While McLachlin is very convincing on the challenges of family life for a lawyer, the obsession of her lawyer, Jilly Truitt, over the murder case she is conducting on a pro bono basis is not realistic. For a firm with two partners, herself and Jeff, I cannot see how she can devote all her time to the case and incur major expenses for the defence. I have been practising law for decades with 1-2 partners besides myself and there is no way she could limit herself to this case. There is reference to other income producing cases but no time spent upon them by her. Having but one case is good fiction but weak reality. In Denial, the second book featuring Truitt, McLachlin had Truitt dealing with the challenges of managing a major case and other files. There is abundant drama in that process. Law office economics demand she continue to bring income into the firm.
Later in the book she spends an inconsequential amount of time assisting other lawyers in the firm with their files. The firm continues to hemorrhage money for months.
As she works on Kate’s defence Truitt decides to personally question a major Crown witness, Selma Beams, the nanny for Tess.
For a lawyer to question Crown witnesses before trial is a delicate area. They have already provided statements to the police which are provided to the defence. They have no duty to respond to questioning by the defence.
Truitt made me twitch when she did not identify herself as Kate’s lawyer at the start of a conversation with Selma. She passes herself off as a single mother looking for a nanny. Only when Selma asks Truitt who she is does Truitt identify herself for “lawyers aren’t allowed to misrepresent who they are”. Her recognition of her ethical responsibility is late, very late, in the conversation.
Beyond her questionable ethical approach Truitt risked her ability to defend Kate by questioning Selma. She is seeking new evidence or at least evidence that contradicts Selma’s existing evidence. If a lawyer elicits new or contradictory evidence, especially if it is in the form of a conversation with neither recording nor signed statement, from a witness that the witness subsequently denies or recants or claims she was misled, the lawyer risks becoming a witness. If a lawyer becomes a witness they must withdraw as counsel and another firm must take over the case.
There is a further issue involving Selma. It irritates me when McLachlin controverts legal procedure. She had Selma swear an affidavit in family law custody proceedings, that took place before the book, in which she states that she is entitled, because of her time with the parents, to give opinion evidence on their parenting abilities. She is not an expert. Only experts can give opinions. More subtly, Selma could have advised what she observed that gave her concern over Kate’s parenting of Tess and what actions she took because of those concerns. Selma’s opinion in the book would be disregarded by a real life judge and subject her admissible evidence on parenting to be regarded skeptically. Her conclusions on the best interests of Tess would be struck and sanctioned.
There is an adoption proceeding involved in the book which is purported to be legally done through a hospital. Only in fiction can a lawful adoption proceed without the consent of both parents or a court order dispensing with consent. The issue of an unlawful adoption would have been fascinating in the aftermath of the case concerning the rights of the biological and adoptive parents. A twist in the plot eliminated the question.
As with the earlier two books there is a legal aspect to the conclusion that is a purely creative legal proceeding that would never happen in a Canadian court.
Once a charge is withdrawn the judge is functus. The judge cannot hear an admission of guilt to charges pending in a different court for any reason. Court is over with the withdrawal.
Authorial licence has been repeatedly invoked yet again by the former Chief Justice of Canada in her legal fiction. I despair.
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