Books, Canada, Litigators

The View From Up North: What Are You Reading For The Holidays?

Twenty leading litigators talk about some of their most celebrated cases.

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You know what really sucks? The duty of confidentiality forced on lawyers by an archaic legal system. We live in a society where every epic fail is captured on a phone-cam for the world to see. We love that junk. Yet, who has some of the juiciest epic fail stories to tell? Lawyers. And, who is prevented from sharing all the gory details with the public? Lawyers.

Stories about salacious divorces, horrific criminals, and unbridled corporate greed make the headlines every day. But reporters don’t have all the details. They don’t get to know what goes on under the solicitor-client cone of silence — those wonderful moments of human depravity that lawyers learn about their clients, which never see the light of day.

Truly society’s loss.

That’s why I enjoyed reading a new anthology called Tough Crimes. It’s published by a small publishing house in Calgary. The editors zipped all over Canada and talked to prominent lawyers about their most memorable cases. They managed to get twenty well-respected advocates, including Eddie Greenspan, Earl Levy, John Rosen, and Marie Henein, to talk about a case that most stood out in their minds.

Some of the cases, Paul Bernardo’s murderous adventures, for example, shook the country and garnered international media attention. Other cases are less well known, but have something about them worth learning.

Are these stories as candid as they can be? Not likely. The defence lawyers who penned chapters still have that silly duty of confidentiality to consider. But, it is rare when you read about a prominent criminal case where the lawyer involved will walk you through both the narrative (from his or her perspective) and the ethical and moral considerations that overarched the entire case.

For example, John Rosen defended Paul Bernardo. At that time, John had nearly two hundred murder cases under his belt. Bernardo was different from all the rest. John is candid in saying the case fundamentally shook his core beliefs about his role as the defendant’s champion. He describes having to watch the videotapes of some of the terrible acts Bernardo and his then wife, Karla Homolka, committed on their victims. John is a father and was concerned his family would see him in a lesser light for defending an all-time scumbag. He had serious concerns that the case would damage both his health and his reputation. The media scrutiny was intense; the subject matter sickening; the evidence against Bernardo overwhelming. You could excuse a fellow for finding any reason to ditch the case.

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He did, however, what any ethical defence lawyer would do — he put his self-interest aside and went about doing his job, which was to provide the best defence possible for his client.

As a lawyer, I couldn’t do it. I am glad, however, the John Rosens of the world can. The justice system simply would not work if strong-willed and principled men and women did not stand up for the rights of the accused.

John details how he did the best he could for his client in the face of near sure conviction. In the end, Bernardo was indeed convicted. Yet, after the guilty verdict was read, he told John, “Well, at least I got a fair trial.”

I can’t imagine paying a defence lawyer a better compliment.

The chapter by Jian Ghomeshi’s knight-ess, Marie Henein, also stood out for me. Ex-Ontario Attorney General Michael Bryant retained her to defend him from charges arising out of the horrible accident that claimed the life of Darcy Sheppard.

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As you’ll recall, Bryant was driving home from an anniversary date with his then-wife, Susan Abramovitz. Darcy Sheppard, riding on a bike, confronted Bryant, who was driving with the roof down on a lovely summer evening. Sheppard apparently tried to get into the car. Michael swerved away and Sheppard fell to the ground, where he sustained fatal injuries.

Bryant was charged with manslaughter. The really interesting thing about Henein’s chapter pertains to the strategy in the case. As she notes, most defence lawyers play it close to the vest. The Crown has a duty to turn over all of its evidence to the accused. The accused has no corresponding duty. As a result, defence lawyers generally stick to a time-honoured strategy of sharing nothing with the Crown and waiting to see how the Crown’s case unfolds before deciding how to proceed. For example, based on how the Crown presents its evidence, the defence lawyer may decide to keep the accused from taking the stand.

In this case, Henein convinced Bryant that the best way to win was to lay all their cards on the table — a huge risk. She allowed the Crown to interview Bryant and his wife before the trial began. She provided the Crown with all the exculpatory evidence she planned to raise at trial. She felt once the Crown attorneys understood the totality of the evidence, they would agree there was no chance of convicting Michael.

If she was right, her client would walk without having to go through the horror of a lengthy, very public trial. If she was wrong, she was handing the Crown an incredible tactical advantage, one that might get her client convicted.

In the end, the Crown reviewed all the evidence and dropped the charges.

There is an important takeaway from this chapter. Henein mentions the best lawyering often takes place away from the courthouse. What happens before the trial is in many cases just as important as what happens during trial. This case, and its defence strategy, illustrates that point in spades.

The only thing missing from this story is a discussion of client management. Michael Bryant is a seriously intelligent guy. He has an LL.M. from Harvard. He clerked for the Supreme Court of Canada. Marie Henein asked him to sanction a risky defence strategy, one that is opposite of a typical strategy. You can bet he didn’t agree on a whim or without sober discussion.

I wish she would have told us about those strategy discussions with Bryant. I have never met Henein, but I suspect she inspires confidence in her clients. How else could she convince a man of Michael Bryant’s intellect, a man facing his worst nightmares, to open up the kimono? She championed this strategy because she had “unequivocal confidence in the strength of our case and in the firm belief that the objective facts, when fully exposed, pointed to one and only one conclusion: Michael’s innocence.” I would have liked to have been a fly on the wall when Henein persuaded her client to take such a huge gamble.

Overall, a fun book. Well worth the read. There are lots of interesting stories and important lessons contained in them. I would certainly recommend every law student read this book.

I jested about the duty of confidentiality getting in the way of lawyers spilling salacious details. But that sacred duty does get in the way of sharing knowledge between practitioners. The practice of law is not black and white — it’s fifty forty shades of gray. Lawyers have to make tough, nuanced decisions that lead to serious consequences. In many ways, Tough Crimes is a mentoring book. Reading stories from talented lawyers, seeing how they struggled with strategic and ethical concerns, is great way for young and old lawyers to learn.

That’s the View From Up North. Have a well-read week.

Steve Dykstra is a Canadian-trained lawyer and legal recruiter. He is the President of Keybridge Legal Recruiting, a boutique recruitment firm that places lawyers in law firms and in-house roles throughout North America. You can contact Steve at steve@keybridgerecruiting.com. You can also read his blog at stevendykstra.wordpress.com, follow him on Twitter (@IMRecruitR), or connect on LinkedIn (ca.linkedin.com/in/stevedykstra/).

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