Why your lawyer is unlikely to give a guarantee.

There is a particular kind of inquiry that arrives in our office every few weeks. The caller has been to another lawyer, who told them the matter will be beaten, or that there is no real prospect of custody, or that the charge will be withdrawn at the first listing. The caller wants the same assurance from us. We will not give it. Not because the other lawyer is wrong, but because nobody at any honest law firm could give that assurance, on those facts, at that stage. This note explains why honest forecasting in criminal defence does not look like a guarantee, and the red flags to watch for in a lawyer who says it does.

The reason the guarantee is impossible.

A criminal matter has at least three independent decision-makers and a fourth that constrains them. The prosecution decides what to charge and what to negotiate; the magistrate or judge decides the verdict and the sentence; the witnesses, including the accused if they give evidence, decide what to say and how to say it; and the law constrains the range of outcomes any of them can produce. None of those decisions is in the lawyer's hand. The lawyer's hand is on the preparation: the brief is read, the elements are tested, the defences are considered, the subjective case is built, the negotiations are run, the court is addressed. Preparation maximises the probability of the best available outcome. It does not produce the outcome.

This is the same reason a surgeon does not guarantee a recovery, an architect does not guarantee a building's resale price, and a financial adviser does not guarantee a return. The variables are not in their hands. The professional offers diligence and craft; the result is downstream.

What honest forecasting sounds like.

An honest criminal lawyer's account of your matter, at the first conference, sounds something like this. "On these facts and on the brief as I have read it, there appear to be three issues. The first is X, where the prosecution will need to prove Y; on what I see at the moment that is winnable. The second is Z, which is harder; the brief gives the prosecution a strong starting point and the defence here is going to rest on the evidence we put on at the subjective case. The third is the prior, which we cannot make go away but can contextualise. The realistic range of outcomes is between A and B. If we run the matter well, the matter will land somewhere in the middle of that range. If we run it badly, we lose the lower half."

That is what a forecast in criminal defence looks like. It is a description of the range, with the dependencies named, and a statement about what good preparation moves within that range. The forecast is updated as the matter develops. The committal brief lands; the brief expands; defences open up or close down; witnesses prepare; the prosecution position softens or hardens; the subjective case develops. Each of these moves the forecast. By the time the matter is ready to be heard, the forecast is much narrower than it was at the first conference, but it is still a forecast.

What a guarantee actually means in this market.

When a lawyer guarantees an outcome, one of two things is going on. The first is that the lawyer is using guarantee language as marketing, and means something softer than guarantee in the legal sense. "I'll get you off" said with confidence at a sales meeting is often shorthand for "this is a winnable matter and I am the kind of lawyer who runs matters hard." That is forgivable as sales language. It is not forgivable when the client then plans their life around the guarantee, takes a risk on bail because of it, or makes financial commitments on the assumption it holds.

The second is that the lawyer is being negligent in their forecasting. A real guarantee on a criminal matter requires a level of certainty about the prosecution case, the witnesses, the bench, the law, and the matter's interaction with all of them, that a responsible lawyer simply does not have at the first conference. The lawyer who offers the guarantee anyway is either misjudging the certainty (a bad lawyer) or is offering certainty they know they do not have (a worse lawyer). Both kinds of lawyer exist and both can lose your matter at the same rate as any other firm, with the additional cost that you planned around an outcome they had no business promising.

The signs.

The signs of guarantee selling are usually visible at the first meeting. The lawyer's website carries testimonials that name outcomes ("100% success rate", "never lost a case"). The lawyer offers a first conference at a flat rate that is small relative to the eventual matter ($99 first consult; the next stage is much more). The lawyer's quoted price for the matter is materially higher than the orthodox range for that kind of matter and is sometimes flat for "the whole defence". The lawyer is willing to commit to an outcome at the first conference without having read the brief. The lawyer focuses on how aggressive they are in court and on what they will do to the prosecution witnesses, rather than on what is in the brief and what kind of preparation the matter needs.

None of these signs are conclusive on their own. A good lawyer can be aggressive. A good lawyer can be confident on a matter where they are confident. A good lawyer can name outcomes they have achieved. The pattern is what matters. Where most of these signs are present together, the firm has moved away from running matters and toward selling certainty, and the cost of that to the client is borne after the conference, not at it.

What we tell our clients.

Our practice is to give clients the range of realistic outcomes at the first conference, with the dependencies named. Where the matter is winnable, we say so, and we explain what would have to go right at the hearing for the matter to resolve in the client's favour. Where the matter is not winnable on its objective facts but a good sentencing outcome is achievable, we say that too. Where the matter is serious and the realistic outcome involves custody, we say so as early as we can, so the client can plan around it (financial arrangements, family arrangements, employment notification, dependents). The unwelcome forecast given early is more valuable than the welcome forecast given late.

The forecast is updated at each milestone. After the brief lands. After the first conference with senior counsel where the matter justifies one. After the subjective case is built. After the negotiations with the prosecution. By the time the matter is on for hearing or sentence, the client knows the range and has been part of the conversation about where the matter is likely to land.

The professional rule, briefly.

Solicitors in NSW practise under the Australian Solicitors' Conduct Rules, adopted in NSW under the Legal Profession Uniform Law Application Act 2014. The Rules require solicitors to be honest and courteous in all their dealings, to act in the client's best interests, and to avoid misleading the client or any other person. A guarantee of outcome that the lawyer knows or ought to know they cannot deliver is a breach of those obligations. A complaint to the NSW Legal Services Commissioner is the route available where the misrepresentation is serious enough to warrant one. We are not in the complaints business. We mention it because the rule itself reflects the position the profession takes about guarantees: they are not what a lawyer is paid for, and they are not what an honest lawyer offers.

One last note.

The criminal defence work that produces good outcomes is unglamorous. It is reading the brief properly, testing the elements, identifying the defences that are actually available, preparing the subjective case, running the negotiations carefully, and showing up at the bar table ready. None of that is guaranteed to win. All of it maximises the probability of winning. If a lawyer offers you a guarantee at the first conference, ask them what they will be doing in the months between the conference and the matter to earn it. The answer will tell you what kind of firm you are speaking to.

This note is general information about criminal defence practice and is not legal advice for any particular matter. For advice on your matter, contact us through our contact page or phone 0421 717 019.

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