h a t ' s t h i r t y bucks; I ask f o r a p r e - s e n t e n c e r e p o r t , t h a t ' s another t h i r t y bucks. Then b e f o r e s e n t e n c i n g f o r t h a t one comes up, she's done i t a g a i n . She keeps d o i n g i t and keeps t e l l i n g the cops she d i d i t . C h e e r f u l o l d . Good o l d L e g a l A i d c l i e n t ; keep you i n b u s i n e s s f o r s i x months. She j u s t keeps coming back." 65 c l i e n t s . Lawyers are concerned not o n l y about t h e i r r e p u t a -t i o n w i t h c l i e n t s and p o t e n t i a l c l i e n t s , but a l s o w i t h t h e i r r e p u t a t i o n i n the l e g a l community a t l a r g e , e s p e c i a l l y w i t h o t h e r c r i m i n a l l a w y e r s . One v e r y p r a c t i c a l reason why lawyers are concerned about t h e i r r e p u t a t i o n w i t h t h e i r f e l l o w s i s t h a t o t h e r lawyers can be a source of c l i e n t s . 2 Lawyers pass c l i e n t s on to o t h e r lawyers i n i n s t a n c e s The person a t L e g a l A i d who i s p r i m a r i l y r e s p o n s i b l e f o r a l l o c a t i n g c l i e n t s t o lawyers t o l d me t h a t she f r e -q u e n t l y warns young lawyers who r e l y h e a v i l y on L e g a l A i d c a s e s : "I keep t e l l i n g the boys - don't depend on L e g a l A i d . I t may dry up. There are more lawyers than L e g a l A i d cases t o keep them a l l happy. There are a l o t of new lawyers j u s t s t a r t i n g out now; and we don't know many of them, and some of them are f i n d i n g i t h a r d , e s p e c i a l l y the ones on t h e i r own." In the f o l l o w i n g passage Lawyer B shows an awareness of t h i s p o s s i b i l i t y : "Legal A i d opened up i t s doors j u s t as we opened up our d o o r s . Same t h i n g f o r [Lawyer A] . A l o t o f u s , more than ever b e f o r e , s t a r t e d up t h i s year -would have been i m p o s s i b l e without L e g a l A i d . But next year t h e r e ' l l be more and more guys; and when L e g a l A i d s t a r t s p a y i n g f i f t y bucks, t h e y ' l l a l l be wanting i t . So f i v e y e ars from now i t won't be easy. But we got i n on i t t o b u i l d up our p r a c t i c e . F i v e y ears from now, we wouldn't want i t - and won't need i t . " 2 C a r l i n i n h i s study of i n d i v i d u a l p r a c t i t i o n e r s i n Chicago found some lawyers who r e l y mainly on r e f e r r a l s from o t h e r l a w y e r s . The f o l l o w i n g i s an e x c e r p t from h i s book i n which he quotes a lawyer who s p e c i a l i z e s i n doing work f o r o t h e r lawyers: "I do a l o t of work f o r o t h e r lawyers - I'm a lawyer's lawyer. A l o t of lawyers can get judgments, but can't c o l l e c t . I come i n then...." C a r l i n , Lawyers on  T h e i r Own, p. 110. 66 where they a r e too busy to handle them themselves, where cases come t h e i r way t h a t are not t h e i r " l i n e " (e.g.lawyers who s p e c i a l i z e i n c i v i l c a s e s , and do not want t o do c r i m i -n a l work), or where they cannot a c t f o r a c l i e n t because t h e r e i s "a c o n f l i c t of i n t e r e s t s " ( t h i s o c c u r s t y p i c a l l y where a g i v e n lawyer i s d e f e n d i n g two persons accused i n the same o f f e n c e where one co-accused wishes t o g i v e e v i -dence t h a t c o n t r a d i c t s the evidence t h a t the other co-accused wishes to g i v e ) . In g e n e r a l , t h e n , i t i s important t o the p r i v a t e defense c o u n s e l t o "do a good job" and h o p e f u l l y t o be remoured as having a h i g h win over l o s s r a t i o i n o r d e r t o ach i e v e and m a i n t a i n a r e a s o n a b l e r e p u t a t i o n w i t h i n the community so t h a t c l i e n t s w i l l generate more c l i e n t s , so t h a t o t h e r lawyers w i l l pass on c l i e n t s and cooperate i n "shared" cases (cases where t h e r e i s more than one accused and more than one lawyer a c t i n g f o r the a c c u s e d s ) ; and so t h a t L e g a l A i d w i l l send the d e s i r e d volume o f c a s e s . For these r e a s o n s , the " g u i l t y p l e a " v i a the d e a l i s not n e c e s s -a r i l y the b e s t a l t e r n a t i v e f o r the p r i v a t e defense lawyer and i s u s u a l l y taken as the l a s t r e s o r t ; t h a t i s , f o r example, when the p a r t i c u l a r s seem t o p r e s e n t a v e r y s t r o n g case f o r the p r o s e c u t o r and the p o s s i b i l i t i e s o f a defense 67 seem "hopeless" and the lawyer f e e l s the best he can do for h is c l i e n t i s to try for a l i g h t e r sentence v i a the deal. 2 The deal described i n d e t a i l by Sudnow where a g u i l t y plea to a lesser-included offence i s exchanged for dropping the o r i g i n a l charge, i s only one of the deals used by defense counsel i n my set t i n g to lessen the l i k e l y sen-tence for the accused. According to my sources, deals are also arranged whereby the lawyer agrees to plead the c l i e n t g u i l t y to the o r i g i n a l charge i f the prosecutor agrees to leave out c e r t a i n damaging d e t a i l s or statements when he reads the " f a c t s " (from his copy of the p o l i c e report) to I t i s s t i l l possible f o r the prosecution to " s l i p up somewhere" and for the defense lawyer to "get the accused of f on a t e c h n i c a l i t y " and hence there i s s t i l l a chance of "winning" by going to t r i a l when the case seems "hopeless". This i s why some lawyers claim that i t i s almost always better to go to t r i a l than to go for the deal. Prosecutors, too, are aware of t h i s : (The following i s an excerpt from an interview with Prosecutor B.) "If you're i n court prose-cuting f i v e cases a day, f i v e days a week, the more g u i l t y pleas,the better. You a c t u a l l y count on g u i l t y pleas. You can't do f i v e cases a day. No prosecutor i s a l l that anxious to go to t r i a l . So many things can go wrong. There are so many things i n favour of the defense counsel : half your wit-nesses aren't going to show up, some of your cops are. going to have hangovers; you've probably got one too. You may have forgotten to subpoena a witness; there may be something wrong with the Information [document sworn out by the a r r e s t -ing o f f i c e r to o f f i c i a l l y lay the charge] . You can't p o s s i -bly have prepared properly for a l l f i v e cases. If i t ' s a peculiar offence, you may not have done that many. Really the odds come down i n favour of the defense. Those guys don't r e a l i z e i t . Even when i t looks l i k e the Crown has i t s case a l l sewn up, so many things can go wrong." 2 Sudnow,"Normal Crimes, S o c i o l o g i c a l Features of the Penal Code i n a Public Defender O f f i c e " , pp. 256-59. 68 the judge i n c o u r t b e f o r e sentence i s passed . The f o l l o w i n g i s an e x c e r p t from an i n t e r v i e w i n which Lawyer B d i s c u s s e s d e a l s : L: Another t h i n g about d e a l s - I don't know i f you're on t o i t y e t , but one of the b i g g e s t t h i n g s about d e a l s t h a t I've, uh - b i g g e s t a s p e c t s o f d e a l i n g t h a t I do - i s not j u s t p l e a b a r g a i n i n g , not j u s t : "We'll p l e a d g u i l t y to count one, i f y o u ' l l s t a y two and t h r e e " , but "We'll p l e a d g u i l t y t o count one - i f you read i n these f a c t s . " Oh, c h r i s t , I do t h a t a l l the ti m e . P: You do, eh? L: W e l l , uh, you know, when i t ' s inflammatory a t a l l . P: How do you do t h a t ? - You j u s t phone up and say - j u s t what you s a i d j u s t now? L: Oh, s u r e : "We'll do t h i s , i f y o u ' l l do t h a t " . I've done t h a t on a l o t t a drug cases - I've got tremendous d e a l s t h a t way. P: Does i t depend on the p r o s e c u t o r , or on the c a s e , or on a combination? L: Depends on the p r o s e c u t o r - the p r o s e c u t o r ' s a human b e i n g . He's s t a n d i n g t h e r e i n c o u r t a l l day, he's gonna haveta prove a l l t h i s . P: Yeah. L: Oh c h r i s t ! He's on s a l a r y , t o o . Keep t h a t i n mind. I t doesn't make a damn b i t o f d i f f e r e n c e t o him. He's j u s t g o t t a do h i s j o b . In h i s view, you know, your c l i e n t i s g u i l t y , and i t ' s h i s job to see t h a t he's got a good c a s e . L e tls put i t t h a t way. He knows damn w e l l he's got a good case! I_ know he's got a good case! We a l l know, but I - he knows t h a t I can make i t a v e r y cumbersome, d i f f i c u l t . . . a n d l o n g , t i r i n g a f t e r n o o n ! By the way -d e a l s are o f t e n something t h a t are s e t up by the Crown -f o r i n s t a n c e , on t h a t i m p o r t i n g charge - I'm damn sure t h a t they had s t r o n g s u s p i c i o n s t h a t he was i n v o l v e d i n i m p o r t i n g , but damn, pr o b a b l y damn l i t t l e evidence of i t . So they a l s o charged him w i t h p o s s e s s i o n f o r the purposes, opening the way f o r the d e a l . 69 Typical items that defense lawyers apparently nego-t i a t e f or the del e t i o n of are such things as the amount of "dope" (in a possession charge), or the degree of violence, or use of obscenities ( p a r t i c u l a r l y when these are alleged to have been directed against the p o l i c e ) ; and confessions of various types^". For example: If an accused was a l l e g -edly i n possession of one gram of hashish, one bag of mari-juana and three caps of ac i d , the prosecutor may agree to mention only the gram of hash, i n return for a g u i l t y plea. In a case where the charge i s Assault Causing Bodily Harm, the prosecutor may agree to leave out the f a c t that the accused a l l e g e d l y beat up an e l d e r l y lady, as well as the p o l i c e o f f i c e r who came to her rescue. Another type of deal may be arranged i n a case where there i s more than one accused and charges are dropped against one co-accused and retained against the other. Typi-c a l l y t h i s occurs where a man and h i s g i r l f r i e n d are both charged with a given offence and the man wants to shoulder i t a l l himself and t e l l s h i s lawyer that he w i l l plead g u i l t y i f they " l e t h i s g i r l o f f " . I did not come across any reference to or instance of negotiation for omission of mention of the record of the accused, although i t i s standard p r a c t i c e and not considered " d i r t y play" that when the accused takes the stand, the prose-cution w i l l c i t e any record of the accused as a way of dimi-nishing c r e d i b i l i t y . This p r a c t i c e i s l e g a l l y sanctioned.(See Section 12,"Canada Evidence Act", Revised Statutes of Canada, (Ottawa: Queens P r i n t e r , 1970), Chapter E-10, pp. 1-23. I t i s also standard p r a c t i c e for the prosecution to put the record before the court p r i o r to sentencing when the accused has been found g u i l t y . 70 Whether or not d e a l s are made depends not o n l y on the circumstances of the c a s e , but a l s o on the nature of the r e l a t i o n s h i p between p r o s e c u t o r and defense lawyer. (3) R e l a t i o n s h i p Between P r o s e c u t o r and  Defense Lawyer; R e l a t i o n s between the p a r t i c u l a r p r o s e c u t o r and the p a r t i c u l a r defense c o u n s e l on the same case may range from the s i t u a t i o n d e s c r i b e d by Sudnow where t h e r e i s f r i e n d l y c o n s p i r a c y t o cooperate^" i n g e t t i n g as many g u i l t y p l e a s as In the f o l l o w i n g example Lawyer B d e s c r i b e s an i n c i -dent i n which he and the p r o s e c u t o r c o n s p i r e t o g e t h e r " a g a i n s t " the accused: " T h i s guy comes down when I'm i n c o u r t on another case and wants a lawyer. He says he's going t o p l e a d g u i l t y t o an impaired and needs someone t o speak t o sentence. So I say, 'Yeah, s u r e , as soon as I f i n i s h t h i s one.' So the time comes and we a d j o u r n w h i l e I f i g u r e i t o u t . Not o n l y i s he charged w i t h i m p a i r e d , but r e f u s i n g t o blow. The Crown i s r e a l l y gonna sock i t t o him. He says the reason he d i d n ' t blow was t h a t he was too drunk t o stand up. He was i n f o r a t l e a s t f i v e hundred d o l l a r s i n f i n e s . So I go to the p r o s e c u t o r and i t1s the one t h a t was on 's c a s e . He's a r e a l s t i c k - i n - t h e - m u d . Crime-and-Punishment t y p e . So I s a i d , 'Look, I've g o t t a earn my f e e ; l e t ' s drop the b r e a t h a l y z e r . We'll p l e a d t o the o t h e r one and don't read i n t h i s and t h i s ' . So - f i n e ! I t ' s a l l s e t up - h e ' l l end up w i t h a two hundred and f i f t y d o l l a r f i n e . And so I go t o the guy and t e l l him the d e a l and then say: 'I'd l i k e my f e e , b e f o r e we go any f u r t h e r - r i g h t now.' So then the k i d g e t s upset and s a y s : 'Fuck you, I ' l l do i t m y s e l f .1 So I s a y , 'okay', and go t o t e l l the p r o s e c u t o r t h a t the k i d want t o do i t on h i s own. So the p r o s e c u t o r s a y s , ' A l r i g h t , w e ' l l g i v e i t to him.' And the k i d g e t s over f i v e hundred d o l l a r s i n f i n e s . I t ' s so s t u p i d ; the guy had the bread t o pay me - he was gonna take o f f t o Mexico. As i t was i t c o s t him twice as much as i t would have i f he had r e t a i n e d me. These guys j u s t don't know. A lawyer i s n ' t always good f o r you, but more o f t e n than not you need them and the guy's g o t t a be a b l e to t e l l which times he needs a lawyer and which he d o e s n ' t . They don't r e a l i z e you've been through law s c h o o l w i t h the p r o s e c u -t o r , or a r e buddies w i t h him, or i f n e i t h e r o f the two, you are working companions - t h a t ' s the system. The p r o s e c u t o r understands you have t o earn your f e e . " 71 p o s s i b l e , to a s i t u a t i o n of h o s t i l e n o n - c o o p e r a t i o n , but I would say t h a t n e i t h e r o f these "extremes" are t y p i c a l l y the norm"'". A l t h o u g h , due t o the d i f f e r i n g economic c o n t i n -g e n c i e s (one being s a l a r i e d and the o t h e r n o t ) , more i s a t stake f o r the defense c o u n s e l than f o r the p u b l i c p r o s e c u -t o r , and although the defense lawyer i s l i k e l y t o t r y harder to win; a t the same t i m e , the defense i s not l i k e l y t o "go o v e r b o a r d " . The game r u l e s ( u n w r i t t e n , but u n d e r s t o o d ) , a l l o w the defense to " t r y h a r d e r " , but not t o "p l a y d i r t y " (at l e a s t not i n ways of which the p r o s e c u t o r i s l i k e l y t o be aware). Both p r o s e c u t i o n and defense may use l i t t l e The f o l l o w i n g passage (excerpted from a c o n v e r s a t i o n between Lawyer C and myself) suggests t y p i c a l r e l a t i o n s between defense c o u n s e l and p r o s e c u t o r , and i n d i c a t e c l e a r l y t h a t obvious d e v i a t i o n s from the norm are not t o l e r a t e d : "Most of the p r o s e c u t o r s we have, a l l b u l l s h i t a s i d e , are p r e t t y good guys and t h e y ' r e p r e t t y f a i r guys and t h e y ' r e r e a l l y not concerned about t r y i n g t o get as many c o n v i c t i o n s as they can, but - the p r o s e c u t o r ' s o f f i c e i s p r e t t y good. Sure there's the odd guy - e s p e c i a l l y i n the J u s t i c e D e p a r t -ment. I c o u l d n ' t get the p a r t i c u l a r s from t h i s one guy -Can't remember h i s name. J u s t came over from V i c t o r i a . I got q u i t e i n c e n s e d . I kept t r y i n g f o r days and days and days and then one day, the day b e f o r e the t r i a l , I get the p a r t i c u l a r s , and i n the p a r t i c u l a r s i s t h i s statement t h a t I d i d n ' t know was i n t h e r e and I went over t o get an adjournment and I fought l i k e a b a s t a r d and I t o l d him t h a t I wasn't gonna - i can't even remember the guy's name. I've never d e a l t w i t h him b e f o r e . A p p a r e n t l y he j u s t came. I phoned up , a f r i e n d o f mine - p r o s e c u t o r i n the J u s t i c e Department. He s a i d , 'You know we've got our b l a c k l i s t o f defense l a w y e r s ' . I s a i d , ' F i n e , we've got our b l a c k l i s t of p r o s e c u t o r s * . So when I had the r u n - i n w i t h t h i s guy, I phoned and I s a i d , ' C h r i s t - t h a t guy's a r e a l p r i c k ! ' [laughs] I s a i d , 'He's going i n my b l a c k book! [We laugh] . He s a i d , 'Oh, I ' l l t a l k t o him'. 72 undercover " t r i c k s " , as l o n g as they a r e not d e t e c t a b l e or done i n an o b v i o u s l y h o s t i l e way; and as l o n g as the main game r u l e s a r e not i n f r i n g e d . R e l a t i o n s between defense and p r o s e c u t i o n are n o r -m a l l y governed by a r e s p e c t f u l c o n s i d e r a t i o n of the p o s i -t i o n o f each by the o t h e r ; and b a r g a i n i n g may take p l a c e The f o l l o w i n g passage g i v e examples of t h e s e " t r i c k s " . The f i r s t passage i s from an i n t e r v i e w w i t h a p r o s e c u t o r and the second, from an i n t e r v i e w w i t h a defense lawyer: P r o s e c u t o r C: "There a r e l o t s of l i t t l e t r i c k s we use - l i k e on i d e n t i f y i n g w i t n e s s e s . A p r o s e c u t o r i s u s u a l l y s e e i n g h i s w i t n e s s e s f o r the f i r s t time r i g h t t h e r e i n c o u r t on the t r i a l day. In a c r i m i n a l matter i d e n t i t y i s always i n i s s u e , so you say to the complainant: 'Can you i d e n t i f y him?' O f t e n enough, your wi t n e s s w i l l s ay, 'My god, I c a n ' t ! ' And you say 'Well maybe i f you saw him i n the h a l l s ' . . . a n d you p o i n t out the defense lawyer o r d e s c r i b e the lawyer and say,'Look f o r the guy w i t h t h a t lawyer'. Or w i t h the cops; t h e y ' r e not too l i k e l y t o remember some guy they p i c k e d up two months ago who l o o k s l i k e every o t h e r bum; but cops know enough when they see a young defense lawyer c h a t t i n g away e a r n e s t l y , t h a t the guy he's c h a t t i n g t o i s none o t h e r than the a c c u s e d . Cops a r r i v e e a r l y and check t h i s on the s l y b e f o r e t r i a l . I know t h a t defense lawyers can go to work on my w i t n e s s e s t o o , j u s t b e f o r e t r i a l . A smart p r o s e c u t o r w i l l h i d e h i s w i t n e s s e s . " Lawyer B: "I make a p o i n t of g e t t i n g t o the p r o s e c u -t o r ' s w i t n e s s e s b e f o r e c o u r t . I f i t ' s a layman, I ' l l s a y, 'I hear you're i n on t h i s . Hey, what happened? Is t h a t guy around here? Where? Yeah. You don't know what he l o o k s l i k e ? ' And he's gonna be much l e s s l i k e l y to l i e on the stand when he knows you, you know. Cops a r e p r e t t y good, t o o . T h e y ' l l t a l k t o yuh b e f o r e t r i a l . L e t you know more or l e s s what they've got - w i t h i n l i m i t s . They're p r e t t y goods guys, a l o t of them. So I know p r e t t y w e l l what the p r o s e c u t o r ' s w i t n e s s e s are gonna say b e f o r e they go on." 73 when and i f a p p r o p r i a t e and m u t u a l l y advantageous. J o u s t i n g d u r i n g t r i a l t akes p l a c e w i t h i n the normative l i m i t s o f not doing what i s c o n s i d e r e d as "going too f a r " . For the d e -fense t h i s means, f o r i n s t a n c e , not " c a l l i n g the p o l i c e l i a r s " f o r the p r o s e c u t i o n , i t means, f o r example, not "dragging out the accused's r e c o r d " when not a p p r o p r i a t e ; and f o r both i t means not " t r i p p i n g each o t h e r up on every t e c h -n i c a l i t y i n the book". Ou t s i d e of c o u r t ( t h i s i n c l u d e s d u r i n g c o u r t r e -cesses) r e l a t i o n s are t y p i c a l l y more i n f o r m a l and f r i e n d l y than i n court"'". O f t e n p r o s e c u t o r s and defense lawyers w i l l encounter each o t h e r i n the l u n c h p l a c e s near the p o l i c e c o u r t s (defense lawyers and p r o s e c u t o r s r a r e l y take each ot h e r t o l u n c h , but a r r i v e i n t h e i r own g r o u p s ) ; then they w i l l c a l l out f r i e n d l y g r e e t i n g s and i n s u l t s t o each o t h e r . P r o s e c u t o r s and lawyers are f e l l o w p r o f e s s i o n a l s , o f t e n g r a d u a t i n g from the same law s c h o o l . The nature of t h e i r r e l a t i o n s h i p ( f o r i n s t a n c e , whether they are on f r i e n d -l y terms, o r h o s t i l e terms, or are i n d i f f e r e n t to each o t h e r , or whether each c o n s i d e r s the o t h e r merely p a r t of the job) Grosman t o o , remarks on t h i s : " O p p o r t u n i t i e s f o r nego-t i a t i o n between the defense lawyer and the p r o s e c u t o r on q u e s t i o n s of charge r e d u c t i o n , g u i l t y p l e a s , and o t h e r a v a i l -a b l e a l t e r n a t i v e s a r e c h a r a c t e r i z e d by a f l e x i b i l i t y t h a t does not p r e v a i l a t t r i a l . Once the t r i a l stage i s r e a c h e d , more r i g i d a d v e r s a r i a l p o s i t i o n s are adopted. Fo r the i n f o r m a l i t y of the p r e - t r i a l exchange between the p r o s e c u t o r and defense lawyer i s s u b s t i t u t e d a f o r m a l i t y of p r o t e c t i o n s , p r o c e d u r e s , and c o m p e t i t i v e s p i r i t t h a t i s the hallmark of the a d v e r s a r i a l forum." Grosman, The P r o s e c u t o r , p. 41. 74 p r o b a b l y depends on the " a c c i d e n t s " of t h e i r mutual s o c i a l h i s t o r y such as whether or not they "went t o s c h o o l t o g e t h e r " / or have f r i e n d s i n common/ whether they have been to c o u r t t o g e t h e r b e f o r e , and how i t went. I t may be t h a t lawyer and p r o s e c u t o r are on f r i e n d l y terms, i t may a l s o be t h a t they do not p a r t i c u l a r l y l i k e each o t h e r , or t h a t the day i n c o u r t i s t h e i r f i r s t meeting and the nature of the r e l a t i o n -s h i p i s y e t t o be worked o u t . However, t h a t r e l a t i o n s h i p i s most s i g n i f i c a n t l y governed by the p e c u l i a r i n f o r m a l game r u l e s worked out to mutual b e n e f i t , which ope r a t e a t t h e i r most accommodative when lawyer and p r o s e c u t o r are on good terms, and work c l u m s i l y when p r o s e c u t o r and lawyer are not on good terms. The r e l a t i o n s h i p between p r o s e c u t o r and defense lawyer may a f f e c t the k i n d o f p a r t i c u l a r s the lawyer gets from the p r o s e c u t o r and a l s o how the lawyer t h i n k s about the case r e g a r d i n g expected i n t e r a c t i o n i n c o u r t d u r i n g t r i a l . A p a rt from h i s r e l a t i o n s h i p w i t h the defense lawyer, what may i n f l u e n c e what s t r a t e g y he employs i n g i v i n g the p a r t i c u l a r s and i n making d e a l s p r o b a b l y depends on the p e r s o n a l p o l i c y o f the p a r t i c u l a r p r o s e c u t o r , h i s i n t e r p r e t a t i o n of the p o l i c e r e p o r t , the p o s s i b l e p o l i t i c a l importance of the case and f a c t o r s such as the p o l i c y of h i s o f f i c e toward t h a t p a r t i -c u l a r o f f e n c e ( f o r example, i t may be a case of robbery when the P r o s e c u t o r1 O f f i c e i s " c r a c k i n g down on r o b b e r y " ) . Some p r o s e c u t o r s a p p a r e n t l y have a p o l i c y (with v a r y i n g r a t i o n a l e s ) 75 of g i v i n g " f u l l " p a r t i c u l a r s ; t h a t i s , they read the p o l i c e r e p o r t p r a c t i c a l l y v e r b a t i m ; o t h e r p r o s e c u t o r s l i k e to keep the amount of i n f o r m a t i o n t h a t they rea d from the p o l i c e r e p o r t t o a minimum, t h a t i s , they l e a v e out as many d e t a i l s as p o s s i b l e i n g i v i n g a v e r s i o n t h a t s t i l l "makes sense". In g i v i n g the p a r t i c u l a r s , the p r o s e c u t o r i s a l s o p r o s c r i b e d by how much time he has, what "mood he i s i n " , who he i s t a l k i n g t o a t the other end of the l i n e and how f a s t they are t a k i n g i t down (the f a s t e r they are t a k i n g i t down, the more i n f o r m a t i o n he i s l i k e l y t o g i v e ) . G i v i n g the p a r t i c u l a r s i s regarded as a t e d i o u s task and one t h a t p r o s e -c u t o r s would g l a d l y pass on t o t h e i r s e c r e t a r i e s , but they are r e q u i r e d t o do i t themselves. Most defense lawyers hand the tas k o f t a k i n g down the p a r t i c u l a r s over t o t h e i r s e c r e t a r i e s , even though they r e a l i z e the p r o s e c u t o r i s going t o g i v e " d i f f e r e n t " p a r t i c u l a r s t o a s e c r e t a r y than he would t o the 2 defense lawyer h i m s e l f . I f the p a r t i c u l a r s t h a t a lawyer g e t s i n t h i s way v i a h i s s e c r e t a r y do not "make sense" t o the lawyer, or i f he f e e l s he needs c l a r i f i c a t i o n o r a d d i t i o n a l i n f o r m a t i o n , he may phone up the p r o s e c u t o r and make i n q u i r i e s t h a t w i l l (Prosecutor B d i s c u s s e d the l i k e l i h o o d o f the defense g e t t i n g complete p a r t i c u l a r s as f o l l o w s : ) " . . . A c t u a l l y , p r o s e c u t o r s are more l i k e l y than not to g i v e f u l l p a r t i c u l a r s , because the b e t t e r you make your case sound, the more l i k e l y i t i s t h a t the defense lawyer w i l l be s h i t t i n g h i m s e l f a t the ot h e r end of the l i n e and t h i n k i n g he'd b e t t e r cop f o r the g u i l t y p l e a . " 2 For d i s c u s s i o n o f t h i s p o i n t see p r e v i o u s f o o t n o t e on p. 58 of t h i s c h a p t e r . 76 change and/or expand the p a r t i c u l a r s ; however, the v e r s i o n t h a t the lawyer r e c e i v e s and u s u a l l y a c cepts "as i t i s " ^ " i s a v e r s i o n t h a t i s , to a v a r y i n g e x t e n t , incomplete i n compa-r i s o n w i t h the p o l i c e r e p o r t from which i t came. Lawyers a r e not unaware of t h i s , but u s u a l l y f e e l t h a t most o f the p a r t i -2 c u l a r s t h a t they r e c e i v e are adequate f o r the purpose a t hand For the most minor c r i m i n a l L e g a l A i d c a s e s , the lawyer i s not l i k e l y to "go out of h i s way" i f he can a v o i d i t , b e c a u s e , as we have e x p l a i n e d above, i t does not pay, s i n c e h i s p r a c t i c e i s geared t o g i v i n g summary a t t e n t i o n t o a h i g h volume of r o u -t i n e l y handled c a s e s . 2 Lawyer G (Senior Defense C o u n s e l , f i v e y e a r s c a l l e d ) : " F i r s t I had my s e c r e t a r y take the p a r t i c u l a r s because she can do the f u l l c o n v e r s a t i o n i n shorthand and I c a n ' t . But a f t e r a w h i l e I s t a r t e d t a k i n g them myself f o r important c a s e s , because I f e l t I missed too much - you don't get the whole nuance of the t h i n g when you're r e a d i n g someone e l s e ' s w r i t -t e n word, r a t h e r than i n immediate c o n v e r s a t i o n w i t h the guy y o u r s e l f . But I j u s t c o u l d n ' t keep up w i t h t a k i n g them my-s e l f - and I'm back t o l e t t i n g the s e c r e t a r y do i t . " Lawyer H ( P r a c t i c e d as defense c o u n s e l f o r f i v e y e a r s , then p r o s e c u t e d f o r two y e a r s and i s r e c e n t l y back t o doing defense work): "Knowing how much lawyers miss when they l e t t h e i r s e c r e t a r i e s take t h e i r p a r t i c u l a r s , I swore as soon as I went i n t o p r a c t i c e , I would take my own, but I seldom do, I j u s t don't have the t i m e . But sometimes I use t h i s l i t t l e machine (dictaphone) and I s a y , 'Okay, George, you can go as f a s t as you l i k e , my machine's on'. Then I know h e ' l l g i v e me the whole t h i n g , because he's not cut down by the time i t takes you to get i t down. A c t u a l l y , as an ex-prosecutor I get p r e t t y good p a r t i c u l a r s ; and what's more, I know what t h e y ' r e r e a d i n g from and how to s i z e up p o l i c e r e p o r t s . O r d i -n a r i l y t h e y ' l l never t e l l you the name of the p o l i c e o f f i c e r , but t h e y ' l l t e l l me - and i f I've never heard of the o f f i c e r , I ' l l say, 'What's he l i k e - I don't remember him?1 And the prosecutor'11 s a y , 'Oh, he's good' or 'He's weak' or 'He's not bad'. And I ' l l ask them about the l a b r e p o r t -'Do you have i t ? ' 'Is i t p o s i t i v e or n e g a t i v e ? ' 'Can you f i n d out? W i l l you phone back and l e t me know?' I f you haven't been a p r o s e c u t o r you p r o b a b l y don't know these t h i n g s . " 77 g i v e n the u s u a l p r e s s u r e s of work l o a d and the lawyer's i n t e r e s t i n the p a r t i c u l a r case as such. Lawyers know t h a t even f u l l o r complete p a r t i c u l a r s r a r e l y g i v e the "whole s t o r y " t h a t w i l l be t o l d by p o l i c e or complainant i n c o u r t ; and s o , take t h i s c o n s i d e r a t i o n i n t o account i n a s s e s s i n g the p a r t i c u l a r s and i n comparing them w i t h the c l i e n t ' s s t o r y : Lawyer C: P o l i c e p a r t i c u l a r s o n l y r e a l l y g i v e you an i n d i c a t i o n of how s t r o n g o r weak the Crown's case i s - because r a r e l y have I ever seen the p o l i c e p a r t i c u l a r s c o i n c i d e w i t h the evidence i n a l l . So f a r I have d i s c u s s e d f a c t o r s i n the events p r e c e d i n g the c l i e n t1s c o n t a c t w i t h the lawyer t h a t w i l l a f f e c t the course of the i n t e r v i e w between lawyer and c l i e n t . B e f o r e I go on t o d i s c u s s the f a c t o r s i n the events t h a t are expected to f o l l o w the i n t e r v i e w , i t w i l l be u s e f u l to d i s c u s s the c l i e n t ' s p o s i t i o n v i s - a - v i s the lawyer i n the l i g h t of the p r a c t i c a l i m p e r a t i v e s o f t r i a l p r e p a r a t i o n . In d e c i d i n g "what t o do w i t h the c a s e " , the lawyer works w i t h a j u x t a p o s i t i o n o f h i s i n t e r p r e t a t i o n of the p a r t i c u l a r s and h i s i n t e r p r e t a t i o n o f what the c l i e n t has to say about the p a r t i c u l a r s along w i t h h i s assessment of 78 the c l i e n t i n terms of h i s p r o b a b l e demeanour and p r e -s e n t a t i o n i n c o u r t - a l l i n the l i g h t o f how the p r o b a b l e f a c t s (what the evidence on both s i d e s i s l i k e l y t o be) " f i t i n w i t h the law" and i n the l i g h t of what he assumes w i l l be the i n t e r p r e t a t i o n l a t i t u d e (or p r o b a b l e " p r e j u -d i c e " ) of the judge i n making the f i n a l judgment. Be f o r e we d i s c u s s the e f f e c t o f what the lawyer t h i n k s i s l i k e l y t o happen i n c o u r t , we w i l l c o n s i d e r c e r t a i n f e a t u r e s of the r e l a t i o n s h i p between lawyer and c l i e n t . I l l RELATIONSHIP BETWEEN LAWYER AND CLIENT: The lawyer i s l i k e l y t o be on f r i e n d l i e r terms w i t h For an i n t e r e s t i n g d i s c u s s i o n of demeanour i n c o u r t , see G i l l i a n M. W i l d e r , "The Witness i n C o u r t : Problems o f Demeanour i n the Courtroom S e t t i n g " , u n p u b l i s h e d M.A. T h e s i s , The U n i v e r s i t y o f B r i t i s h Columbia, 1969). 79 h i s c l i e n t ' s " o p p o s i t i o n " than w i t h h i s c l i e n t . There i s u s u a l l y a " n a t u r a l " s o c i a l d i s t a n c e between c r i m i n a l lawyers and t h e i r c l i e n t s . I t i s my i m p r e s s i o n t h a t lawyers do not as a r u l e get p e r s o n a l l y concerned about c l i e n t s i n c r i m i n a l c a s e s ; t h a t i s , they T h i s , however, i s more l i k e l y than not t o work t o the advantage of the a c c u s e d , s i n c e i t i s l i k e l y t o make the " b a t t l e " i n c o u r t more accommodative. The l a t t e r s i t u a t i o n u s u a l l y works more t o the advantage o f the defense than p r o s e c u t i o n , s i n c e the onus i s on the p r o s e c u t i o n to prove g u i l t beyond a r e a s o n a b l e doubt. As i n the f o l l o w i n g example, the c l i e n t h i m s e l f may see f r i e n d l y r e l a t i o n s be-tween lawyer and p r o s e c u t o r working t o h i s advantage, though i n t h i s i n s t a n c e c l i e n t and lawyer have d i f f e r i n g i d e a s as t o what would be t o the c l i e n t ' s advantage.-Lawyer B; I know I g o t t a phone the p r o s e c u t o r and I'm not gonna get i n t o t h a t k i n d a d i s c u s s i o n w i t h him, because i t1s got n o t h i n g t o do w i t h the case tomorrow - a b s o l u t e l y n o t h i n g . C: You - d i d you go to s c h o o l w i t h the p r o s e c u t o r ? L: Sure I went t o s c h o o l w i t h him. I know most of the p r o s e c u t o r s . C: What ki n d a guy i s he? Is he a sharp guy? L: Umn. He does a j o b . Sure - he does a j o b . C: When you uh, c a l l the uh, p r o s e c u t o r t o n i g h t , uh, c o u l d umm, you l a y on him something t o the e f f e c t t h a t , uh - I t h i n k t h a t uh - t h i s i s a f a r c e . You don't haveta use t h a t language - be more d i p l o m a t i c . (The lawyer ends up t e l l i n g the c l i e n t he w i l l not b a r g a i n f o r him w i t h the p r o s e c u t o r , because, i n t h i s i n s t a n c e the case d i d not m e r i t i t , and t h a t he i s not going to waste the p r o s e c u t o r ' s t i m e , j u s t t o make the c l i e n t f e e l b e t t e r . ) 80 r a r e l y take a p e r s o n a l i n t e r e s t i n the c l i e n t h i m s e l f , and t r e a t the case as a p i e c e of b u s i n e s s1 h o p e f u l l y to be c o n -ducted i n a manner t h a t w i l l h e l p b u i l d r e p u t a t i o n and p r a c -t i c e , and i n g e n e r a l , be p r o f i t a b l e i n the sense t h a t i t does not take up too much time per d o l l a r s coming i n v i a the f e e ; nor do they i n t e r a c t w i t h the c l i e n t above and beyond the c a l l of g e t t i n g h i s s t o r y and sometimes coaching him somewhat f o r the w i t n e s s box. ( T h i s , I am t o l d , i s i n c o n t r a s t t o lawyers d e a l i n g mostly i n c i v i l , e s p e c i a l l y c o r p o r a t e , c a s e s , where lawyer and c l i e n t f r e q u e n t l y go out to l u n c h t o g e t h e r , and, a p a r t from t h e i r b u s i n e s s i n t e r -a c t i o n s , may become s o c i a l f r i e n d s . ) A t the same t i m e , though, a young lawyer d o i n g c r i m i n a l work may be p e r s o n a l l y concerned t o see t h a t the "down-and-outs" get a f a i r e r shake (than i s u s u a l l y t h e i r l o t i f they are not r e p r e s e n t e d by a l a w y e r , or have r e t a i n e d a more "case-hardened" l a w y e r ) . In law s c h o o l students are s p e c i f i c a l l y warned o f the dangers of p e r s o n a l involvement w i t h c l i e n t s . The f o l l o w -i n g e x c e r p t i s from a young lawyer's law s c h o o l notes from a l e c t u r e on L e g a l E t h i c s by R e g i n a l d H. Tupper, Q . C , Act  and R u l e s , (Handbook of the Law S o c i e t y of B r i t i s h C olumbia), p. 3: "The lawyer should adopt T e r r e n c e ' s motto - n o t h i n g human i s f o r e i g n t o me. And he can p r a c t i c e as w e l l and as u s e f u l l y amongst the dregs o f humanity as w e l l as amongst the f r o t h on s u r f a c e o f s o c i e t y . But he i s unwise i f he a l l o w s h i s r e l a t i o n s h i p w i t h h i s c l i e n t s i n any p l a c e i n l i f e t o become oth e r than a p r o f e s s i o n a l one, when engaged about t h e i r b u s i n e s s . More than one b r i g h t young lawyer has l o s t h i s r i g h t t o p r a c t i c e i n t h i s p r o v i n c e because h i s a s s o c i a t i o n s w i t h h i s c l i e n t s made him f o r g e t or i g n o r e h i s duty as a lawyer." 81 But t h i s i s not an i n t e r e s t t h a t l e a d s the lawyer to a p e r s o n a l concern about the i n d i v i d u a l c l i e n t - - o n l y about the cases i n g e n e r a l , as cases,"'" - the c l i e n t b e ing a s o r t of " s t a t i s t i c " w i t h i n the c a s e . The book of e t h i c s puts the lawyer's f i r s t duty as a duty to do the b e s t he p o s s i b l y can ( w i t h i n the r e s t r i c -t i o n s o f the framework of the l e g a l system) f o r h i s c l i e n t . The f o l l o w i n g passage from Boswell's Johnson i l l u s -t r a t e s one a s p e c t of the p r o f e s s i o n a l a t t i t u d e of the lawyer: B o s w e l l : "But s i r , does not a f f e c t i n g warmth when you have no warmth, and appearing to be o f one o p i n i o n when you are i n r e a l i t y o f another o p i n i o n , does not such d i s s i m u l a t i o n i m p a i r one's honesty?" Johnson: "Why no s i r , everybody knows you are p a i d f o r a f f e c t i n g warmth f o r your c l i e n t and i t ' s t h e r e f o r e p r o p e r l y no d i s s i m u l a t i o n - the moment you come from the b a r , you resume your normal behaviour." B o s w e l l : "But what do you t h i n k o f s u p p o r t i n g a cause which you know t o be bad?" Johnson: " S i r , you do not know i t t o be good or bad t i l l the judge determines i t . I have s a i d you are to s t a t e the f a c t s f a i r l y ; so t h a t your t h i n k i n g , or what you c a l l knowing a cause to be bad from r e a s o n i n g , must be from your supposing your arguments to be weak and i n c o n c l u s i v e . But s i r , t h a t i s not enough. An argument which does not con-v i n c e y o u r s e l f may convince the judge t o whom you urge i t and i f i t does c o n v i n c e him, why then s i r , you are wrong and he i s r i g h t . I t i s h i s b u s i n e s s t o judge and you are not to be c o n f i d e n t i n your o p i n i o n t h a t a cause i s bad, but t o say a l l you can f o r your c l i e n t and then hear the judge's o p i n i o n . " From Boswell's Johnson as quoted i n Edward A. P a r r y , The Seven Lamps Of Advocacy, (London: Unwin, 1923), pp. 17-18. 82 This ends up meaning that, as a p r a c t i c a l matter, the lawyer puts the c l i e n t ' s best i n t e r e s t s f i r s t within the l i m i t s of how far he sees the c l i e n t ' s best i n t e r e s t s to coincide with what the lawyer f e e l s are his own best i n t e r e s t s . The c l i e n t as a person (rather than as a case) i s l i k e l y to be unimportant to the lawyer, and may even be considered merely a pawn i n the game of winning i n court"1' and b u i l d i n g up a p r a c t i c e . Bluntly put, the lawyer's i n t e r e s t i n the c l i e n t i s usually confined to how the c l i e n t can help the lawyer get up his case. Just as doctors are often said to be more interested i n the diagnosis of ailments than i n the people who possess them; so too, the lawyer d i r e c t s his i n t e r e s t to the case rather than to the person i n trouble. If a criminal lawyer took a sincere This view i s apparent i n the following excerpt from an interview with a young defense lawyer: Lawyer E: "Ultimately what matters to me - and I think t h i s i s true of most lawyers, though only the younger ones w i l l admit i t - i s what goes on i n my own head - my own view of myself. I'm f a i r l y highly ego-involved to begin with. What matters to me i s how well I perform. We're a l l play-ing a complicated game - the prosecutor, lawyer and the judge. What matters to me i s the mental stimulus - playing the game well. When i t r e a l l y comes r i g h t down to i t , the accused i s j u s t a pawn i n the game - for a l l of us." 83 p e r s o n a l i n t e r e s t i n each c l i e n t as a s p e c i a l person i n t r o u b l e , he would be unable to meet the p r a c t i c a l time Grosman quotes the p r o s e c u t o r s i n h i s study as under-s t a n d i n g t h i s phenomenon: "'You can't i d e n t i f y y o u r s e l f w i t h each case and you can't i d e n t i f y y o u r s e l f w i t h each accused. You've got t o keep a detached view of the whole t h i n g . ' Another s a i d , 'You t r y not t o get worked up about the case...you can't get e m o t i o n a l l y i n v o l v e d or you would go s q u i r r e l y1" . Grosman, The P r o s e c u t o r , p. 87. "Those who have been a r r e s t e d a r e presumed g u i l t y and i t i s the p r o s e c u t o r ' s duty to process them. He p r o c e s s e s them as bodies r a t h e r than as i n d i v i d u a l s . C o n s i d e r a b l e remoteness from the accused and h i s p l i g h t i s c u r r e n t and, i n d e e d , i s encouraged as a h e a l t h y p r o -f e s s i o n a l adjustment: 'The accused man? You c o u l d n ' t c a r e l e s s a f t e r a w h i l e . I t ' s p r e t t y hard to work up much enthusiasm a f t e r your t w e n t i e t h i n d e c e n t a s s a u l t i n a row. You get d u l l and s t a l e and the accused i s j u s t another f a c e i n the crowd. He i s number 656 on the l i s t . ' " I b i d , p. 58. 84 and e f f i c i e n c y demands of h i s job . In order to perform as c a l c u l a t i n g t e c h n i c i a n s i n the law and i n the a r t o f p e r s u a s i o n d u r i n g t r i a l , i t i s b e t t e r f o r the lawyer to be f r e e of any n o n - p r a c t i c a l non work-oriented involvement w i t h the c l i e n t as a p e r s o n a l i t y . Each lawyer I t a l k e d to mentioned, whether m a t t e r - o f - f a c t l y or r e g r e t f u l l y t h a t he had e i t h e r t o b e g i n w i t h , or developed "along the way" as n e c e s s a r y t o h i s working c o n d i t i o n s , a v e r y pragmatic 2 a t t i t u d e toward c r i m i n a l c l i e n t s - who are b e s t kept a t S t u d i e s of w e l f a r e and n u r s i n g s e t t i n g s suggest t h a t a concern w i t h the person a t the expense of "the p r a c t i c a l i t i e s " marks one as the r a n k e s t of n o v i c e s , one who has a l o t to l e a r n , e t c . : "A worker honoring a h a s t y , l a s t minute appeal f o r c a r f a r e without checking the s t o r y would be seen to have d i s r e g a r d e d the e x i s t e n c e of r e a d i l y a v a i l a b l e r o u t i n e p r o -cedures which would v e r i f y the ' f a c t s ' , f o r example, r e f e r -ence to the case r e c o r d , c a l l i n g the d o c t o r . The moral l e s s o n f o r the worker i s : t o permit what would be d e f i n e d i n the s e t t i n g as a p p l i c a n t ' m a n i p u l a t i o n ' of the agency (e.g., l a s t - m i n u t e , urgent demands presumably intended to make advantageous use of a l i m i t e d time f o r d e c i s i v e a c t i o n ) would be t o mark o n e s e l f as the r a n k e s t n o v i c e . Not o n l y i s ' s k e p t i c i s m ' (that i s , r e l i a n c e on methods of v e r i f i c a t i o n p r i o r t o commitment of b e l i e f or a c t i o n ) of t h i s s o r t a c h a r a c t e r i s t i c modus op e r a n d i and scheme of i n t e r p r e t a t i o n of the ' o l d hand', i t i s f r e q u e q u e n t l y j u s t i f i e d , as i n t h i s c a s e . . . . " Don H. Zimmerman,"Record-Keeping and the I n -take Process i n a P u b l i c Welfare Agency", i n Stanton Wheeler, Ed., On Record, (New York: R u s s e l l Sage F o u n d a t i o n , 1969), p. 332. This sort of attitude i s evidenced i n the following exchange between two defense lawyers: 85 L I (Lawyer D): "I used t o l i s t e n t o t h e i r s t o r y and s a y , 1 Oh, too bad, awh, e x c e l l e n t , good!' But now I get r i g h t down t o the c r u c i a l p o i n t s and s a y , 'No-one's gonna b e l i e v e t h a t ! ' " L2 (Lawyer B ) : "You know, I'd l i k e t o b e l i e v e everyone who comes i n t o t h i s o f f i c e , I r e a l l y would, but!" L l : "Yeah, s u r e , so would the judge, I'm s u r e . I t ' s a n i c e w o r l d , nobody ever does any harm - we'd a l l l i k e i t to be t h a t way!" L2: "You don't go t o a d e n t i s t t o make f r i e n d s w i t h him - you go to a d e n t i s t because you want something done to your t e e t h . And so I c e r t a i n l y f e e l I have no compulsion a t a l l t o emit anything i n the way o f p a r t i c u l a r warmth towards c l i e n t s . I t h i n k i t ' s important to keep a c l i e n t e l e t o emit some aura of i n t e r e s t i n t h e i r case; and some aura of competence about what's going on. You should be a b l e t o do t h a t , t h a t ' s what your job i s - to be a b l e to a t t a c k i t i n a v e r y competent f a s h i o n - to cut out the b u l l -s h i t , get r i g h t down to i t : 'You're i n my o f f i c e , i t ' s g o i n g to c o s t you money w h i l e you're here - one way or the o t h e r ; so I'm going t o get r i g h t down t o the f a c t s , t h a t ' s a l l . I don't care i f your mother's got lumbago o r not! I c o u l d n ' t g i v e a damn! I t ' s not gonna h e l p your c a s e , and i t s gonna c o s t - ' " P: " I t might be dangerous i f you l e t him t h i n k t h a t you're f i g h t i n g f o r him, r a t h e r than j u s t d e a l i n g w i t h h i s c a s e , as a case." L2: "Sure! E x a c t l y ! That's why i t was murder! I t was so bloody hard on my nerves d o i n g t h a t case f o r my f a t h e r ! A l l out of p r o p o r t i o n ! I t ' s insane! Somebody comes t o me as a lawyer - and I take t h e i r case on - I want t o do what I c o n s i d e r to be a good job f o r them i n my terms, i n my terms - not i n t h e i r terms. I'm not a p s y c h i a t r i s t , I'm not a s o c i a l worker, I'm a p r o b l e m - s o l v e r i n the law - t h a t ' s a l l . " 86 arm's l e n g t h and d e a l t w i t h e f f i c i e n t l y i n terms of the p r a c t i c a l problem a t hand of d i s p o s i n g of the case i n the way t h a t he e s t i m a t e s w i l l have the b e s t chance of a v o i d i n g or m i n i m i z i n g the l i k e l y s e n t e n c e . Though the c r i m i n a l defense lawyer i s l i k e l y t o r e g a r d h i s c l i e n t e l e as h i s s o c i a l and i n t e l l e c t u a l i n f e r -i o r s , he does not take a moral stance and would r a t h e r see h i s c l i e n t "get o f f " than go t o j a i l . The young defense lawyer i s l i k e l y to have some s o r t o f g e n e r a l i z e d sympathy (seldom expressed i n i n d i v i d u a l cases) f o r h i s c l i e n t s as people who are c o n s t a n t l y g e t t i n g i n t o t r o u b l e w i t h the p o l i c e f o r behaviour t h a t may be condoned i n the c l i e n t ' s own s o c i a l groups, though not i n the l a r g e r s o c i e t y ; t h a t i s , o f f e n c e s such as s h o p l i f t i n g , common a s s a u l t , v agrancy, drug charges'*". Cases as such a r e more or l e s s d e s i r a b l e t o One lawyer t h a t I i n t e r v i e w e d expressed h i s views about types of o f f e n c e s t h i s way: Lawyer I: "I have t h r e e c l a s s -i f i c a t i o n s : I c l a s s i f y them v i a how I f e e l about them. There are some c r i m i n a l o f f e n c e s which I don't f e e l a r e immoral. These are o f f e n c e s l i k e s h o p l i f t i n g . The guy who r i p s o f f the department s t o r e hasn't got a dime, w h i l e the s t o r e i s making huge p r o f i t s on m i l l i o n s of people j u s t l i k e him. But t h e r e are o f f e n c e s which I do c o n s i d e r to be immoral and these are o f f e n c e s which i n v o l v e v i o l e n c e - t h i n g s l i k e murder and r a p e . I f someone rapes a seven-year o l d k i d , a l l you can do i s send them t o p r i s o n or an asylum. There are o f f e n c e s which I c o n s i d e r t o be ' j u s t a j o b ' : I have no s t r o n g f e e l i n g s f o r the i n d i v i d u a l or f o r what he's done. L i k e a s k i d row robbery." 87 lawyers depending on how much money they b r i n g i n , how easy they are to handle (that i s ; f o r i n s t a n c e , how much l i b r a r y or desk work i s i n v o l v e d , the degree of p o t e n t i a l c o m p l i c a t i o n i n the case as a c a s e , the emotional a t t i t u d e T h i s i s r e l e v a n t f o r i n s t a n c e i n custody cases where the c l i e n t i s l i k e l y t o be v e r y upset and " i r r a t i o n a l " and d i f f i c u l t to manage. T h i s s o r t of case i s regarded as "messy" by the lawyer. The f o l l o w i n g anecdote d i s p l a y s the lawyer's a t t i t u d e t o " e m o t i o n a l l y i n v o l v e d " c a s e s . I t i s excerpted from my f i e l d n o t e s : (December 24, 1970, I came i n t o the law o f f i c e s t o hear sounds o f pounding, s t r i f e , and r a i s e d v o i c e s from one of the o f f i c e s . One of the p a r t n e r s who i s p a c i n g around i n the r e c e p t i o n a r e a g r e e t s me with:) L . l (Lawyer B ) : "We've got a l i v e one i n t h e r e ! " P: "Who? Some robber j u s t sprung from j a i l ? " L . l : "No, i t ' s a l a d y . " P: "What! . . . Custody?" L . l : "Right!" (Seconds l a t e r a w e l l - d r e s s e d and p h y s i c a l l y u n r u f f l e d l a d y stormed out of the o f f i c e s h o u t i n g o b s c e n i t i e s at the law-yer who i s s i l e n t l y f o l l o w i n g her w i t h a shocked e x p r e s s i o n . She c o n t i n u e s on her way out of the o f f i c e s h o u t i n g o b s c e -n i t i e s at the top of her v o i c e as she goes down the s t a i r s . A f t e r she has l e f t the lawyer i n v o l v e d comments as f o l l o w s : ) L.2 (Lawyer D) : "That son of a b i t c h [[another lawyer__] sends me a maniac the day b e f o r e Christmas! some joke! She wants somebody to go out and a r r e s t her husband! Qier r e g u l a r lawyer] made sure he wasn't around, so [ h i s partner] sent her t o me. The husband has custody o f the k i d . You can understand i t , w i t h Christmas coming up and a l l , she wants her k i d back. I was r e a s o n a b l y t r y i n g t o show her t h a t n o t h i n g c o u l d be done at t h a t v e r y moment and what we would have t o go through to do something about i t . But t h e r e was no way you c o u l d get through t o h e r . She1s have n o t h i n g but an imme-d i a t e a r r e s t . " 88 of the c l i e n t ) ; or how mentally stimulating they are (for instance, whether or not the case involves unusual circumstances c a l l i n g for innovation i n argument i n the law); or perhaps how p o l i t i c a l l y advantageous (career-wise) they might be - depending on the p a r t i c u l a r prefer-ences of the i n d i v i d u a l lawyer. We see then that the lawyer's a t t i t u d e to the c l i e n t i s business-like and "professional"; however, the c l i e n t ' s perspective i n the interview i s l i k e l y to be somewhat d i f f e r e n t from the lawyer's. Since I d i d not interview c l i e n t s , but only lawyers, I am unable to describe with confidence what I f e e l i s the c l i e n t ' s perspective, except as i t i s evidenced i n the interview i t s e l f ; (this w i l l be discussed i n d e t a i l i n Chapters Three and Four). I am able to state, though, what the lawyer sees as the c l i e n t ' s perspective, but t h i s should perhaps be regarded as saying something about the lawyer, rather than about the c l i e n t . A frequent complaint of lawyers about c l i e n t s i s that they t r y to use the lawyer as a "sounding board": Lawyers f e e l that the c l i e n t i s l i k e l y to come into the interview with an "axe to grind", and to look upon the interview as a sort of catharsis session session i n which he t r i e s to expose his gripes about such things t y p i c a l l y as b r u t a l p o l i c e treatment, the trouble that his arrest has got him into at work and at home, the f a c t that he i s 89 " r e a l l y " c o m p l e t e l y innocent and everybody i s "out t o get him", and so on. However, emergencies i n o t h e r people's l i v e s are merely t o lawyers g r e a t e r or l e s s e r r o u t i n e p r o b -lems to be s o l v e d i n the law"*". A lawyer's a t t i t u d e t o g e t t i n g up a d i v o r c e p e t i t i o n o r working out defenses to a murder charge i s u s u a l l y much the same as the a t t i t u d e of 2 Sudnow's morgue a t t e n d a n t s t o wrapping a dead body: I t i s unique o n l y i n s o f a r as i t p r e s e n t s p a r t i c u l a r problems i n wrapping. The dead body i s not an o b j e c t of awe or f e a r or dread to the morgue a t t e n d a n t as i t would be t o the l a y -man t h e r e f o r the f i r s t t i m e . So a l s o the anguished d i v o r c e p e t i t i o n e r or d e s p e r a t e accused murderer i s normally t o the lawyer more or l e s s merely a datum i n the never-E v e r e t t Hughes d i s c u s s e s t h i s problem i n Men and T h e i r  Work: " . . . t h i s i s the problem o f r o u t i n e and emergency. In many o c c u p a t i o n s , the workers or p r a c t i t i o n e r s (to use both a lower and h i g h e r s t a t u s term) d e a l r o u t i n e l y w i t h what are emergencies to the people who r e c e i v e t h e i r s e r v i c e s . T h i s i s a source of c h r o n i c t e n s i o n between the two. For the person w i t h the c r i s i s f e e l s t h a t the o t h e r i s t r y i n g t o b e -l i t t l e h i s t r o u b l e ; he does not take i t s e r i o u s l y enough. His v e r y competence comes from having d e a l t w i t h a thousand cases of what the c l i e n t l i k e s to c o n s i d e r h i s unique t r o u b l e . The worker t h i n k s he knows from long e x p e r i e n c e t h a t people exaggerate t h e i r t r o u b l e s . He t h e r e f o r e b u i l d s up d e v i c e s to p r o t e c t h i m s e l f , t o s t a l l people o f f . " E v e r e t t C. Hughes, Men and T h e i r Work, (Glencoe, 111.,: The Free P r e s s , 1958), p. 54. 2 . D e s c r i b e d i n Sudnow, P a s s i n g on: The S o c i a l O r g a n i - z a t i o n of D y i n g , pp. 77-89. 90 ending round of routine cases to be got through . People i n trouble with the law are l i k e l y to be people with problems i n general - people ready to "latch onto" any h a l f - w i l l i n g ear, (as I constantly found i n my capacity as "secretary", when c l i e n t s waiting to be i n t e r -viewed by a lawyer, would, unprovoked, pour out t h e i r gripes and troubles to me). But i f they do not sense i t to begin with, c l i e n t s soon f i n d out that most lawyers l i k e to get down to business and are not very sympathetic when i t comes to the question of l i s t e n i n g to what the lawyer considers to be t h e i r i r r e l e v a n t woes. The lawyer w i l l allow the c l i e n t to "ramble on about h i s woes" only to the extent that he f e e l s i t w i l l a i d i n the p r a c t i c a l matter of accomplishing the business at hand; that i s , of finding out what the c l i e n t ' s l e g a l s i t u a t i o n i s l i k e l y to be and what i s the best way of handling his case. Some lawyers f e e l that l e t t i n g the c l i e n t ramble on within l i m i t s makes i t Other researchers have commented on t h i s a t t i t u d e : "Clients are expendable. Under these conditions when a lawyer receives a c l i e n t from a layman or a r e f e r r i n g law-yer; he has not so much gained a c l i e n t as a piece of business and h i s a t t i t u d e i s often that of handling a par-t i c u l a r piece of merchandise or of developing a volume of a c e r t a i n kind of merchandise." C a r l i n , Lawyers on Their Own, p. 162. 91 e a s i e r t o get the f a c t s of the s t o r y because i t puts the c l i e n t s a t ease and because they f e e l t h a t c l i e n t s are l i k e l y t o i n c l u d e some r e l e v a n t f a c t s here and t h e r e among the i r r e l e v a n t ones; but most lawyers f e e l t h a t i t i s best t o "keep the b u l l s h i t t o a minimum"; (that i s , to take a v e r y d i r e c t i v e as opposed to n o n - d i r e c t i v e a p p r o a c h ) . I f the lawyer f e e l s t h a t the c l i e n t i s not t e l l i n g h i s s t o r y e f f i c i e n t l y , the lawyer w i l l d i s c o u r a g e c l i e n t i n i t i a t i v e and e l i c i t the s t o r y v i a h i s own w e l l - d i r e c t e d q u e s t i o n s as one does i n c r o s s - e x a m i n a t i o n ^ . In the f o l l o w i n g passage Lawyer J d i s c u s s e s the m e r i t of t h i s s t r a t e g y : "I am always l o o k i n g f o r the d e f e n s e ; sometimes you spot i t r i g h t away; oth e r times i t takes a l o t o f work. Anyway I look f o r the defense and t r y to d i -r e c t the c l i e n t i n t h a t r e s p e c t . I t r y hard t o be s t r a i g h t -f o r w a r d . I know what I want and I t r y to get i t f a s t . I f the c l i e n t gets o f f the t r a c k , I j u s t c u t him o f f ; but I always t r y t o come back t o the human i n t e r e s t t h i n g . I get my f a c t s and then I l e t them t a l k . I always t r y t o l e t them t a l k . They r e a l l y a p p r e c i a t e i t . I t ' s worth my t i m e . I t r e a l l y h e l p s the guy. A l l I do i s l e t him t a l k f o r a w h i l e and he f e e l s b e t t e r . " 2 Not a l l lawyers t a l k about t h e i r a t t i t u d e t o the c l i e n t i n t h i s way; t h a t i s , they say they do not r e g a r d the c l i e n t as someone who i s u n l i k e l y to be much h e l p i n g e t t i n g up the case u n l e s s he i s kept i n l i n e and who should be d e a l t w i t h e f f i c i e n t l y and s t e r n l y . The f o l l o w i n g e x c e r p t i s from one of my i n t e r v i e w s w i t h a h i g h l y thought-of young lawyer (Lawyer K ) , who, a f t e r h i s f i r s t year o f p r a c t i c e , no l o n g e r had to r e l y on L e g a l A i d (who i n d i c a t e d unusual c o n f i d e n c e i n him by a l l o w i n g him to conduct a mur-der t r i a l i n the second year of p r a c t i c e ) : "Most lawyers keep the c l i e n t i n the d a r k . I t i s a b e t t e r e x p e r i e n c e from the c l i e n t ' s p o i n t of view i f you l e t him i n on what you're d o i n g . I t d e m y s t i f i e s the law. I t ' s b e t t e r f o r the c l i e n t e m o t i o n a l l y . Makes the e x p e r i e n c e l e s s f r i g h t e n i n g . Besides he may be a b l e t o do i t f o r h i m s e l f next t i m e . Apart from t h a t , I sometimes p i c k up p i e c e s of s t r a t e g y from the c l i e n t . I f you d i s c u s s the case w i t h the c l i e n t , you may l e a r n t h i n g s . I have used t h i n g s suggested by the c l i e n t . " 92 A l l o f the lawyers I i n t e r v i e w e d were of the o p i n -i o n t h a t most of t h e i r c l i e n t s " a c t u a l l y d i d i t " . T h i s o p i n i o n i s u s u a l l y backed up by r e f e r e n c e t o the b e l i e f t h a t p o l i c e r a r e l y charge "innocent" people and t h a t the p r o s e c u t i o n i s u n l i k e l y t o proceed w i t h the case"*" i f the The p r o s e c u t o r has the o p t i o n o f pr o c e e d i n g or not procee d i n g w i t h a charge once the i n f o r m a t i o n has been sworn. Grosman g i v e s d e t a i l s as f o l l o w s : "The p r o s e -c u t o r ' s f i r s t duty i s t o examine the charge or i n f o r m a t i o n i n o r d e r to make the d e c i s i o n whether t o p r o s e c u t e or n o t . In t h i s way he performs a s c r e e n i n g f u n c t i o n by r e v i e w i n g the s u f f i c i e n c y of the evidence b e f o r e i n i t i a t i n g the p r o s e c u t i o n . The e x e r c i s e o f an independent judgment, i n a d d i t i o n t o the p o l i c e d e c i s i o n to a r r e s t , p r o v i d e s some p r o t e c t i o n a g a i n s t the i n s t i t u t i o n o f unwarranted p r o s e -c u t i o n o r those based on i n s u f f i c i e n t e v i d e n c e . A study of p r o s e c u t i o n s i n the county o f York i n d i c a t e s t h a t i n the m a j o r i t y o f c a s e s , p r o s e c u t o r s do not i n f a c t c o n s i d e r the i n f o r m a t i o n o r the charge u n t i l a f t e r the accused i s a r r a i g n e d b e f o r e the c o u r t . The s u f f i c i e n c y of the e v i -dence a g a i n s t the accused i s o f t e n not reviewed u n t i l the p r e l i m i n a r y h e a r i n g or the t r i a l i t s e l f i s r e a c h e d . The d e c i s i o n , t h e n , t o i n s t i t u t e a p r o s e c u t i o n i s made by the a r r e s t i n g o f f i c e r when he d e c i d e s t h e r e i s s u f f i c i e n t e v i -dence of the commission o f an o f f e n c e t o j u s t i f y an a r r e s t . Thus, p o l i c e d e c i s i o n s to a r r e s t c o n s t i t u t e the e f f e c t i v e d e c i s i o n to i n i t i a t e p r o s e c u t i o n , although the standards j u s t i f y i n g an a r r e s t may d i f f e r s u b s t a n t i a l l y from the standard o f evidence r e q u i r e d to j u s t i f y the i n s t i t u t i o n of a p r o s e c u t i o n . " Grosman, The P r o s e c u t o r , pp. 20-21. I f t h i s i s the case i n the c i t y of t h i s s t u d y , lawyers are not j u s t i f i e d i n t h e i r assumption t h a t cases have been through two s c r e e n i n g procedures b e f o r e a p r o s e c u t i o n i s i n i t i a t e d . My da t a does not a l l o w me t o comment on the p r o s e c u t o r ' s use of d i s c r e t i o n i n i n i t i a t i n g a p r o s e c u t i o n , but I d i d come a c r o s s a few i n s t a n c e s where the p r o s e c u t i o n "stayed" a case, a f t e r the i n i t i a t i o n o f a p r o s e c u t i o n and be f o r e t r i a l , and a few i n s t a n c e s where charges were dropped a t the same s t a g e . ("Staying" a case means not p r o c e e d i n g . T h i s i s i t s t e c h n i c a l meaning, but i n p r a c t i c e i t i s the same as dropping the c h a r g e s , s i n c e a l t h o u g h i n theory when a case i s s t a y ed the p r o s e c u t i o n may a t any time subsequently r e -i n i t i a t e p r o c e e d i n g s , they r a r e l y do reopen a c a s e , once i t has been s t a y e d ) . 93 p o l i c e have obviously been mistaken i n laying a charge. Lawyers f e e l that i f a c l i e n t has passed a l l the "check points" through the p o l i c e and prosecutor's o f f i c e to the lawyer 1s o f f i c e i t i s more l i k e l y than not that he "actu-a l l y d i d i t " . Whether or not he can be t e c h n i c a l l y proved to be " g u i l t y " i s another question and the main one to which the lawyer addresses himself i n assessing the particular's. If the p a r t i c u l a r s represent a strong case against the accused the lawyer i s l i k e l y to be reinforced i n his prejudice regarding the c l i e n t ' s g u i l t . These con-siderations probably underlie the lawyer's notion that c l i e n t s are more l i k e l y to t e l l a "story" (tale) than the "truth" i n the interview. The lawyer reasons that since i t i s natural that the c l i e n t w i l l be concerned to "get o f f as best he can" the c l i e n t w i l l come into the interview with a concern to put his r o l e i n the events i n question i n a "better l i g h t " than he f e e l s the p o l i c e are l i k e l y to. Since the lawyer believes that the c l i e n t a c t u a l l y "did i t " , and wants to "get o f f " 1 , the lawyer f e e l s that the c l i e n t i s l i k e l y to d i s t o r t to some extent what he remembers to have This i s what lawyers take to be the c l i e n t ' s pragmatic operative i n going to a lawyer. Lawyers claim that very few Legal Aid c l i e n t s i n criminal cases are concerned about such things as threat to reputation, because i n t h e i r c i r c l e s "getting into trouble with the law" i s a routine feature of t h e i r l i v e s . I am t o l d that some c l i e n t s may be concerned to l e t the lawyer think they are worried about t h e i r s o c i a l image because they f e e l that that w i l l make t h e i r story sound better to the lawyer. 94 a c t u a l l y happened i n a way that makes i t appear that he, was not g u i l t y of the crime i n question. Although both lawyer and c l i e n t presumably want to try to "beat the rap" or at l e a s t to "get o f f as l i g h t l y as possible", what happens i n the interview i s not a simple matter of lawyer and c l i e n t automatically working e a s i l y together to achieve the end they both d e s i r e . In f a c t , i t i s i n many ways a struggle for the lawyer to get and keep even the most w i l l i n g c l i e n t s on (what i s to the lawyer) the r i g h t track. I t takes much longer and i s more d i f f i -c u l t for the lawyer to get what he needs out of the i n t e r -view i n order to decide what to do with the case, i n i n t e r -viewing the ordinary "layman" c l i e n t ^ , than i f he were interviewing a fellow lawyer as a c l i e n t accused of a crime. This i s so f i r s t because of the obvious diff e r e n c e i n perspective and technical competency of lawyer and c l i e n t . The usual criminal c l i e n t looks on h i s story as showing that he i s innocent; the lawyer i s looking for the t e c h n i c a l l y (in the law) not g u i l t y implications of the s i t u a t i o n . This i s a very important d i s t i n c t i o n : People are acquitted i n the courts not because they are "innocent", "The c l i e n t can seldom state a l l the relevant facts of his problem without prompting and questioning by the lawyer. The lawyer's f u l l e r stock of l e g a l ideas makes c e r t a i n facts which seem to have no s i g n i f i c a n c e to the layman, c r u c i a l to him; and the lawyer sees immediately that other facts which the layman w i l l dwell on i n d e t a i l are immaterial." Morris, How Lawyers Think, p. 35. 95 but because, as a matter of law, they cannot be proved  g u i l t y 1 . In the following excerpt from the t r a n s c r i p t of a t r i a l we see that the judge acquits the accused while b e l i e v i n g that she "actually did i t " : Judge: ...And I think for a l l these reasons I'm l e f t with a doubt i n law and that doubt has to be resolved by law i n favour of the accused. She's acquitted accordingly. Defense Lawyer: Thank you, Your Honour. Judge: Don't do i t again, Miss Lawyer L put t h i s d i s t i n c t i o n very well i n the follow-ing complaint about c l i e n t ' s s t o r i e s : "The accused t e l l s h i s story to show that he's INNOCENT, not, unless he's an old pro, that he i s t e c h n i c a l l y not g u i l t y . I t ' s amazing every goddam time i t happens that a c l i e n t gets o f f , not because he i s innocent - you never get o f f for that - but because he can't be proved g u i l t y , the c l i e n t transposes not g u i l t y at law into being a c t u a l l y innocent. A magnificent jump! Never do they believe t h e i r own s t o r i e s so well as when they get o f f . But the judge decides whether g u i l t y or not g u i l t y not whether innocent or not innocent." The following anecdote (told to me by a friend) n i c e l y shows an example of the judge doing the opposite, that i s , finding someone g u i l t y whom he a c t u a l l y believes not to have "done i t " : "There's a famous story of a judge who one day looking out his window saw a murder - and he t r i e d the case - and the man who was i n the dock was not the man he saw commit the crime, but the evidence was strong enough to make the case, and he sentenced the guy to death, because the case had been made, and he said, 'That's my job'. The case had been made." 96 It i s the lawyer's job to t r y his best to show that his c l i e n t cannot be proved g u i l t y , as a matter of his own arguments i n the law, based on what counts as evidence. However technical the lawyer * s ultimate mode of procedure i n handling the case, he must be able to t a l k to the c l i e n t i n the c l i e n t ' s own language i n order to extract from him the raw material he needs for preparation of the case. Just as a garage mechanic must get from the owner's com-p l a i n t s about his car as symptoms of malfunction to a diagnosis of what i s a c t u a l l y t e c h n i c a l l y wrong with the machine, and how i t can be f i x e d : (The owner w i l l say, "Well I have trouble getting i t started i n the morning". The mechanic, i n order to do his job, must get from here to whether there i s a short c i r c u i t i n the generator or whether the problem i s that the battery i s low, e t c . ) ; so the lawyer must get from his c l i e n t ' s t a l e of woe and outrage to a tec h n i c a l diagnosis"*" of the grounds on which the c l i e n t may be l e g a l l y vulnerable, and, i f , and how, t h i s can be "In the d a i l y routine of l e g a l a n a l y s i s , the lawyer s i f t s the g r i s t of c l i e n t woes to separate contract from no contract, sue from s e t t l e , not g u i l t y from g u i l t y , timely from barred, fee from no fee. In the process the lawyer unconsciously asks himself a hundred questions to focus his accumulated learning on the problem of the moment." David Me l l i n k o f f , The Language of the Law, (Boston: L i t t l e , Brown & Co., 1963), p. 297. 97 remedied i n c o u r t . In a d d i t i o n t o a s k i n g informed and p u r p o s e f u l l y and s p e c i f i c a l l y p e r t i n e n t q u e s t i o n s i n the language of the layman - but addressed t o h i s own t e c h n i c a l ends - the mechanic has a v a i l a b l e t o him l i f t i n g the hood and examining the b a t t e r y and g e n e r a t o r ; and the lawyer can open up h i s case book of precedents and work through arguments. The lawyer i s possessed of a v e r y s p e c i a l i z e d "stock-of-knowledge-at-hand"1, composed of a l l the l e g a l f a c t s , p r e c e d e n t s , r u l e s and l o r e t h a t he has a s s i m i l a t e d as a student and p r a c t i t i o n e r o f the law. He of course a l s o has as p a r t o f h i s l a w y e r l y equipment c e r t a i n modes of p r o c e d u r e , s t r a t e g i e s , t a c t i c s or methods which he uses as t o o l s t o get the i n f o r m a t i o n he needs from the c l i e n t and which he a l s o uses t o form the o p i n i o n s he needs about the c l i e n t ' s c r e d i b i l i t y and l i k e l y courtroom b e h a v i o u r , e s p e c i a l l y as w i t n e s s . In a d d i t i o n , he has as p a r t o f h i s stock of i n f o r m a t i o n c e r t a i n standard r e c i p e s based on "experience" about what k i n d s o f people commit what crimes T h i s term i s v i r t u a l l y s e l f - e x p l a n a t o r y and comes from A l f r e d S c h u t z , C o l l e c t e d Papers i n the Problem of  S o c i a l R e a l i t y , (The Hague: Ma r t i n u s N i j h o f f , 1972) , where Maurice Natanson d e f i n e s i t on pp. x x v i i i - i v as anyone's r e p e r t o i r e of " t y p i f i c a t i o n s o f the common sense world"..."The stock of knowledge at hand i s a s o r t of s t o r e house o f i n f o r m a t i o n , r e c i p e s , and standard formulas t h a t we r o u t i n e l y use t o s o l v e t y p i c a l problems i n our d a i l y l i v e s . " 98 i n what ways , what judges think people look l i k e when they are l y i n g , what kinds of arguments c e r t a i n judges are l i k e l y to be swayed by, and so on. The ordinary c l i e n t up on a charge under the Criminal Code does not have a stock-of-knowlege-at-hand that matches the lawyer's. More experienced c l i e n t s (that i s , those with a long h i s t o r y of court appearances) may have a set that overlaps the lawyer's stock-of-knowledge on some dimensions and i n some areas; and although t h i s knowledge i s not formed from the perspective of years of concentrated study i n law schools, from association with lawyers as fellow professionals and from d a i l y a p p l i c a t i o n as p r a c t i t i o n e r , some lawyers claim that the crude expertise of a more This was the case with Sudnow1s Public Defenders; but, as we have seen, lawyers' " l o r e " about c l i e n t s i s not put to the same use by the defense counsel as by Sudnow's Public Defenders. The defense counsel uses t h i s information as a way of deciding i n part what to do with the case, not as a way of deciding what kind of deal to make. 99 experienced c l i e n t "speeds up" the i n t e r v i e w . However, the u s u a l c l i e n t has a stock-of-knowledge-at-hand t h a t does not i n c l u d e or even to any s i g n i f i c a n t degree o v e r l a p the lawyer's r e p e r t o i r e . The c l i e n t can c a l l upon h i s common-sense everyman's l o r e about what lawyers are l i k e and what Lawyer A, the f i r s t lawyer t h a t I worked w i t h , put i t t h i s way: "There's one t h i n g t h a t makes a d i f f e r e n c e i n the i n t e r v i e w : I f your c l i e n t i s an o l d hand a t i t , h e ' l l do a l l the t a l k i n g . H e ' l l s a y, 'Here's my d e f e n s e : i t ' s t h i s and t h i s , and t h i s ' . He won't say a word about whether he d i d i t or n o t . H e ' l l j u s t l a y out h i s defense and h e ' l l know i t b e t t e r than the bloody lawyer. H e ' l l have one s t o r y and h e ' l l s t i c k t o i t . But i f i t ' s a f i r s t o f f e n c e and the guy hasn't been around y o u ' l l have a h e l l of a time g e t t i n g the r i g h t i n f o r m a t i o n - the f a c t s o n l y . And the guy changes h i s s t o r y every time you ask him - e s p e c i a l l y i n c o u r t . Take o l d - he's an i d e a l c l i e n t , r e a l l y . He knows a l l the d e f e n s e s . I s a y , 'W e l l , they haven't got you on Robbery, but they have got you on A s s a u l t B.H.'. He s a y s , 'Yeah, I know'. You don't have t o t e l l him a t h i n g . He knows i t a l l . Most c l i e n t s t h a t come i n , you know, are co n f u s e d . They don't know i f t h e y ' r e caught or n o t . Or th e y ' r e u p s e t , or they haven't got a c l u e . But not t h i s guy. The judge gave him two y e a r s , t h a t ' s the maximum f o r A s s a u l t B.H. The guy's l i k e a hockey p l a y e r , you know, maybe I shouldn't make the comparison, but a hockey p l a y e r g e t s caught t r i p p i n g a guy, he knows h e ' l l get two minut e s . I t ' s j u s t l i k e t h a t f o r t h i s guy. He knows the s c o r e , he takes h i s chances. He does h i s time when he gets caught. He's chosen h i s j o b . He's a hardened c r i m i n a l a l r e a d y . " 100 you should and should not say to them i n an i n t e r v i e w , but t h i s i s not l i k e l y t o be h e l p f u l t o the lawyer i n p r e p a r i n g f o r c o u r t . So f a r we have d i s c u s s e d p r e p a r a t i o n f o r t r i a l i n terms of the e f f e c t of the events t h a t precede the c l i e n t ' s a r r i v a l i n the lawyer's o f f i c e and i n terms of the nature o f the r e l a t i o n s h i p between lawyer and c l i e n t . We are now ready to c o n s i d e r the i n f l u e n c e of the ways i n which the lawyer o r i e n t s t o the i m p e r a t i v e s of what he can expect to happen i n c o u r t . One t h i n g t h a t most c l i e n t s seem t o have a p r e -i n t e r v i e w o p i n i o n about i s whether or not t o t e l l the law-yer whether or not "they d i d i t " . Some c l i e n t s seem t o come to the i n t e r v i e w w i t h the n o t i o n t h a t they should a v o i d t e l l i n g the lawyer whether or not they " d i d i t " ; o t h e r s seem to f e e l they should vehemently deny doing i t ; o t h e r s seem t o f e e l the t h i n g t o do i s t o come r i g h t out w i t h the t r u t h t h a t they " d i d i t " w h i l e a t the same time e x p e c t i n g the lawyer t o " l i e " f o r them; and o t h e r s employ a s t r a t e g y of p l a y i n g i t by ear or f e e l i n g the lawyer out on t h i s q u e s t i o n . Lawyer I c h a r a c t e r i z e d types of c l i e n t a t t i t u d e s t o the s t o r y as f o l l o w s : " F i r s t t h e r e ' s the guy who comes i n w i t h a w e l l thought out s t o r y . Whether o r not you b e l i e v e him i n p a r t or i n whole, the lawyer's e t h i c s a l l o w you to d w e l l on the s u p e r f i c i a l r e a l i t y of what they t o l d you. Another w i l l come i n and admit e v e r y t h i n g . He i s e i t h e r honest or s i m p l e . He doesn't make g r e a t demands on you. He wants you to do what you c a n . He a c c e p t s the conse-quences. A t h i r d type comes i n , i s s t u p i d , t e l l s the t r u t h and wants you to manufacture s t o r i e s . Then t h e r e ' s the c r e a t i v e t y p e . He's a con a r t i s t . He comes i n w i t h a s t o r y , i f you don't go f o r i t , he t r i e s another and keeps goi n g . " 101 IV ORIENTATION TO COURT: (A) DEFEATING THE PARTICULARS: As we have seen, the p a r t i c u l a r s are the standard a g a i n s t which the lawyer measures the c l i e n t ' s s t o r y -w i t h i n allowances of how much i n t e r p r e t a t i o n l a t i t u d e t o g i v e p r o s e c u t o r ' s v e r s i o n s of p o l i c e d e s c r i p t i o n s . The lawyer puts the onus on the c l i e n t to t r y t o d e f e a t the p a r t i c u l a r s and h o l d s up the p a r t i c u l a r s as a standard r a t h e r than as something t h a t t o b e g i n w i t h i s f a l l i b l e , because t h i s i s the way the p a r t i c u l a r s w i l l be t r e a t e d i n c o u r t and because f o r minor c r i m i n a l matters w i t h L e g a l A i d c l i e n t s , the lawyer cannot " a f f o r d " t o spend the time t h a t would be i n v o l v e d i n l o o k i n g f o r ways1 of b r e a k i n g down the p a r t i c u l a r s b e f o r e t r i a l . Presumably, one c o u l d pay a lawyer t o take the e x t r a t i m e , but c l i e n t s accused i n minor c r i m i n a l matters are u n l i k e l y t o be a b l e One such way i s t o engage i n " f i e l d work". ( F i e l d work i n v o l v e s such t h i n g s as going out and r e s e a r c h i n g the scene of the crime t o f i n d w i t n e s s e s and to g i v e o n e s e l f a b e t t e r " p i c t u r e " as an a i d i n d i r e c t i n g q u e s t i o n s i n c r o s s -e x a m i n a t i o n , etc.) One young lawyer t h a t I i n t e r v i e w e d was a c o n s c i e n t i o u s advocate of f i e l d work and claimed t h a t v e r y few of h i s f e l l o w young c r i m i n a l lawyers "do t h e i r f i e l d work" f o r minor c r i m i n a l c a s e s . In h i s words: Lawyer M: "You need evidence to conduct a proper defense and evidence i s w i t n e s s e s . Whenever my c l i e n t doesn't know the names of p o s s i b l e witnesses or even i f t h e r e were any, I go out t o the pub or whatever i t was and 102 ask around and see i f I can't d i g up a w i t n e s s . I f you do i t and you a c t u a l l y f i n d 'Joe' - you f e e l f a n t a s t i c : There's your c a s e . But most lawyers don't bother w i t h f i e l d work. They go out d r i n k i n g a f t e r f i v e and I go out to the scene of the crime to see what I can d i g up. T h i s i s where law-y e r s are l e s s prepared." I t i s my i m p r e s s i o n t h a t lawyers who r e g u l a r l y do f i e l d work i n minor c r i m i n a l cases are r a r e . The lawyer quoted above i s the only one to my knowledge who does i t as a matter of p r a c t i c e . In my two years i n the f i e l d , t h e r e were o n l y two i n s t a n c e s t h a t came t o my a t t e n t i o n where any of my f o u r lawyers engaged i n f i e l d work. In one i n s t a n c e , Lawyer B seemed t o take a s p e c i a l p e r s o n a l i n t e r e s t i n a p a r t i c u l a r c l i e n t (accused of robbery) whom the lawyer claimed to l i k e as a person because he was " i n t e l l i g e n t and gentlemanly". He gave t h i s case unusual a t t e n t i o n i n h i s o f f i c e p r e p a r a t i o n and a l s o went out to the scene of the robbery i n order to f i x i n h i s mind the p h y s i c a l d e t a i l s of the s e t t i n g so t h a t he c o u l d have a b e t t e r i d e a of what the garage-owner complainant might and might not have been a b l e to observe o f the d e t a i l s and movements of the person he c l a i m s t o have seen opening h i s s a f e . The o t h e r i n s t a n c e was a case of "unlawful assembly" i n v o l v i n g the p o l i c e e j e c t i n g t r a n s i e n t youths from a h o s t e l which had been t h e i r home. The lawyer i n v o l v e d was d e f e n d i n g f o u r accused and s a i d he f e l t a p e r s o n a l sympathy f o r the now homeless " h i p p i e s " . He went to the scene of the r i o t t o see i f t h a t would a i d him i n p r e p a r a t i o n f o r t r i a l . However, such a c t i v i t y ( f i e l d work) was r a r e i n my s e t t i n g and d e f i n i t e l y r egarded as above and beyond the c a l l o f d u t y . 103 to a f ford to do so . I know of one instance where a lawyer was i n f a c t paid beyond the usual fee to do his utmost to "beat the rap". This was a case where the charge was "importing" (smuggling narcotics into the country for the purpose of t r a f f i c k i n g ) . The c l i e n t s were able to aff o r d a $35,000.00 b a i l . The lawyer conducted many lengthy interviews with the c l i e n t s i n which the p a r t i c u l a r s were c a r e f u l l y examined from "every angle" with a view to how they could be defeated. The following excerpt from an interview with one of the c l i e n t s involved i n t h i s case displays t h i s a t t i t u d e : Lawyer B: Statements l i k e that, statements that he made, uhhh! We've gotta keep i t out! We can't allow any of those statements to go i n . Those are, those are, uh - obvious-l y , uh, highly inflammable. They, you know, they, they uh - they empty the case, r i g h t there. One of the most damaging things I can think of that he's [the p r i n c i p a l accused] done was to indicate - they asked him how he got the uh - gold seals on - and he said, "Oh, that's simple - you just use gold paint", - or something, or some damn thing. I don't know what i t was - that i s highly dam-aging. He didn't say i t was h i s , but - well he explain-ed to us how they made i t - how they put i t together and what have you. C: Yeah. L: It's not - not any of these things are conclusive, at le a s t . Compare the lawyer 1s attitude i n the above excerpt with that i n the two excerpts below taken from "usual" interviews: Example One: Lawyer C: Okay - guess that's a l l the information I need. Now what I'm going to do i s , uh...find out from the po l i c e what t h e i r story i s - from the prosecutor what the po l i c e are going to be a l l e g i n g - and i f there's any loopholes i n , i n t h e i r evidence, we may, we may be able to go ahead for t r i a l . If uh, i f they have a r e a l s o l i d case - i n other words i t looks l i k e - pretty obvious. I t looks from what you've t o l d me, i t looks l i k e they've got a pretty good case against you for possession - urn, I think, uh - there's no point putting i t to a t r i a l -even though you're e n t i t l e d to i t . Example Two: Lawyer D: We have no a l t e r n a t i v e story to give the p o l i c e cause we know what happened. C: Yeah. L: So - there's no point putting you i n jeopardy by putting you on the stand. 104 The lawyer assesses the c l i e n t ' s story not only i n l i g h t of the p a r t i c u l a r s , but also against what the lawyer thinks i t w i l l count for i n court - and a l l of t h i s i n l i g h t of possible pertinence to relevant points of law. This i s - to the outsider, at le a s t - an involved process and one that requires considerable s k i l l and e f f o r t on the part of the lawyer. There are i n the law three ways i n which what the p o l i c e are a l l e g i n g i n laying the charge can be defeated and an a c q u i t t a l secured: (1) If the defense lawyer can show that the Crown has not proved i t s case - usually v i a showing that p o l i c e testimony has not established evidence "beyond a reasonable doubt" for each of the elements i n the charge. (2) I f i t can be "proved" v i a the testimony of other wit-nesses or by other means that the accused did not do what the p o l i c e allege he did (by for instance proving that the accused was not present at the "scene of the crime", or that some s p e c i f i a b l e other person did i t , or that i t was not done); and (3) i f the defense lawyer i s able to show that although his c l i e n t "did i t " , there are provable exculpatory circum-stances which exempt the accused from conviction (for example by proving that the accused was s u f f i c i e n t l y drunk, or over-l y d istressed, or acting i n s e l f defense, etc. - as defenses r e l a t e to p a r t i c u l a r charges). So i n these three ways, the defense lawyer t r i e s to e s t a b l i s h what he, on the basis of 105 his knowledge of the law and of how courts and judges are thought to operate, thinks are grounds for def easibility'*'. Since the lawyer's notions of what c e r t a i n judges are l i k e l y to do influences how he handles the case I w i l l t r y to give some i n d i c a t i o n of what I observed i n lawyers' attitudes to judges. (B) ATTITUDE TO JUDGES: 2 Categories a l l o t t e d judges by lawyers range (in order of increasing merit) from "insane" to "stupid" to " f a i r " . This would indicate a somewhat negative o v e r a l l 3 a t t i t u d e ; few judges get above the " f a i r " mark i n young lawyers' private opinion " p o l l s " . Judges who are I use t h i s concept i n the same sense as does H.L.A. Hart i n "The A s c r i p t i o n of Rights and R e s p o n s i b i l i t i e s " i n Anthony Flew, Ed., Logic and Language, F i r s t Series, (Oxford: Blackwell, 19 60), p. 148: " . . . t h i s i s the word 'defeasible', used of a l e g a l i n t e r e s t i n property which i s subject to termination or 'defeat' i n a number of d i f f e r e n t contin-gencies, but remains i n t a c t i f no such contingencies mature." 2 This term i s used to r e f e r to judges i n the P r o v i n c i a l Courts, as well as i n County and Supreme Court. The charac-t e r i z a t i o n applies to the judges that the lawyers i n t h i s study encounter most frequently, that i s , the P r o v i n c i a l Court judges. 3 Lawyer B put i t as follows: "They're not, you know, a l l t o t a l morons. You know there are some people down there that are reasonably clever people. But some of them are quite insane, l i k e . " 106 "insane" are judges for whom lawyers claim they can see no l o g i c ("rhyme or reason") i n t h e i r decisions. Judges who are "stupid" are ones who "don't know the law" or who "can't follow an argument i n the law" or forget to bring what law-yers consider as relevant facts to bear i n t h e i r decisions, or who generally "get l o s t " i n the course of the t r i a l . The young lawyer l e t s on that he considers most judges to f a l l i n the "stupid" category. Then there i s the occasional judge who i s considered to be " f a i r " : This means that he w i l l " l i s t e n to" (that i s , give weight to) arguments i n the law and assess facts i n ways that are not c a t e g o r i c a l l y pre-j u d i c i a l to the accused. A f a i r judge i s also a "smart" judge, but there are smart judges who are considered to be u n f a i r , that i s , who are thought to be prejudiced i n favour of the Crown, or who are considered to be "tough" sentencers, etc. Although young lawyers are c a r e f u l to avoid d i s -pleasing judges and are r e s p e c t f u l before the judge i n court, outside of court they t a l k c y n i c a l l y of playing what they assume to be a judge's preferences and prejudices against In the following excerpt, Lawyer A i s complaining a f t e r t r i a l about the d e c i s i o n he just received from a c e r t a i n judge: "That judge i s insane I Just insane! He gave my guy three months AND $500.00 fo r dangerous d r i v i n g . He said he didn't see the l o g i c i n the penalty for .08 breath-a l i z e r being s t i f f e r than impaired. And he c i t e s t h i s case for impaired! He knew the name and a l l . We're a l l stand-ing there amazed! He goes on to say that since the penalties for Impaired are s t i f f , they should be s t i f f for Dangerous! Now what the h e l l ! How does he t i e that together! That guy's j u s t insane!" 107 him, by whatever means they consider to be e f f e c t i v e . Judges (and seldom prosecutors) are the focus of lawyers' behind-the-scene, snide, joking banter when r e l a t i n g the events of a morning or afternoon i n court. In general, judges are regarded as a sort of tough 2 working condition to be put up with, manipulated xf poss-i b l e , and complain about i f the case does not go as the lawyer expected or hoped i t would: In the following three excerpts, three lawyers t a l k about "making a p i t c h " to the judge: Lawyer N: "By experience with the human thing, I know which judges I can do what with. Latitude seems to depend on known prejudices and weaknesses." Lawyer O: "You f e e l funny giving p i t c h to the judge. He hears i t so many times. But you do i t anyway!" . Lawyer A; "I made t h i s p i t c h to the judge - p r a c t i c a l l y had him i n tears: This poor k i d , eighteen years old, hooked, broke, sic k , needed a f i x , so he traded with the cop. Needs a break. I had the old judge i n sympathy. He gave my c l i e n t the thirty-day t r i a l period to kick his habit. He could have tossed him r i g h t i n the c l i n k e r . Now I'm going to have a h e l l of a time speaking to sentence! Christ what can I say - my c l i e n t w i l l get into more trouble i n those t h i r t y days than ever before!" 2 The few judges who are regarded as " f a i r " are exempt from t h i s a t t i t u d e . 108 Lawyer C: But unfortunately, the judges - when you s t a r t out, you're s t i l l young, very young at t h i s , so we get caught i n a snag a l l the time about uh - what our view of reasonable doubt i s . P: Is d i f f e r e n t from t h e i r s . L: Is d i f f e r e n t from the judge's - a l l he has to say i s , "I'm s a t i s f i e d beyond a reasonable doubt that the Crown has proved i t s case". You can argue t i l l you're blue i n the face, you know. He says that - because your idea of what reasonable doubt [laughs] i s - You're hanging up by a s t r i n g , saying that t h i s minute l i t t l e f a c t r a i s e s a reasonable doubt, you know. The GREAT CRUSH of the evidence goes the other way! So [laughs] you're r e l y i n g on a case and tr y i n g to convince him on that. I t ' s jus t impossible. He says, "Well I'm s a t i s f i e d beyond a reasonable doubt [laughs]. A l l of a sudden you're just - i t ' s l i k e popping your balloon, you know. You're doing great, you know, then wow! That's the thing that sort of wisens you faster than anything e l s e . P: Judgments. L: Putting yourself i n the judge's p o s i t i o n and seeing how much power he has to... i n t e r p r e t evidence. Lawyers seem to have a well-worked out lore about what judges i n general w i l l accept and w i l l not accept; what kind of "pitches" a p a r t i c u l a r judge i s l i k e l y to 109 "go f o r " . In preparing for t r i a l , the lawyer may T h i s a t t i t u d e i s apparent i n the f o l l o w i n g two comments: Lawyer P: "You say your c l i e n t has a job and the judge l e a n s forward a b i t . You say he's going to s c h o o l at n i g h t and he l e a n s forward a b i t more. You know how i t goes." Lawyer B: "The judge i s n ' t l i k e l y t o g r a n t you a d i v o r c e j u s t because you haven't been s l e e p i n g together f o r the l a s t t e n y e a r s . He hasn't s l e p t w i t h h i s w i f e f o r the l a s t twenty y e a r s , so why should you get a d i v o r c e when he's p e r f e c t l y r e s i g n e d t o h i s s i t u a t i o n ! " That judges d e c i d e on the b a s i s of t h e i r p r e j u d i c e s r a t h e r than "the m e r i t s of the case" i s not an uncommon n o t i o n , and one t h a t I have come a c r o s s i n the l i t e r a t u r e . " P r o f e s s o r Frank's argument i n Law and the Modern Mind may be summarized as f o l l o w s : ' I t has long been a t r a d i t i o n among lawyers t o a s s e r t t h a t j u d i c i a l d e c i s i o n s are reached by a p r o c e s s of r e a s o n i n g . But i n f a c t t h i s o v e r t d i s p l a y o f r e a s o n i n g i s sheer bunkum. When a judge hears a c a s e , he g r a d u a l l y makes up h i s mind ( s i n c e the law i n s i s t s t h a t he must make up h i s mind); but he does so i n response t o a v a r i e t y of f a c t o r s which have n o t h i n g to do w i t h "reason", and range from the b i a s of h i s s o c i a l p r e j u d i c e s t o the raw-ness of h i s u l c e r s . The s o - c a l l e d "reasons" which he f i n a l l y s e t s f o r t h i n h i s o f f i c i a l o p i n i o n are n o t h i n g more than r a t i o n a l i z a t i o n s of predetermined hunches. I f he has d e c i d e d t o g i v e judgment i n accordance w i t h precedents c i t e d on b e h a l f of the p l a i n t i f f , h i s t r a i n e d i n t e l l i g e n c e and mastery of l e g a l j a r g o n w i l l e a s i l y a l l o w him to demonstrate t h e i r r e l e v a n c e . I f , on the c o n t r a r y , he f a v o u r s the d e f e n d a n t , he can j u s t as e a s i l y demonstrate the o p p o s i t e . J u d i c i a l o p i n i o n s are simply the e x p r e s s i o n of a subcons-c i o u s l y p e r s i s t i n g c h i l d h o o d image of a " f a t h e r - f i g u r e " ; and anyone who s t u d i e s such o p i n i o n s i n the hopes of under-s t a n d i n g the nature of law w i l l be wasting h i s t i m e .1 Much of the f o r c e was taken out o f Jerome Frank's argument by the simple expedient of promoting him t o the bench, when, as Judge F r a n k , he d i s c o v e r e d t h a t the j u d i c i a l p rocess was r a t h e r more o b j e c t i v e than he had h i t h e r t o supposed." Pe t e r C o l l i n s , " A r c h i t e c t u r a l Judgment", The Canadian A r c h i - t e c t , (June, 1971), p. 56. 110 e x p l i c i t l y pass h i s i d e a s about judges' p r e j u d i c e s on t o the c l i e n t 1 . There i s seldom a f r i e n d l y o r p a t e r n a l r e l a t i o n s h i p between judge and young lawyer - the judge perhaps r e g a r d -i n g the young lawyer as a r e g r e t t a b l e nuisance who makes the long day i n c o u r t l o n g e r by dragging out t r i a l s - and the young lawyer r e g a r d i n g the judge as a m o r e - o r - l e s s a r b i t r a r y power f i g u r e who i s more l i k e l y than not to smash 2 h i s case . Judges i n g e n e r a l are not r e s p e c t e d by the young lawyer who r e g a r d s them as b a s t i o n s of the r e a c t i o n -ary " e s t a b l i s h m e n t " w i t h l i t t l e i d e a of "where i t ' s r e a l l y a t " . They are seen as r e p r e s e n t a t i v e s of the s m a l l mino-r i t y i n power imposing i t s own "backward" m o r a l i t y on the r e s t o f s o c i e t y , e s p e c i a l l y w i t h r e s p e c t t o the drug laws and minor c r i m i n a l charges l i k e vagrancy, d i s t u r b i n g the peace, s h o p l i f t i n g . Judges are c h a r a c t e r i z e d as more or Lawyer Q (Senior defense c o u n s e l , s i x years c a l l e d ) : "I always i n s t r u c t my c l i e n t s t h a t i t i s v e r y .important t h a t t h e i r p h y s i c a l appearance does not p r e j u d i c e the judge a g a i n s t them. Long h a i r and a s c r u f f y appearance i s n ' t g o i ng to do them any good. A t r i a l i s an e x e r c i s e i n the a r t of p e r s u a s i o n . T r y i n g t o persuade the judge t h a t your p r o p o s i t i o n should be b e l i e v e d over and above the o t h e r ' s . I always i n s t r u c t my c l i e n t s to be p o l i t e and r e s p e c t f u l , to speak s l o w l y and g e n t l y ( - i n c r i m i n a l cases t h e r e i s u s u a l l y some v i o l e n c e and you don't want to t r a n s m i t t o the judge t h a t your c l i e n t i s a rough person - ), never to g e t angry, and always i f they don't know the ans-wers to the p r o s e c u t o r ' s q u e s t i o n s to say t h a t they are s o r r y but they do not know." 2 I heard of o n l y one judge who seemed t o be r e s p e c t e d as a s o r t of c o l l e a g u e by the young lawyers. T h i s judge i s known to sometimes have c o f f e e w i t h a young defense lawyer b e f o r e t r i a l and good-naturedly joke about the t r i a l i n which they both were to be i n v o l v e d . I l l l ess r i d i c u l o u s authority figures for whom the young The following anecdote from my f i e l d notes displays how young lawyers enjoy "making fun of" judges: (There was great h i l a r i t y among the young lawyers when a magistrate was suspended because he was found i n a r a i d on a house of pros-t i t u t i o n . The magistrate was rumoured to be more than casually involved with the "madam" who apparently got an "impossible" decision when she appeared before him on a t r a f f i c k i n g charge:) Lawyer A: P: L: P: L: P: L: P: L: got suspended! Why? No! Raid on a house. Drugs? No. Gambling? No. Sex! It was a whore house and there's only one thing you could be doing i n a whore house! (Later three or four young lawyers, a prosecutor and I are having coffee at a break i n t r i a l i n the c a f e t e r i a i n the basement of the p o l i c e court building:) Lawyer A: Lawyer N: Lawyer R: Lawyer A: Prosecutor D: Lawyer S: P: Lawyer S: What's going to happen to old - w i l l he ever s i t again? Oh yeah, i n a year or so, t h e y ' l l put him i n the Vag C courts! [Laughter a l l around 7] I doubt i f h e ' l l ever s i t again. In fac t he's probably not over the hurdle yet. If he wants to practice law w i l l he have to go before a d i s c i p l i n a r y committee? Yeah, conduct u n b e f i t t i n g a lawyer! Harumph! Harumph! He ought to do He ought to commit suicide! the honourable thing! He's sent more poor bastards to j a i l because he refused to l i s t e n to defense counsel. What's his problem? Authoritarian - the most aut h o r i t a r i a n bastard and so stupid! Not too popular with the other judges e i t h e r . He was a p o l i t i c a l appointee i n the f i r s t place. 112 lawyer f e e l s he must wear a s u i t and keep his hair some-what trimmed. The expected at t i t u d e of the judge i s something that lawyers o r i e n t to i n deciding how to handle the case: Lawyer A: If I know the judge i s going to be and my c l i e n t has a reasonable story - I mean a story that may reasonably well be true; and i t ' s a case where there's no other defense than to put the c l i e n t on the stand, I won't do i t be-cause the son-of-a-bitch won't believe him. The mere f a c t that the man stands accused i s enough for that judge to convict him. 'On the other hand i f i t was a drug case and I knew for c e r t a i n I'd have , my c l i e n t would stand a chance, cause there's a judge that i s f a i r . The lawyer quoted above claims i f he knows i n advance which judge w i l l be presiding over his case, i t makes a great deal of diff e r e n c e i n how he decides to conduct the case. At the same time, though, lawyers have a notion that they know the l i m i t s of what any judge w i l l and w i l l not believe; so they can assess any c l i e n t ' s story by what they take to be general standards of c r e d i b i l i t y ; that i s , of what any judge w i l l believe, without knowing what p a r t i c u l a r judge i s s i t t i n g . Lawyers also use "what the judge won't believe" as a sort of strategy to d i p l o m a t i c a l l y t e l l the c l i e n t that his story i s unbelievable. Instead of challenging the c l i e n t himself, the lawyer i s able to use the judge as a stand-in and thus avoid confrontation with the c l i e n t : 113 Lawyer C: Okay - Well, uh - that, urn - Yeah, okay. I think you haveta concede that. I'm just looking at i t from the point of view of what a judge w i l l accept. Okay? C: Uh-huh. L: Uh, he won't accept that i t was i n your pocket... C: Well -L: Unless i t was yours - unless you knew i t was - you know - what i t was. As I am now nearing the end of my discussion of the factors that influence the lawyer i n deciding how to handle the case and how to conduct the interview, I w i l l put the lawyer's o r i e n t a t i o n to expected judge opinion i n the context of the other variables the lawyer weighs i n deciding how to plead the c l i e n t and whether or not to put him on the stand. terms of (1) how the story f i t s into the law; that i s , to what degree does the c l i e n t ' s story provide or not provide the elements necessary to prove non-guilt, and to what extent can the c l i e n t ' s story and/or his s o c i a l circum-stances and personal c h a r a c t e r i s t i c s be translated into a warrantable defense to the charge by givi n g provable grounds for (a) "unproving" the c r u c i a l elements of the crime as set out i n the Criminal Code; or (b) showing reason why, though the elements are there, there are other v a l i d reasons for a c q u i t t a l ; and (2) his notions of judge's c r i t e r i a for c r e d i b i l i t y . The lawyer mentally processes the c l i e n t ' s story i n 114 The lawyer "sizes up" the c l i e n t ' s story against the p a r t i c u l a r s i n terms of i t s defense-generating c a p a b i l i t i e s (that i s , what probably warrantable grounds the c l i e n t ' s story suggests to the lawyer for making the p o l i c e account d e f e a s i b l e ) . But the lawyer i s at the same time evaluating the story i n terms of how i t i s l i k e l y to stack up against what he thinks are judges' ideas of how things happen with c e r t a i n categories of people under c e r t a i n circumstances''" and also i n terms of how the story meets with the lawyer's own i n t u i t i o n s and "findings" regarding what he thinks he knows about people who "get in t o t h i s kind of trouble" and how these people a f f e c t c e r t a i n kinds of judges. One c e n t r a l question for the lawyer i s : Is t h i s an account that could p r o f i t a b l y be given by the accused on the stand - usually not exactly as i t has j u s t been t o l d to the lawyer, but with appropriate (to the lawyer's way of thinking) modifications, as suggested or influenced however bla t a n t l y or subtly by the lawyer - and the f e a s i b i l i t y of t h i s - given the probable v i s i b l y interpretable character and l i k e l y courtroom demeanour of the c l i e n t as assessed by the lawyer. Max Gluckman i n his c l a s s i c study, The J u d i c i a l  Process Among the Barotse of Northern Rhodesia, (Manchester: Manchester University Press, 1955), develops a very i n s i g h t -f u l analysis of the use of s o c i a l stereotypes i n j u d i c i a l thinking: "Judges work not only with standard of reason-115 able behaviour for upright incumbents of p a r t i c u l a r s o c i a l positions but also with standards of behaviour which are reasonably interpreted as those of p a r t i c u l a r kinds of wrong-doers. There are s o c i a l stereotypes of how thieves, adulterers and other malefactors act. If witnessed actions of a defendant assemble into one of these stereotypes, he i s found g u i l t y , though judges prefer d i r e c t evidence to convict." Gluckman, The J u d i c i a l Process Among the Barotse  of Northern Rhodesia, p. 359. The following excerpt from an interview with Lawyer C reveals a lawyer's notion of how judges think people behave and "things happen" i n a given type of case (the charge i s possession of drugs): L: Well, uh - the judge i s n ' t gonna accept the f a c t that, you know, you didn't know that i t was there - he just i s n ' t gonna believe you. You know he's ju s t not gonna accept that - uh, you know, s i t t i n g there i n the open, t h i s sorta thing. Well, he - yer - yer not, you know, you're asking the judge. You can imagine the head space he's i n . C: Yeah. L: And he - you know, he's j u s t not gonna buy i t . * L: Mm...I think they got you cold on the dope, do you know that? C: You think so? L: Well - ju s t knowing what the - you know - the way judges'11 operate. They, huh, you've been through various si t u a t i o n s l i k e t h i s many, many times before an - you know, you t r y t h i s , an t r y that, that an t r y t h i s and t r y that; but, see, possession i s a tec h n i c a l . term, and you'd have to um, f i r s t of a l l the - what they haveta do i s e s t a b l i s h knowledge, that you knew what i t was. * This convention i s used to indicate omission of exchanges. 116 Given that the c l i e n t comes equipped with c r i t e r i a for s t o r y - t e l l i n g (including b u i l t - i n i n s t r u c t i o n s regarding a t t i t u d e , f a c i a l expression and general manner i n t e l l i n g the story) - these c r i t e r i a being part of his re p e r t o i r e as a member of the culture at large; and given that these c r i t e r i a for structuring the story are not l i k e l y to co-incide with the lawyer's model c r i t e r i a for generating s t o r i e s best suited to courtroom ears, the lawyer, i f he i s thinking of putting the c l i e n t on the stand (to t e l l his sto r y ) , has to consider how susceptible his c l i e n t i s l i k e l y to be to his own "lawyerly" influencing techniques for "rehearsing c l i e n t s " . In other words does he have a c l i e n t whom he can influence to modify the t y p i c a l layman's story into the appropriate courtroom account, which ends up being a story i n l i n e with lawyers' ideas of what a layman's account should sound l i k e i n court; that i s , a story best suited to the lawyer's generalized notions of a t y p i c a l judge's mentality i n judging. I would say that lawyers do not d i f f e r greatly i n th e i r a b i l i t y to TRANSLATE c l i e n t s ' s t o r i e s into the appro-p r i a t e l e g a l categories i n order to assess the l i k e l y chances of "beating the rap" ( d e f e a s i b i l i t y on l e g a l grounds). I would take t h i s to be a s k i l l that lawyers need i n order to meet the q u a l i f i c a t i o n s of the bar i n the f i r s t place. I would say, though, that lawyers do d i f f e r greatly i n t h e i r a b i l i t y to influence c l i e n t s to TRANSFORM the "natural" layman's story into a suitable courtroom 117 account - for t h i s involves not only assessing the c l i e n t and the story along c r e d i b i l i t y dimensions, but also a more or less complex manipulative steering of the c l i e n t to "come out with" something that sounds l i k e what the• lawyer thinks i s an "innocent" layman's account"'". This transformation problem i s primarily an i n t e r -a c t i o n a l problem as opposed to a l e g a l problem of the sort involved i n t r a n s l a t i n g s t o r i e s into defeasible grounds r e l a t i n g to the elements of the charge i n the Criminal Code that must be proved. Translating accounts i s probably pretty well a standard a b i l i t y of lawyers; whereas trans-forming accounts i s a more var i a b l e s k i l l - probably p a r t l y a function of "experience" as a p r a c t i t i o n e r as well as of personal manipulative s k i l l s at influencing people. "If they had to examine a witness, what they had got to do was to induce him to t e l l h is story i n the most dramatic fashion, without exaggeration; they had got to get him, not to make a mere p a r r o t - l i k e r e p e t i t i o n of the proof, but to t e l l his own story as though he were t e l l i n g i t for the f i r s t time - not as though i t were learned by heart, but i f i t were a p l a i n t i v e story, p l a i n t i v e l y t e l l i n g i t . And they had got to a s s i s t him i n the d i f f i c u l t work. They had got to a t t r a c t him to the performance of his duty, but woe be to them i f they suggested to him the terms i n which i t were to be out! They must avoid any suspicion of leading the witness, while a l l the time they were doing i t . They knew p e r f e c t l y well the story he was going to t e l l ; but they destroyed absolutely the e f f e c t i f every minute they were looking down at the paper on which the proof was written. It should appear to be a kind of spontaneous conversation between the counsel on the one hand and the witnesses on the other, the witness t e l l i n g a r t l e s s l y his simple t a l e , and the counsel almost appalled to hear of the i n i q u i t y under which his c l i e n t had suffered." Edward A. Parry, The Seven Lamps of Advocacy, (London: Unwin, 1923), p. 81. 118 Lawyers d i f f e r i n t h e i r transformation s k i l l s , c l i e n t s i n t h e i r transformation s u s c e p t i b i l i t y , and s t o r i e s i n th e i r transformation p o t e n t i a l i t y . Lawyers d i f f e r also i n t h e i r transformation methods, but b a s i c a l l y lawyers are doing three kinds of things i n the course of the interview - they are employing methods of getting information, methods of t r a n s l a t i n g information and methods of transforming information. (Remember that the term " t r a n s l a t i n g " i s used to r e f e r to comparisons with the law, and the term "transforming" i s used to r e f e r to methods of influencing the c l i e n t i n what he's going to say i n court.) Methods of getting information are at the same time methods of transforming information; because, for example, by asking one question rather than another, the lawyer f i x e s the c l i e n t ' s attention (and subsequently memory focus) on one aspect rather than another of an event, and i n asking i t i n a c e r t a i n way, he can arouse and associate the question i n the c l i e n t ' s mind and expression with c e r t a i n emotions, or lack of them, - and expect t h i s to "show through" i n the c l i e n t ' s answer when the same question i s asked i n court during t r i a l . Once having decided what to do with the case, the lawyer must also convince the c l i e n t to go along with his decisi o n . The lawyer i s usually working up to t h i s 119 throughout the interview, and t h i s i s another parameter organizing what i s going on i n the interview 1. We s h a l l see actual examples of t h i s i n the next chapter when we examine interviews i n d e t a i l . In t h i s chapter I have l a i d out the relevances of the context i n which the interview occurs so that the reader w i l l have the necessary background f o r following through the analysis i n the next chapter, where I examine crimi n a l s t o r i e s i n d e t a i l . How the interview stands i n the chain of events that take the accused from arrest to court and the p r a c t i c a l imperatives i n the way the lawyer sees his job should be kept i n mind by the reader throughout the next chapter. "Lawyers not only make t h e i r own decisions; they also attempt to persuade others to make decisions." Morris, How Lawyers Think, p. 8. CHAPTER III INTERVIEWING IN CRIMINAL CASES: CRIMINAL STORIES I INTRODUCTION: In t h i s chapter I w i l l present and analyse excerpts from t r a n s c r i p t s of interviews i n minor criminal cases. The excerpts centre on the " s t o r i e s " that c l i e n t s t e l l i n response to the lawyer's questions about "what a c t u a l l y happened" i n the events that lead to a r r e s t . The routine ways i n which lawyers conduct these interviews are respon-sive to the considerations d e t a i l e d i n the l a s t chapter. In the course of analysis i n t h i s chapter I w i l l be able to f i l l i n some of the f i n e work i n the structure of the s o c i a l organization of preparation for court. In the next chapter I w i l l be able to broaden the analysis presented i n t h i s chapter when I discuss divorce interviews where a d i f f e r e n t set of p r a c t i c a l imperatives operate within the "same" l e g a l system. I w i l l begin t h i s chapter by describing the usual course of events i n the lawyer's routine management of the interview. I w i l l then examine " s t o r i e s " as the focus of the interview and I w i l l examine them i n terms of the three main influences on t h e i r structure: (1) the p a r t i c u l a r s (2) constraints of c r i t e r i a for c r e d i b i l i t y and (3) lawyer's contribution to the c l i e n t ' s production of the story 120 121 ("Joint S t o r y P r o d u c t i o n " ) . A l l the w h i l e I w i l l be exam-i n i n g the p r o d u c t i o n and assessment of s t o r i e s i n terms of the f e a t u r e s i n the pro c e s s t h a t i l l u m i n a t e the s o c i a l o r g a n i z a t i o n o f p r e p a r a t i o n f o r c o u r t . II THE COURSE OF THE INTERVIEW: I t was apparent t o me from working w i t h the t r a n -s c r i p t s of i n t e r v i e w s t h a t the f o u r lawyers t h a t I worked with i n t e n s i v e l y f o l l o w e d the same g e n e r a l p a t t e r n i n conducting t h e i r i n t e r v i e w s w i t h c l i e n t s accused o f minor c r i m i n a l o f f e n c e s1. I w i l l b r i e f l y o u t l i n e t h i s p a t t e r n t o show the p l a c e o f the s t o r y i n the c o n t e x t of the i n t e r v i e w . V i r t u a l l y a l l o f the taped i n t e r v i e w s took p l a c e i n the lawyer's o f f i c e . The c l i e n t i s u s u a l l y made to w a i t i n the r e c e p t i o n a r e a f o r from t e n or f i f t e e n minutes t o perhaps h a l f an hour w h i l e the lawyer i s busy on o t h e r matters or i s l o o k i n g over the f i l e on the c l i e n t about t o be i n t e r v i e w e d . When the lawyer i s ready he goes out t o meet the c l i e n t and e s c o r t s him i n t o h i s o f f i c e . He then i n v i t e s him to be seated and takes down h i s name, a d d r e s s , o c c u p a t i o n , f a m i l y s i t u a t i o n and employment s i t u a t i o n . I f More "important" matters such as murder and rape f o l l o w a d i f f e r e n t p a t t e r n and i n v o l v e many le n g t h y i n t e r -v i ews. 122 t h i s i n f o r m a t i o n has a l r e a d y been o b t a i n e d by the lawyer d u r i n g a telephone c o n v e r s a t i o n p r e v i o u s t o the i n t e r v i e w , the lawyer w i l l i n s t e a d b e g i n the i n t e r v i e w w i t h some b r i e f i n t r o d u c t o r y comments such as "Oh, yes we t a l k e d over the phone" and "You're charged w i t h , a r e n ' t you?" I f the c l i e n t i s not on L e g a l A i d , a t t h i s p o i n t the lawyer w i l l r a i s e the i s s u e of how the c l i e n t i s t o pay f o r h i s s e r v i c e s . I f the q u e s t i o n of the f e e i s not r e s o l v e d to the s a t i s f a c t i o n o f the lawyer, the i n t e r v i e w w i l l end more or l e s s unceremoniously. B e f o r e he w i l l proceed w i t h the i n t e r v i e w , the lawyer r e q u i r e s a "retainer""*' from non L e g a l A i d c l i e n t s . For h i s r e t a i n e r the lawyer u s u a l l y r e q u i r e d enough money t o pay f o r h i s time i n doing some i n i t i a l r e s e a r c h and going to c o u r t t o s e t a date f o r t r i a l . A r e t a i n e r u s u a l l y amounts to $100.00 or more - the complete fee f o r h a n d l i n g the case being $250.00. Lawyers c l a i m t h a t t h i s i s the o n l y way o f e n s u r i n g payment of t h e i r b i l l s . A lawyer w i l l not go t o t r i a l f o r a c l i e n t who has not p a i d the f u l l f e e p r i o r to t r i a l , s i n c e he u s u a l l y f e e l s t h a t payment The lawyer c o n s i d e r s h i m s e l f to be " r e t a i n e d " by the c l i e n t when the c l i e n t has p a i d him not the f u l l f e e , but enough to cover the work he w i l l do f o r the c l i e n t u n t i l he i s p a i d the f i n a l i n s t a l l m e n t which i s almost always demanded b e f o r e t r i a l . 123 of the b i l l a f t e r the end of the case i s u n l i k e l y since the c l i e n t w i l l either be i n j a i l or "over the next h i l l " . Paying the fee permits the interview to proceed to the substantive issue; whether or not and how to defend the case. As we have seen, the lawyer's f i r s t step i n t h i s d i r e c t i o n i s to confront the c l i e n t with the p a r t i -culars. The lawyer b l u n t l y confronts the c l i e n t with the p o l i c e version of events as the standard i n r e l a t i o n to which the interview work i s to be done. A b e l i e f among lawyers i s that when confronted with the p o l i c e story, the c l i e n t i s l i k e l y to give a b r i e f e r , more " t r u t h f u l " , more to-the-point version than he would have offered i f asked to give his story spontaneously without f i r s t hearing the p o l i c e version. The lawyer reads the p a r t i c u l a r s and prevents the c l i e n t from in t e r r u p t i n g by "cutting him o f f " i f he t r i e s to object or o f f e r explanations before the law-yer has f i n i s h e d reading. In the excerpt below, a lawyer i s urging a c l i e n t to pay the promised fee before t r i a l . The lawyer i s t a l k i n g to the c l i e n t over the phone i n h i s o f f i c e . Another lawyer (Lawyer B) and myself are present. Lawyer A: (To c l i e n t over the phone) "You hussle yer ass and bring i t i n . Or I won't argue for you. I t ' s as simple as that, I t o l d you when I took you on that the fee was $250.00. You owe me $150.00. Now you said you'd bring i t i n . Have i t with you!" (Hangs up, then says to the other lawyer and myself:) "What did they say about never accepting a criminal case unless you're paid i n advance!" 124 When the lawyer has f i n i s h e d a generally uninter-rupted reading of the p a r t i c u l a r s , the lawyer then gives the c l i e n t an opening by saying, "Now how does that sound to you?"; or, "Is there anything i n there you don't agree with?"; or, "What do you say happened?". The c l i e n t may agree with the p o l i c e version com-p l e t e l y , but more usually he comes up with a version that involves some r e - i n t e r p r e t a t i o n , v a r i a t i o n or explanation, and sometimes a "whole new story". The lawyer generally l e t s the c l i e n t " t e l l i t his own way" for a while, then gradually becomes more d i r e c t i v e i n asking the c l i e n t to elaborate on c e r t a i n points, etc. The extent of the law-yer's directiveness depends on what the lawyer sees as the extent of the discrepancy between the c l i e n t ' s story and the p o l i c e story, and on the p o s s i b i l i t i e s that he sees for a defense. The greater part of the interview i s spent i n getting the c l i e n t ' s story and i n discussing that version against the p o l i c e version with the c l i e n t . Next the lawyer gets more personal data from the c l i e n t . He asks the c l i e n t about his family s i t u a t i o n , job p o s s i b i l i t i e s , c riminal record, etc. The lawyer needs t h i s data i n order to speak to sentence i f the c l i e n t pleads g u i l t y or i s found g u i l t y . I t also gives him some idea of the l i k e l y sentence that w i l l be imposed and there-fore of the d e s i r a b i l i t y of taking a g u i l t y plea or making 125 a deal rather than going to t r i a l . If the lawyer goes into considerable d e t a i l i n asking the c l i e n t for t h i s information, i t may be the f i r s t clue to the observer that the lawyer i s either "pitching" for a g u i l t y plea or i s expecting the c l i e n t to be found g u i l t y at t r i a l . Simul-taneously, or a l t e r n a t i v e l y , the lawyer may be using t h i s data as an aid to himself i n his c r e d i b i l i t y assessments; that i s , i n deciding whether or not to put the c l i e n t on the stand. As we s h a l l see i n our discussion of c r e d i -b i l i t y below, how the c l i e n t treats the question of his record has p a r t i c u l a r l y s i g n i f i c a n t consequences for the lawyer's assessment of the c l i e n t and of what to do with the case. At t h i s stage, the lawyer i s piecing things t o -gether i n preparation for semi-final d e c i s i o n on what to do with the case (whether or not to go to t r i a l and how to conduct the defense), unless there are hitherto noticed s i g n i f i c a n t missing pieces i n the p a r t i c u l a r s , or other contingencies such as the necessity of doing some research on the law before a dec i s i o n can be made, or t a l k i n g to witnesses. In the case of these contingencies, the d e c i -sion on what to do with the case i s postponed. However, any decision at t h i s stage i s "semi-final" because i t i s te c h n i c a l l y subject to the c l i e n t ' s approval or veto. The lawyer's next task i s to discuss h i s strategy with the c l i e n t . He may make a l i t t l e "speech" semi-126 translated into what he takes to be layman's terms on how hopeless or how good the case seems to be - leading up to "advice" to go to t r i a l or to plead g u i l t y . The c l i e n t usually agrees with the lawyer's decision but asks some "off-the-track" (to the lawyer) questions. If the c l i e n t agrees that the case i s to go to t r i a l , and the lawyer has decided to put the c l i e n t on the stand, he w i l l inform the c l i e n t of t h i s . He usually also informs the c l i e n t that he cannot go on the stand to t e l l h is story, i f the lawyer has decided that that would be i n the best i n t e r e s t s of the defense. I f the case i s going to t r i a l and the c l i e n t i s going on the stand, the lawyer may "rehearse" the c l i e n t somewhat for t r i a l ; but the lawyer usually saves the main "priming up of the c l i e n t " u n t i l a second p r e - t r i a l i n t e r -view that usually takes place, not i n the lawyer's o f f i c e , but i n the corridors or waiting room at court immediately p r i o r to t r i a l . Almost always i t i s the lawyer who takes the i n i -t i a t i v e at ending the interview and the c l i e n t who delays things by asking more questions. After dealing p a t i e n t l y with the f i r s t few questions, the lawyer usually cuts the c l i e n t o f f with "See you i n court on " - only occa-s i o n a l l y accompanied by an excuse such as "I'm running out of time", or an explanation such as, "We've gone into i t as far as we can". Apart from the i n c i d e n t a l s of opening and c l o s i n g , the question of the fee and necessary gathering of 127 biographical information, the burden of the interview i s i n e l i c i t i n g the story and assessing i t i n the l i g h t of the p r a c t i c a l decisions that must be made i n handling the case. I l l THE STORY; What the c l i e n t t e l l s the lawyer when asked "what happened" i n the events that lead to his arrest i s known as "the story". While the d i c t i o n a r y d e f i n e s 1 story as "a narrative or r e c i t a l of an event, or a series of events, whether r e a l or f i c t i t i o u s " , common sense jargon uses the term to mean more f i c t i t i o u s than r e a l when r e f e r r i n g to s t o r y - t e l l i n g that i s excuse-making. This c e r t a i n l y i s the sense of i t s use i n the l e g a l community. "Story" usually has t h i s s p e c i a l "slang" meaning i n the l e g a l s e t t i n g where i t r e f e r s not to a neutral narrative of any type, but less i n c l u s i v e l y and more narrowly to something closer to the common meaning given to " t a l e " ; that i s , based on f i c t i o n rather than on f a c t . If we take story (or narrative) to be the i n c l u s i v e term, for our purposes, types of s t o r i e s may vary from "accounts" (true to "fact") to " t a l e s " ( f i c t i t i o u s ) - and lawyers, for the p r a c t i c a l pur-poses at hand i n preparing for t r i a l , assume that what the Britannica World Language E d i t i o n of Funk and Wagnall's New P r a c t i c a l Standard Dictionary, V o l . 2, p. 1286. 128 c l i e n t says about What Actually Happened i s l i k e l y to be closer to a t a l e than to an account (an account being a l i t e r a l d e s c r i p t i o n of what can be thought to have natur-a l l y happened). If what the c l i e n t t e l l s him i s i n the lawyer's assessment close to what the lawyer thinks probably a c t u a l l y happened, the lawyer may say, "He didn't give me a story" - which case he i s using the term exclu-s i v e l y i n i t s meaning as " t a l e " and implying that the "truth" could not be c a l l e d a story; or he may say (and t h i s means something quite d i f f e r e n t ) : "I believed his story" - i n which case he i s implying that the truth can be c a l l e d a story because he uses the term i n i t s broader sense to include accounts and tal e s and the "ha l f - t r u t h s " i n between accounts and t a l e s . Though usage i n the l e g a l community varies and "story" i s sometimes used to r e f e r to narratives that are taken to be accounts rather than t a l e s , the t a l e connotation i s the I am not concerned for the purposes of t h i s thesis with possible p h i l o s o p h i c a l problems regarding the status of "What Actually Happened" and how t h i s r e l a t e s to truth values assigned versions, but rather with how the lawyer assigns d i f f e r e n t p r a c t i c a l values to competing versions as a p r a c t i -c a l accomplishment contingent on how he expects these ver-sions to be defined i n the p r a c t i c a l business of an on-going court case. Melvin Pollner gives an excellent treatment of What Actually Happened as a problem i n phenomenology. See Melvin Pollner, "On the Foundations of Mundane Reasoning", Unpublished Doctoral D i s s e r t a t i o n , (Santa Barbara: Univer-s i t y of C a l i f o r n i a , June, 1970). 129 most usual usage. I w i l l use "story" and "narrative" interchangeably as the i n c l u s i v e general term to r e f e r to the substantive material that the c l i e n t o f f e r s about his case, or to anything that purports to be a version of events; with connotations of "account" and " t a l e " r e f e r r i n g not to the t r u t h value i n any absolute sense, but to how these terms are used i n the s e t t i n g . Without exception, the lawyers that I interviewed claimed to be of the opinion that most people who get charged with a crime and taken to court a c t u a l l y "did i t " 1 and hence are more l i k e l y to t e l l a "story" (tale) than "the t r u t h " , since the truth i s not l i k e l y to be i n t h e i r best i n t e r e s t s i n beating the rap. Criminal lawyers claim that most of t h e i r c l i e n t s i n e v i t a b l y " t e l l s t o r i e s " . They claim that criminal s t o r i e s range from obviously conscious and premeditated d i s t o r t i o n s of "everything they think they can get away with" to s t o r i e s that are a r e s u l t The following comment i s t y p i c a l : Lawyer B: "Sure ninety-nine percent of our c l i e n t s are g u i l t y i n the sense that they a c t u a l l y did i t . They ac t u a l l y robbed the bank, beat up the old lady, or ripped o f f Safeway. But whether or not they are t e c h n i c a l l y , l e g a l l y , provably g u i l t y i s another question. Do the cops have enough on them -that's what the law i s a l l about." The philosophical r a t i o n a l e (and also the lawyer's peculiar "moral" code) supporting the i n t r i c a c i e s of pro-130 cedural law which make g u i l t or non g u i l t a t e c h n i c a l , l e g a l matter of evidence and proof, i s that the law must be "loaded" i n favour of protecting the "innocent" from conviction. If there i s "Reasonable Doubt" of g u i l t , the judgment must be i n favour of non g u i l t . I t i s deemed better that a c e r t a i n percentage of the "actually" g u i l t y go free than that a few ac t u a l l y "innocent" are convicted. If criminal lawyers are correct i n t h e i r assumption that ninety-nine percent of t h e i r c l i e n t s "actually did i t " , i n most instances where they win a c q u i t t a l s they are "protecting the g u i l t y " . This i s close to the p o l i c e version of the defense lawyer's work. Po l i c e f e e l the people they charge are " g u i l t y " and should be punished and that i n "getting them o f f " lawyers are cheating j u s t i c e . We have seen that i n merely being charged and going through the system the accused i s inconvenienced (especially i n awaiting t r i a l i n j a i l ) and "punished" regardless of whether or not he i s t e c h n i c a l l y found g u i l t y and sentenced. Law-yers claim that sometimes there i s a tendency for the accused to want to plead g u i l t y i f he "knows" he "did i t " , but does not understand that he may not have t e c h n i c a l l y in-the-law committed a crime. One lawyer (Lawyer I) talked of instances where the accused would rather have a record than go through the inconvenience of taking the case to t r i a l . He would rather "get i t over with" by a g u i l t y plea. 131 of unconscious self-deception . One lawyer aptly ex-pressed t h i s idea t h i s way: Lawyer T: "A l o t of the times, s t o r i e s just subconsciously grow - they are not obvious premedi-tated l i e s . F i r s t they see things d i f f e r e n t l y than they knew they a c t u a l l y were, and then they quite na t u r a l l y l e t the d i s t o r t i o n s grow. You sense you're i n trouble and you automatically restructure things i n such a way as to get your-s e l f out. Many c l i e n t s a c t u a l l y believe t h e i r own s t o r i e s - e s p e c i a l l y when they get o f f . Getting o f f r a t i o n a l i z e s a l l the reasons and excuses they dug up to begin with, and they actu-a l l y s t a r t to believe t h e i r own s t o r i e s . " Kurosawa's f i l m "Rashomon" deals very e f f e c t i v e l y with the topic of d i s t o r t i o n s i n versions of events. The f i l m i s set i n 8th Century Japan. Three Japanese peasants are caught i n a rainstorm and shelter together i n an old r u i n (Rashomon Gate). One of the peasants, a woodcutter, t e l l s the others he has just been to "court" to give evidence i n a t e r r i b l e murder case. He explains that he discovered the body of a Samurai out i n the f o r e s t while going to cut wood. He goes on to say that i t i s a very strange case because each witness c a l l e d to give evidence has a d i f f e r e n t version: F i r s t a notorious bandit hero i s captured and brought to court. He t e l l s his story. He claims that he k i l l e d the Samurai a f t e r crossing swords with him twenty-two times i n a duel over the Samurai's wife whom he seduced a f t e r t r i c k i n g him and tying him up. He claims that i t was not his inten-t i o n to harm the Samurai, but that he fought the duel on the insistence of the seduced lady whose l o y a l t y he had won as a consequence of seducing her. The lady i s brought to court and t e l l s a d i f f e r e n t story. She says the bandit t r i c k e d and t i e d up her husband, and that she fought him v a l i a n t l y with her small pearl dagger u n t i l she was exhausted and had to give up. The bandit then raped her and ran o f f through the woods. He husband who had witnessed t h i s then looked upon her with complete eternal contempt. She asks her husband to k i l l her. He refuses. She f a i n t s i n anguish. When she wakens, her husband i s dead with her pearl dagger i n his breast. She runs o f f t e r r i f i e d and t r i e s to drown herself and then to k i l l h e rself i n other ways, but a l l a t t -132 empts f a i l . She i s not sure who thrust the dagger i n her husband's breast - whether i t was h e r s e l f , or the bandit, or her husband himself. Next a medium i s c a l l e d to commune with the dead Samurai so that his story may be heard through her. In t h i s way the Samurai's story i s t o l d . He says that a f t e r the rape his wife cuts him loose so that he may f i g h t for her honour, but that he f e e l s comtempt for her and w i l l not f i g h t for her. Instead he chooses to die honour-ably on his own sword. It i s obvious that none of these versions i s What Actu a l l y Happened; and the court cannot choose. The peasant who i s r e l a t i n g these versions to the others caught i n the storm ends up confessing to them that he himself has not t o l d the truth. He then says that he i n f a c t came upon the scene of the crime not a f t e r , but before the murder. He then t e l l s a fourth version of events. He claims that a f t e r the Samurai i s bound, the lady allows the bandit to seduce her. After the seduction, f i r s t her hus-band scorns her and says the bandit i s welcome to her. The bandit then scorns her. She then shames them both and i n c i t e s them into a duel i n which the bandit slays the Samurai a f t e r a clumsy and f a i r l y cowardly f i g h t . He then scorns the lady and runs o f f . The viewer i s lead to sense that t h i s story i s probably closer to the t r u t h than any one of the versions given by the three protagonists but that i t s t i l l i s not What Act u a l l y Happened. The peasants observe that a l l men l i e i n order to make themselves seem better than they a c t u a l l y are and to protect t h e i r own i n t e r e s t s . Such i s human nature. There i s no truth to be got from the mouths of men. Even a dead man beyond the grave w i l l r i s k his soul before the gods by l y i n g i n order to protect his own image and his memory i n the eyes of men. 133 "Story" (usually meaning tale) i s the accepted term i n the law community jargon, used by lawyers, p o l i c e , judges and prosecutors a l i k e (and often by the s t o r y - t e l l e r himself; that i s , by the accused, e s p e c i a l l y i f he i s a repeater). However, the defense lawyer treats what the c l i e n t t e l l s him as a "story" only insofar as he has to; that i s , he monitors the c l i e n t ' s story for p r o v a b i l i t y and c r e d i b i l i t y and d i s -cards i t only i f he f e e l s i t w i l l not stand up i n court or i f there i s a more e f f e c t i v e defense to the case. He w i l l not discard i t simply because he himself does not believe i t ; however, i t i s a very p r a c t i c a l strategy for the lawyer to t r e a t the c l i e n t ' s story as f a l s e , for t h i s i s the way i t w i l l be treated by the prosecutor i f i t goes to court. Part of the lawyer's c r e d i b i l i t y t e s t i s i n monitoring the story to see i f , i n his own estimation, i t i s l i k e l y to stand up to the onslaught of the prosecutor. If i t stands up to t h i s , then i t i s possibly usable i n court. In order to a r r i v e at the truth by cross exami-nation, a judge or lawyer must assume that the person questioned has been l y i n g ; only i n t h i s way can he test that person's evidence. He therefore proceeds i n cross examination as i f he believed and assumed the examinee to by l y i n g . 1 Given that the explanations, reasons, elaborations, etc. that the accused "comes up with" are normally regarded as a Gluckman, The J u d i c i a l Process Among the Barotse of  Northern Rhodesia, p. 96. 134 "story" ( t a l e ) , lawyers have categories for c l i e n t s ' s t o r i e s : there are " l i k e l y s t o r i e s " , "the same old story", "hopeless s t o r i e s " , "wild s t o r i e s " , "good s t o r i e s " , etc. However, whatever the story, the lawyer must b o i l i t down (sometimes possibly v i a the l a t t e r categories) into "usable i n court" or "not usable i n court" given how, i n his assessment, the story f i t s with i t s bearer, the charge, the p o l i c e report, the lawyer's ideas of judges' c r e d i b i -l i t y c r i t e r i a and of judges' whims and f o i b l e s , and what he takes to be other relevant f a c t o r s . Even i f not usable per se i n court, the story i s nevertheless s t i l l part of the basic raw material out of which the lawyer constructs his case: he uses i t as a resource for deciding where the weakness i n the prosecu-tion's case may l i e and a source of what questions to ask i n cross examination and a source for what to imply i n summing up and i n speaking to sentence, etc. Lawyers see what c l i e n t s t e l l them about What Actually Happened as " s t o r i e s " (tales) because of the s i t u a t i o n i n which they are t o l d : here i s someone whom the p o l i c e have seen f i t to haul i n and charge i n a criminal matter; further-more he i s on Legal Aid (and therefore doesn't have a penny i n h is pocket) and i s a sort of "down and out". Such a person has everything to lose by " t e l l i n g the trut h " which 135 would probably mean "confessing". It i s natural for such a person to t r y to " l i e his way out of i t " . So lawyers em-ploy t y p i f i c a t i o n s about people who come into t h e i r o f f i c e s through Legal Aid on criminal matters, and they bring these t y p i f i c a t i o n s into play i n assessing the c l i e n t and his story. I f , for instance, the c l i e n t i s charged with petty the f t and has a record for the same, the lawyer w i l l take i t before he walks i n the door that the c l i e n t i s a petty t h i e f , and that he has an " u l t e r i o r motive" i n t e l l i n g the story that he t e l l s to the lawyer; he i s going to say whatever he thinks he has to say i n order to get out of the "jam" he i s i n . These are the intents and purposes for which the law-yer sees the c l i e n t as bringing t h i s story to t h i s occasion. I t i s not only the features of the story i t s e l f that have a bearing on i t s assessment by the lawyer, but also the fea-tures of the s i t u a t i o n i n which i t i s t o l d , the nature of the charge and the c h a r a c t e r i s t i c s of the t e l l e r and his s o c i a l and l e g a l s i t u a t i o n . Starting from (not with) the assumption that s t o r i e s are t o l d to do work f o r the story t e l l e r - to somehow improve the predicament that he i s i n or to assuage his feel i n g s about i t , we w i l l f i n d out more exactly what kinds of work c l i e n t s ' s t o r i e s do and how they do i t - and the work that lawyers do with s t o r i e s by analysing the features of actual s t o r i e s and of the p r e - t r i a l s i t u a t i o n i n the lawyer's o f f i c e . 136 C l i e n t s do not come i n t o the i n t e r v i e w and t e l l the lawyer what they t h i n k A c t u a l l y Happened or "any o l d s t o r y " , but u s u a l l y a ve r y p a r t i c u l a r c o n s t r u c t i o n o f e v e n t s . T h i s c o n s t r u c t i o n i s e l i c i t e d , r e c e i v e d and assessed by the law-yer r o u t i n e l y i n ve r y p a r t i c u l a r ways, c o n t i n g e n t on the p r a c t i c a l i m p e r a t i v e s of p r e p a r a t i o n f o r c o u r t , of p r o c e s s -i n g a stream of c l i e n t s and of b u i l d i n g up a p r a c t i c e . We can assume t h a t the c l i e n t ' s c o n s t r u c t i o n i s u s u a l l y made up of two k i n d s of elements: what they remember t o have l i t e r -a l l y o c c u r r e d and what they i n v e n t i n c o n t r a d i c t i o n , d e l e t i o n and/or a d d i t i o n t o what they remember as having a c t u a l l y o c c u r r e d . Lawyers b r i n g c e r t a i n c o n s t r a i n t s to bear on c l i e n t s i n t e l l i n g t h e i r s t o r i e s i n order to i n h i b i t i n v e n -t i o n and i n order t o shape and c o n t r o l the f e a t u r e s of the s t o r y i t s e l f . The f i r s t and s t r o n g e s t of these c o n s t r a i n t s are the p a r t i c u l a r s . IV THE PARTICULARS AND THE STORY We have seen t h a t the f i r s t t h i n g t h a t the lawyer does a f t e r g e t t i n g p r e l i m i n a r y f a c e sheet d a t a from the c l i e n t i s t o read t o him the p a r t i c u l a r s1. The c l i e n t i s I t sometimes happens t h a t a lawyer i n t e r v i e w s a c l i e n t b e f o r e the p a r t i c u l a r s are a v a i l a b l e to him. In such an i n t e r v i e w i t i s obvious t h a t the lawyer i s t o a g r e a t extent i n c a p a c i t a t e d by not having the p a r t i c u l a r s . He w i l l get the c l i e n t ' s s t o r y and stack i t up a g a i n s t h i s assumed i d e a of what the p a r t i c u l a r s would be l i k e f o r such a c l i e n t on such a c h a r g e , but he postpones making any d e c i s i o n on what t o do w i t h the case u n t i l he has seen the p a r t i c u l a r s - a t which time he w i l l p robably i n t e r v i e w the c l i e n t a g a i n . 137 not f i r s t asked for his story, but i s f i r s t asked to l i s t e n to the o f f i c i a l p o l i c e version of the events that eventuated i n his a r r e s t . The lawyer has p r a c t i c a l reasons for f i r s t confronting the c l i e n t with the p a r t i c u l a r s : (1) I t s t a r t s the interview o f f on an o f f i c i a l business-like l e v e l and establishes the p a r t i c u l a r s rather than the c l i e n t ' s story as the o f f i c i a l standard. (2) Lawyers believe that hearing the p a r t i c u l a r s f i r s t has the e f f e c t of influencing the c l i e n t to t e l l a story that i s structured by the form, length and content of the p a r t i c u l a r s , and hence i s shorter and more to the point than i t would have been i f t o l d apart from the influence of hearing the p a r t i c u l a r s f i r s t . The lawyer does not want to waste time l i s t e n i n g to " i r r e l e v a n t " d e t a i l s and he does not want to hear obvious " l i e s " (that i s , unprovable statements that the prosecutor can e a s i l y expose i n cross-examination as being u n l i k e l y or untrue). If the lawyer f i r s t heard one version from the accused and then read him the p a r t i c u l a r s and then the c l i e n t offered a d i f f e r e n t story, the lawyer would be prevented from using either story because the c l i e n t has obviously " l i e d " i n one or both versions and e t h i c a l imperatives prevent the lawyer from knowingly allowing the c l i e n t to deceive the court. (3) In court the p a r t i c u l a r s are granted the status of standing f o r what a c t u a l l y happened unless the defense can prove (show reasonable doubt) otherwise. This i s a working condition imposed by the system on the lawyer : the onus i s 138 on his c l i e n t ' s story to "beat" the p a r t i c u l a r s rather than vi c e versa, and so the lawyer has l i t t l e choice i n p i t t i n g the p a r t i c u l a r s against his c l i e n t . He nevertheless hopes that his c l i e n t w i l l o f f e r a story that can be worked up into a proof against the charge. The structure of the interview and of the lawyer's work require that the c l i e n t speak to the p a r t i c u l a r s . In asking the c l i e n t to speak to the p o l i c e version; that i s , to t e l l h is story comparatively using the p o l i c e story as a basis, the lawyer sees the p a r t i c u l a r s as constraining inven-t i o n . The lawyer requires the c l i e n t to t r y to come to terms with the p a r t i c u l a r s as a contracted and incomplete version of what he w i l l have to come to terms with i n court i f he i s to give his story i n defense of the accusation. F i r s t reading the p a r t i c u l a r s to the c l i e n t does indeed seem to have the e f f e c t that lawyers