To ask how defending Lawyers/Solicitors sleep at night.

(461 Posts)
lollilou Tue 09-Oct-12 10:43:43

When they are defending someone who is accused of a horrible crime and that they know are guilty yet have to come up with a defense to try to get a not guilty verdict? It must happen a lot, how could you live with yourself in that situation? What if the accused gets off then commits another crime?

JennaMoroney Tue 09-Oct-12 13:56:28

thEIR belief in the right to a fair trial, the belief that there's no better system, the belief that they're entitled to a nice fat salary! (joke)

higgle Tue 09-Oct-12 13:59:00

Those who do criminal defence work usually act out of a sense of vocation, it is paid far less than most other legal work.

mustbetimetochange Tue 09-Oct-12 14:00:43

But you are allowed to defend someone you believe is guilty - as long as they haven't confessed

Because they must only care about the sum of money they'll recieve.

amillionyears Tue 09-Oct-12 14:02:51

Pinkforever,would you say that there are some defence lawyers who like defending those that they think are guilty of the crimes? Any at all?
And do defence lawyers have any choice in which cases they get to defend?

Bluegrass Tue 09-Oct-12 14:11:18

"Because they must only care about the sum of money they'll recieve."

Really? Seriously? You don't think it might be because they realise that under a civilised legal system a guilty person cannot be punished for their crime until they have been tried, and that trial requires someone to defend them, not halfheartedly but to a required level of professional competence.

Unless you want to live in a police state where people can be locked up on a whim you should thank defence lawyers for doing a difficult job that helps put criminals behind bars. I know I wouldn't want to do it (and I say that as a lawyer).

TandB Tue 09-Oct-12 14:22:47

How? Well let's see:

a) because not everyone who is arrested is guilty. Which is why our justice systems based upon 'innocent until proven guilty' not 'no smoke without fire'.

b) because the vast majority of our work involves representing people with multiple and complex problems - social, mental, drug and alcohol related - and helping them through the system, and helping the system reach the appropriate decision as to how best to deal with them.

c) because we are officers of the court, with a duty to assist the court to deal with cases in the most appropriate and efficient way, and without us advising people that they should be pleading guilty, there would be many more wasted trials and many more witnesses dragged to court unnecessarily

d) because our justice system is complex and most people will need assistance to navigate it, and it is in everyone's interests that people are represented

e) because our justice system does not pre-judge people. It leaves that to the bench or jury. Everyone has the right to be represented and no individual has the right to decide who is worthy of justice, and to deny them access to it

f) because the vast majority of us are confident that we always give the appropriate advice and act in accordance with our duty to the court

Of course there are crap lawyers who don't care about any of this. But then again there are crap teachers, crap policemen and crap vets, but those professions tend not to get tarred with the same brush as their poor representatives.

Timetochange. - so sorry you had a bad experience, but even if that one barrister was genuinely crooked, that doesn't mean the whole profession is . And what you have described is basic cross examination. There was a time when x-examination tended to be put in terms of 'I suggest to you that [insert defence] happened.'. That came to be considered bad practice and now most judges prefer just a straightforward 'this what happened, isn't it?' approach. A defence lawyer has an absolute duty to 'put the case' of the defendant to each pros witness. That means telling the witness what the defendant says and giving them the chance to respond to every single bit of it. The defendant is not allowed to assert something unless the witness has been challenged on that point.

TandB Tue 09-Oct-12 14:25:41

Oh and fat legal aid salaries? Excuse me while I piss myself laughing. As a partner in a small London firm I couldn't afford to go back full time after second baby as childcare was more than my salary. I would earn more as a commercial legal secretary.

Jenny70 Tue 09-Oct-12 14:27:35

And if the "guilty" didn't receive any legal represenation (because we all know they did it, despite them saying they didn't) - who decides who does get a lawyer?

Does no-one deserve a defense against charges?
Some people?
Only ones with blue eyes?
Maybe no-one on benefits should get a lawyer, because they're already claiming "so much money" from the govt?

So saying "only the guilty ones" shouldn't be entitled to lawyers, due process, tricky defences, mitigating circumstances etc - means someone has to decide where to draw that line - which comes with many, many prejudices....

Safer and fairer to give all people fair representation - if the police didn't get a search warrant and evidence is dismissed, don't blame the lawyer, blame the police that overstepped the mark. If another suspect has not been questioned, or another person may have equally done the crime on the evidence to hand, then blame the prosecution for not proving their case.

Or better still, blame the people who are guilty of the crimes - not those that are representing them.

aziraphale Tue 09-Oct-12 14:45:30

mustbe - I'm very sorry to hear of your experience. I am curious as to whether the judge set out the legal tests to which the evidence had to be put - the "burden of proof" - because the lines of questioning can seem ridiculous or outrageous without understanding what the barrister is trying to do (e.g. to shake the belief in a witness' credibility to establish reasonable doubt) etc. Remember of course that the jury decides on whom it believes and the actions of the defence barrister are often designed to shake the credibility - not for the judge, for the families, the audience or the police, but the jury.

I would also mention that if we didn't have people to represent the guilty then by the same token we could not have people to represent the innocent. These people do an incredibly important job to the infrastructure and general fairness of British justice - often poorly rewarded (please don't ever think people go into crime defence for the money! Speak to a duty solicitor at a police station and they will give you a truer picture.) It takes a huge amount of objectiveness, impartiality and professionalism to do what they do. Not appreciating that would of course lead you to think that they were callous or inhuman. They, like emergency services workers or social workers, take unpalatable experiences home with them at night and have to live with them.

One more thing - the justice system in this country is often perceived as cruel - cross-examination of children, undignified forensic analyses and psychological profiling of non-offenders to name a few features. It's not the justice system's fault that this has to take place. We have the false accusers to thank for that.

mustbetimetochange Tue 09-Oct-12 15:07:43

kungfu he didt put forward an alternative scenario - he put and out said I was a liar who had made up an entire scenario - he said that none of it happened and I was a liar.

It was in evidence in black and White that it did happen.

And I was not a witness - he spent 3 solid days accusing me of lying about all sorts of stuff, while I had no recourse.

The judge did refute this in summing up - his exact words were the jury "weren't to speculate on what someone who wasn't a witness may or may not have said" - that's 1 single sentence that did t mention me by name - as opposed to 3 days of "mrs x this, mrs x that, mrs x the other.

I was assured by the police that what happened wouldn't happen - that the case would not turn into a "slanging match" about me - that or wouldn't be allowed - (as a family we predicted it) and it exactly what happened - it was not a fair trial - because every single part of our lives was fair game for the defence - whereas nothing about the defendants was.

They attacked what people were wearing in the public gallery, who was in the public gallery and when.

I could go on and on and on.

I could mention up that one of the jurors was ASLEEP for the prosecution summing up.

But the poor conviction rates speak for themselves - everyone is entitled to a fair trial yes, but that should also include the victim, who has no legal representation through this process.

As i have said this is not just my experience but a tale that can be retold by countless victims of rape and sexual assault - which are at the moment almost unpunishable crimes in this country.

Are we really saying a conviction rate of 6% is good enough - that 94% of people reported to the police for crimes of this nature are innocent?

I understand the system we have - but it isn't working - and most people involved in it know it - which is why there have been so Manu reports and schemes and suggestions into how to improve it.

amicissimma Tue 09-Oct-12 15:08:37

There's a play starring Tom Conti, called Rough Justice touring at present. It gives some interesting food for thought on the subject.

This thread is interesting in the light of the furore surrounding Jimmy Saville at the moment. I notice that sometimes people who suggest that the evidence against him has not been objectively assessed are met with accusations that to say this equals accusing his (probably I should say alleged) victims of lying.

Woozley Tue 09-Oct-12 15:11:56

Because they are upholding the law of the land, that anyone is entitled to a proper defence.

mrsrosieb Tue 09-Oct-12 15:27:31

I used to date a defense barrister and asked him exactly the same question.

He dumped me then and there!

mayorquimby Tue 09-Oct-12 15:36:31

"But the tactics, scaremongering, blatant lack of integrity among many a defence lawyer, just to win the case is DISGUSTING. "

we don't win cases, the prosecution fail to discharge the requisite burden of proof.
It's not up to barristers to pass judgment on the innocence or guilt of anyone, if that's the system you want whereby whether or not someone is guilty is to be decided by individual barristers unilaterally then it's a worrying prospect.
For my part I sleep fine at night because we act in the interests of justice and our primary obligation is to the courts.

mustbetimetochange Tue 09-Oct-12 15:39:35

The therapist we are says she hears the same stories, over and over again - someone unthread said it's not the courts job to find the truth - I agree and I have heard that from a barrister friend.

I would prefer it if like the french magistrate or the coroners court it was the courts job to find the truth - rather than what we have now which is basically a lottery of which barrister can play the same game of chess.

mayorquimby Tue 09-Oct-12 15:43:21

""My child relayed the events of that night to the court and the barrister told him that it hadn't happened, that I was a liar and I had lied to my own son.

How is that anyone other than the barrister lying to the court.""

that's not lying to the court or making up defences. That's putting a statement to a witness which they can verify or refute. And most likely it has stemmed from their clients instructions.

"Because they must only care about the sum of money they'll recieve."

Have you ever worked as a criminal defence barrister confused there's fuck all money in it.

"And do defence lawyers have any choice in which cases they get to defend? "

Taxi rank rule. obliged to take what comes your way.

amillionyears Tue 09-Oct-12 15:46:09

mayorquinby, is not your primary obligation the truth?

aziraphale,your last paragraph of your last post.
I could be reading it wrong because I have limited experience of the justice system
Are you saying it is false accusers that cause the justice system of this country to do possibly cruel cross examination of children?

JennaMoroney Tue 09-Oct-12 15:47:38

fuck all money in being a barrister?!!!!!!!!!!!!!!!!! come on.

DesperatelySeekingPomBears Tue 09-Oct-12 15:54:06

Jenna, there really isn't in comparison to other areas of the legal profession. It always was the worst paid area but the arse completely fell out of criminal law when the government made huge cuts in legal aid.

It's affected all areas of law that are primarily legal aid. I work in immigration/asylum in a practice where 99% of the work is funded by legal aid and I earn less than the average teaching assistant with the bare minimum of holidays and no pension.

mayorquimby Tue 09-Oct-12 15:59:06

"fuck all money in being a barrister?!!!!!!!!!!!!!!!!! come on. "

criminal defence barrister.

"mayorquinby, is not your primary obligation the truth?"

primary obligation is to not mislead or lie to the court.
It's semantics as to truth/justice/ the courts, the main point is that while we do have a duty to defend our client and to put forward the strongest defence possible our primary obligation is still to the courts. As such if a client tells us they're guilty we can't put them on the stand knowing they are going to lie etc. nor can we tell the cout that they are not guilty. In such a situation you would most likely recuse yourself as subsequent instructions are most likely going to be in conflict with that first piece of information meaning that you won't be able to fully act on instructions, or in the very rare event that you remained instructed in that case you would put the other side on proof. i.e. not put forward any information which is false or states the innocence of the accused, but instead focus on whether or not the prosecution has discharged their requisite burden of proof in satisfying the jury beyond reasonable doubt.

mustbetimetochange Tue 09-Oct-12 16:00:46

mayor I don't think his line came from the defendant because he didn't continue with it - the OIC said he probably didn't press it with other witnesses (including OIC) because the defendant would have confirmed it did happen during recess and also it was recorded as happening in evidence so he would have realised that it wasn't a lie as soon as there was a break.

aziraphale Tue 09-Oct-12 16:01:52

amillionyears - no, I wasn't saying it directly, apologies if I wasn't clear. My point was that the thorough approach of a defence or prosecution barrister in cross-examination and other features of advocacy (and in gathering evidence) is partly because of the history of miscarriages of justice (and false accusations, perjury etc) in this country and the ongoing efforts of the courts to avoid these mistakes at all costs.

mayorquimby Tue 09-Oct-12 16:06:00

fair enough mustbetime,
we weren't there and you were so it's pointless to have any debate about it, and it's obviously an incident which holds no great memories for yourself so I don't want to argue with you for the sake of it or even enjoyment of it (as debate on these boards often are for at least one side), I'd like to hope that what happened to you is not often repeated by others.

suburbandweller Tue 09-Oct-12 16:06:18

A few people on this thread are under the misapprehension that all lawyers are paid megabucks. They aren't - criminal law is not at well paid for the vast majority of solicitors/barristers, although there are a few very top criminal QCs who probably do pretty well for themselves. In fact, the minimum wage for trainee solicitors has just been scrapped so criminal lawyers may well be paid national minimum wage in training from now on. No one goes into criminal law for the money.

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