The Initial Consultation in the H.T.A. Context
The phone rings, you book the meeting, and now you’re about to meet the nice gentleman named Joe Client. He has a ticket. What should be covered in the initial consultation? What shouldn’t be? I’ll attempt to explain the dos and don’t of the initial consultation. This will be applicable to both the client and the legal services professional.
The client should know what to expect and the professional may want to remember why we should be covering this.
Joe client comes in and says I have been charged with Speeding 140 km/h in a 100 km/h zone. Paralegal tells him “Don’t worry. I think the worst case for you is a 29 over. It still carries 3 demerit points but is generally classified as a minor to your insurance”. Client says Great. Paralegal doesn’t ask and it is subsequently discovered that Joe client has 12 points on his driving record. Resolving that way means a suspension of his driver’s license. NOT GOOD!
Jane Client walks in to see a paralegal and says I’ve been charged with Careless Driving. My insurance says if I get it reduced to at least a follow too close, then they can forgive it under the terms of my driver’s forgiveness clause in the policy. Great. Paralegal resolves to a follow too close but the client is a G2 driver and the 4 point conviction carries an automatic hidden suspension of 30 days. Insurance forgives the follow too close but penalizes heavy on the suspension. That coupled with the fact that your client can’t drive for a month and will be at least a year before being able to do their G2 exit road test for the full G will make for an unhappy client and to top it all off, make for an interesting E & O claim.
The problem I see day in and day out is that most people who do Highway Traffic Act work focus on the result too early. It’s easy to see a 20 over speeding ticket and know that barring something really bad, you’ll get a 15 and save the points for the client. It’s also easy to say to the client that you can probably save them their demerit points. That however may do them no good. It is important to resist the urge to take the easy way out and manage their expectations this early. It is important to focus on the result, or take a results oriented approach but planning a plea from the start is absolutely not what I mean.
Begin with the end in mind. What end do you see? If it’s pleading guilty then, you’re looking at the wrong end.You should be looking at some form of result for your client which means they have won. And by won I mean have nothing. This could be a withdrawal, a stay, a quashed certificate or information or an all out acquittal. You should be thinking that regardless of the odds. This is a necessary mindset as a professional. If you’re not focusing on how to actually win and on resolving, then (and as much as this is hard to hear (or read as the case may be)) YOU ARE NOT DEFENDING YOUR CLIENT! You read correctly. Regardless of the odds, your duty is to them, to protect their interests, and to get the best result for them.
That Law Society exam you wrote focussed heavily on the client. Every answer involved telling the client, managing expectations, fearless advocating, even doing things in bad taste but necessary to protect their interests. In case you didn’t realize. They weren’t kidding.
If you’re thinking “A lot of these offences are absolute liability and we’ll likely lose. You’re right. You’re actually more right when you give up at the beginning. It takes a certain kind of passion and energy to win. You may have it, you may not but if you say “I’m going to try to win” or “I’m probably going to lose”, you’re right both times. So let me make something clear in the event I haven’t already. YOU NEED TO START WITH THE IDEA THAT REGARDLESS OF THE ODDS, WHEN YOU START A CASE, YOU’RE GOING TO DRAG A RIVER AND UNTURN EVERY STONE TO FIND A WAY TO WIN!
With that, lets see how we can start that way. What information do you need from your client? Well to answer that we need some other things covered first. So lets arm you with some necessary information.
You must know what charges affect different classes of license
- You must know the insurance rating system
- You must know the various types of driver forgiveness programs and how the case will impact it
- You must know the procedures of the local court where the case is at so you can navigate it properly
There is more but these are absolutely crucial.
Novice and young drivers (those with an G1, G2, M1, M2 or 21 years and younger) get an automatic suspension of 30 days when convicted of any novice violation and young drivers also get one (regardless of license class) for any alcohol related offences under the Highway Traffic Act. Any novice driver who gets a 4 point or more conviction of any sort will also get a 30 day suspension. This isn’t written anywhere except in the acts and regs so the client usually has no idea that they can be suspended by simply paying this.
So that Stunt you want to resolve to a 49 over speed will land the client a suspension if he takes it.
You should get the following:
- When did the client first get their G1, their G2, etc. ?
- If they are a Novice driver, when do they qualify for the full license ?
- Any previous convictions ? (Important for last 3 years but longer history is good)
- Are they named on an insurance policy ?
- If so for how long ?
- Are they primary driver or occasional ?
- Has their insurance ever gone up or down ?
- What is their Star rating (Insurance Rating) ?
- Have they purchased driver forgiveness as part of buying insurance ?
- Any claims in the last 5-6 years ?
- What offences are excluded from driver forgiveness ?
- Is the client planning to purchase a new, different or additional car ?
- Without asking what happened (yet), ask if the client’s version of events will differ from the officers ? (Example A stop sign ticket where the client is adamant they stopped)
- If the case involves an accident, ask for ALL the circumstances surrounding the interaction with police:
- How many police officers were there ?
- How many were present when (and if) they spoke to them ?
- Were they cautioned ?
- Did they ask to speak with a lawyer or a paralegal ?
- Were they locked in the back of a police car ?
- Was it explained they didn’t have to make a statement ?
- Were they told they had to make a statement ?
- Who did the officer speak to first ?
- Is the officer they spoke to the same as the one who gave them the ticket ?
- There’s more but it’d be endless. Suffice it to say that this is the start of constructing your exclusion of any inculpatory statement.
- What does the client want or what would they realistically like to see happen with this case other than a win ?
- Were they alone or are there witnesses who may have been in the car or saw what happened?
While this list is not exhaustive, it is substantially more than I see on a daily basis. By covering all this information, you will have a much better idea of some important key things.
You’ll know where your client stands, have a better grasp of the offence, you’ll be able to assess your clients ability in the witness box, you’ll know the client is informed of their current circumstances, and you’ll have a good idea of what you need to do to start navigating towards that win. By beginning with this information, you’ll be that much further ahead in knowing the parameters in which to best serve your client.
Now that you know what you need to know, there are some important pieces of information you need to tell the client. There’s more than is written here but if you arm yourself with the list of Need to Know information above, you should have no trouble in advising your client.
- If you’re client’s driver’s license is suspended, find out what they need to reinstate it and have them do it. The sooner the better. It will affect their record anyway and if you ultimately have to resolve it will make a difference.
- If the client was in an accident, get as much information about witnesses as possible. Make sure your client does not contact witnesses
- If you’re lucky enough to have names of witnesses, run them through your conflict checking system and make sure you don’t already or have acted for one of them in the past
- If the client is a Novice driver, have them get their full license ASAP! An upgrade in license may, like the suspension carry some weight later.
- Tell the client to direct any calls regarding this case to either you or the lawyer acting for the insurance company. They should not be speaking to them.
- If a lawyer or paralegal calls them seeking information regarding the case, they need to say they are represented and to give only your name and contact information. Explain that it is inappropriate for a legal services representative to speak directly to a party when they are represented and to remind whoever is calling about that.
- In the case of Stunt driving, tell them that currently, you can’t help them with the 1 week suspension, impound, storage fees or tow bill.
- Tell them you will order disclosure and give them a copy once you have it. Tell them they should review it and let you know if substantive inaccuracies. If it was 7 degrees outside but the disclosure says it was 8 degrees, not much will turn on that but it’s better to get more useless information than not enough.
- Tell them you will try to make it go away but depending on the case, you may have to resolve.
- In cases of 15 over speeds, 29 over speeds, and 49 over speeds, explain not only the R (if it is there) but explain R. v. Winlo and what it means. It is important they know they could very well be pleading as charged to avoid a bump up. This may impact if they decide to retain you or not and is a source of much client dissatisfaction. They should know that while you will do everything to make it go away, there is a real risk they may have to plead to it to avoid the amended speed. Don’t be afraid of Winlo but be aware of it.
- In the case of cell phones, currently, it’s only a trial. There is nothing to plead down to which will benefit the client. The law is changing but for now, there are really no deals.
- If you’ve never done a trial before, and the case will be a trial, tell the client. They need to know. Don’t tell them you’ve never lost a trial. While it is true that never doing a trial means you’ve never lost one, it is misleading to say the least.
- Let them know you’ll do your best!
We as paralegals and lawyers genuinely try to do the best we can for you. Sometimes it means we win, sometimes it means we get a reduction and then of course, sometimes we lose. While the end result will be important for you, it’s the effort we put into the case that gets the result.
Take an active role in your defence by providing detailed information. Answer questions. Get a follow up consult after the disclosure has been provided. Know going in what to expect. Sometimes the gears change quickly and one small kink in the facts can mean the difference between a win or a loss.
Read my post about Demerit Points and the Not Relationship or our page on Demerit points in general. It’s is important to remember that demerit points don’t affect insurance premiums. Risk points do. It’s more important to know how this will affect your record and the insurance premiums then how many points will be accumulated.
Nope. Sorry. Don’t do them. We are paid for our time and effort. We don’t have crystal balls and we’re not gambling our fees on the result. It’s important to understand that even before Law Society regulation, the guarantees were misleading to say the least. I charge you $400 plus tax and I don’t get the reduction I said I would, I’ll pay your $110 fine. What’s to stop someone from taking the $400, paying the $110 and making $290 just to make a payment. You could do that yourself.
You’re hiring a legal services professional for their skill, experience and expertise to get you the best result you can get. We don’t sell snake oil, we provide legal services. So if someone offers you a guarantee, ask them if that means you get off completely and if not they give you a full refund. You may quickly discover, they’re selling snake oil and not legal services.
I’ll be doing a post on guarantees soon. Look out for it.
In the meantime, be diligent.Traffic Ticket Paralegal email@example.com