My remarks are personal and tentative - there are probably more mistakes I have made. Perhaps I am unaware of them or perhaps I choose to remain unaware.
It is embarrassing to admit. I encourage you to tell me what your experience has been with lawyers' mistakes because you can help me learn from my mistakes.
Secondly, I am applying to Court to force the Government to pay for a Fetal Alcohol Syndrome Assessment for my client - he is going to jail.
1. I assumed like most young offender clients that their problems were fixable given the standard terms of Probation Orders and Orders.
2. I assumed that the my FAS client could tell the Judge what happened in a way that would make sense.
3. I assumed that they would be able to demonstrate remorse to the Judge.
4. I assumed that after they got caught the third or fourth time for the same offence in the same set of circumstances that they would learn at least to get caught for either other offences or wear gloves.
5. I assumed that they understood the notion of consequences - steal from cars you go to jail.
6. I assumed that they understood the notion of time - 3 days in jail is not the same as 3 months.
The next mistake I made is I failed to tell my clients the same lawyer/client instructions over and over again. I assumed that because we had been to Court many times that my client knew that he should not interrupt the Prosecutor during a Show Cause hearing, correct his facts and therefore admit that he was there and that he did it.
I failed to discuss with the parents the apparently "crazy" situation although I knew the parents and I knew that the parents had severe drinking problems and a history of drinking problems for years, I never asked more about the home family life and I never asked my client about his parents' drinking.
I was always puzzled and I failed to understand that there was a good reason that in the PSRs my client came across as very well. He gave good PSRs and I failed to understand that the reason he was so candid and up front and straight ahead, is he just didn't understand how to play the game and that he was suggestible easy to get to say the answer PSR writers sought.
I failed to consider that there are some offences, some situations which I should have considered NCRMD applications - at least then I might have begun to get some psychology, some neuro psychology information.
I failed to consider Charter breaches although I found that most Crown were very helpful in reducing a number of the charges. I never twigged to the fact that he has a three page Criminal Record and he plead guilty every time and that there was a behaviour problem at the brain level. I failed to look past "antisocial disorder".
Another mistake I made is I failed to consider a psychological assessment at any time because my client seemed so pleasant and he didn't seem to have any outward signs of what I would call psychological difficulties. He did not have any drug or alcohol problems and I failed to understand that there must be something wrong with his brain.
I failed to see behind my client's cheery, positive presentation itself that there was another problem. Like most Judges and police officers and probation people, my client was not a really bad kid.
I failed to ask for the Social Services records on the family and I never did take a look at his early medical records. In fact, I never looked at any medical records.
I failed to note that almost always my client was the Number 2 or Number 3 person involved in the offence and that he was the one who was always caught. I never quite twigged to the fact that there must be a reason the other people involved in the offence seldom got caught.
I failed to see that there was no real escalation in offences and because of this lack of escalation, that perhaps there wasn't a real criminal element here. Perhaps there was just an absolute moment by moment I want, I take mechanism as opposed to some sort of deeply ingrained refusal to follow rules.
I failed to understand that sometimes when my client was telling me the story there were blanks in his memory where part of the story just wasn't there, that he just didn't remember, didn't know. I failed to take detailed instructions of the offences.
I failed to understand the nature of impulsive activity and because my client told the stories in sort of a sort of amusing and funny way to both me and the police officers, I failed to see past his rather humorous presentation of self.
I failed to get written instructions. My thinking here is that had I sat down with my client and got him to write out his instructions, that it might have some sort of ability or some way of getting the message to sink in. Here perhaps I am still hanging onto denial in terms of not understanding the scope of the brain injury.
I failed to see that jail had no affect on my client's behaviour and the main reason he didn't want to go to jail was because he couldn't be with his friends. But that if he did go to jail with his friends it seemed to have no impact on him at all.
I failed to talk to other lawyers and other probation officers about the particular set of facts that kept reappearing. It only twigged to me after some six years of dealing with one client before I asked a senior probation officer who quickly volunteered that it was probably Fetal Alcohol Syndrome.
I never asked my client's mother directly about her drinking. Perhaps out of some sort of misinformed political correctness or perhaps because I am too shy and I didn't want to embarrass her and perhaps because she was an aboriginal woman who clearly had too many difficulties to begin with and because she was almost always in tears when her son was in jail, I never really asked her about her difficulties so I didn't understand the family context.
Although I acted for most of the family members, I never sat down and drew out a family tree and tried to figure out who was who and who in the family had what particular problem. It just seemed to me to be something that I never put in place. I never put into place structures that would help my client with follow through.
I mean here that my client often did not follow through with basics like certain appointments, being on time, going to the right places, doing the right things and I always tried to simplify Probation Orders to make it as easy as possible because I thought my client just could not handle complex Orders.
I didn't understand that this inability to handle complex notions of responsibility and consequences were something I should have considered.
I failed to sit down and write out all of the various excuses for the various offences. Had I written down on one page the 10 or 15 excuses for some of these offences and had a look at them, I would have asked for some psychological help but I kept treating each offence in isolation not understanding that it was the same crazy offence or even more outlandish rationalizations or simple minded explanations.
I failed to understand that within the aboriginal community several aunts distantly related understood there was a problem and instinctively took care of my client for various periods of his life but it was during those periods of intense supervision that he was crime free but as soon as that supervision went away or the aunt went to visit somebody in Alert Bay or somewhere bingo he was back in jail.
I never put together the constant supervision by an appropriate parental authority and the lack of crime. I never understood that there was a problem because almost all of the crimes were of an acquiring of household goods or immediate pleasures as opposed to any other sort of violence or any kind of sophisticated planning.
I didn't understand that almost all of the offences were spur of the moment sort of things with the lack of any planning or forethought. The best example is the hairdresser and the cops at the doughnut shop story.
The biggest mistake I have made is my lack of political awareness and I have just recently become aware that my mistakes which my client is going to pay the most for, is I failed to understand the degree of government complicity in his criminalization.
I failed to understand that if he was an elderly man with Alzheimers he would be getting some services but because he is a 20 year old native male with a long Criminal Record, he is labeled anti-social and put in jail - end of story.
My process of education has been an accelerated learning curve and unfortunately my client is suffering because I had to learn the hard way.
Dated: February 24, 2001
Barrister and Solicitor
Coquitlam, British Columbia
MINISTRY OF ATTORNEY GENERAL
Victoria, BC V8V 1X4
Barrister and Solicitor
Suite 206 – 2922 Glen Drive
Coquitlam, B.C. V3B 2P7
Fax: (604) 945-2063
Minister of Children & Families
PO Box 9057
Station Provincial Govt
Victoria, BC V8W 9E2
Other Canadian government officials can be found here: http://www.canada.gc.ca/directories/direct_e.html