“What’s is like over there? I don’t know if civil law is for me.”
I spent five years as a prosecutor in the Racine County District Attorney’s office and made the leap to civil law in January of 2014 with Habush Habush & Rottier. Since then, I’ve heard the above comment expressed with some frequency by lawyers who only practice criminal law and question how well their experience would transfer to a civil practice.
I understand where the questions are coming from. Like many criminal lawyers, I wondered about my ability to learn “a whole new procedure” and body of law. My goal here is to give encouragement to any lawyer whose practice has been predominantly criminal and wants to make the move to a civil practice.
If you are a public defender or a prosecutor with trial experience under your belt and you want to expand your practice, do not sell yourself short. If you took advantage of the opportunities your caseload provided, you undoubtedly have considerably more courtroom experience than every civil lawyer in your law school class. You have argued more motions to the court, brought more motions to suppress or admit evidence, and tried more cases to the court and to a jury.
Any lawyer considering the change should recognize that philosophical assumptions underlying criminal law differ greatly from those found in civil law, and those assumptions tend to make their effects felt in every stage of a case. Wis. Stat. § 801.01(2) states the purpose of civil procedure succinctly: “Chapters 801 to 847 shall be construed to secure the just, speedy, and inexpensive determination of every action and proceeding.”
The statute is, for the most part, intuitive and geared toward disclosure and the narrowing of issues. A lawyer new to civil practice should be aware how this difference in purpose manifests itself in practice.
Before trial, the differences between criminal and civil law are fundamental and any discussion must start with the decision-makers. In criminal cases, for instance, it is the state and not the victim who files and drives the case.
Most civil cases, in contrast, are driven by the client’s goals, but navigated by the attorney’s expertise. Not so in criminal cases.
Here it’s the accused, whose liberty is at stake, who decides when and whether to settle, rather than an experienced adjuster or attorney (as in personal-injury cases). In my experience, this contributes to criminal practice being more adversarial and personal, since the accused must often express agreement with major tactical decisions on the record.
Most of your criminal-trial abilities are directly transferrable to civil court, although there are some differences one should keep in mind. I have likened the difference between criminal trials and civil trials to the difference between comedy sportz and standup comedy.
They both require intensive skill, but one requires more extemporaneous thought and the other the ability to deliver known material. In criminal cases, the accused has the right to remain silent and, as a result, the defense’s general arguments are often not known to the state until the defense delivers its opening statements.
As a criminal lawyer, your extemporaneous trial abilities are likely to have been tested and finely honed. You should have more experience than a typical civil litigator at dealing with surprises that challenge your theme or strategy. Criminal trials, in contrast, much more frequently involve novel revelations born out of the lack of pretrial discovery available to civil attorneys.
On a much more basic level, civil litigators must meet a lower burden and require 5/6 of the jury to support a verdict. Criminal prosecutors must go much further, shouldering the “beyond a reasonable doubt” standard and having to secure unanimous jury verdicts.
If you are new to civil law, revel in the wide scope of pretrial discovery available to you to avoid surprises at trial and use your well-shaped ability to try the case on the fly if absolutely necessary. Many of the experts who testify will have already done so on video and most of the witnesses should have already been deposed. You generally know the evidence both sides will present and trial is a matter of execution.
The seasoned criminal prosecutor may be surprised at the quantity of stipulations in a typical civil trial. Much more so than a civil litigator, a criminal prosecutor is faced with a battle in getting evidence admitted. As a result, it’s essential that criminal litigators have a thorough grasp of the rules of evidence.
A prosecutor must be concerned not only with evidence suppression for illegal searches and seizures, but also, because of the confrontation clause, with the suppression of otherwise admissible hearsay. There is little incentive for either party to stipulate to the authenticity of evidence. The fear of a claim alleging ineffective assistance of counsel is often the impetus for the most zealous advocacy.
A criminal defendant has no statutory incentive to compromise on even trivial matters, because, in criminal court, there are no cost-shifting statutes similar to those found in civil cases. Yet, although the uncompromising opposing counsel is to be expected in criminal law, it is the exception in civil law, given the scope-narrowing statutes available in the rules of civil procedure.
Of course, the transition from criminal to civil practice cannot be made without a willingness to learn. One of the main sources of difficulty for criminal lawyers entering the civil arena is the need to understand, get acclimated to, and effectively use the power of pretrial discovery.
This includes recognizing the statutory incentives to narrow the issues and cooperate on otherwise trivial matters. If you are making the transition, you will find great comfort in the availability of pretrial discovery to narrow the scope of your civil trials.
Realize that civil trials also differ from criminal trials in requiring the mastery of a much greater amount of materials, as well as the reliance on a far greater number of expert witnesses. Take advantage of discovery options such as interrogatories, depositions, requests for production of documents, requests to admit, and offers of judgment/settlement. Also, to get a feel for what is needed in a civil case, take the time to review the depositions of experts.
I hope these observations help give seasoned criminal lawyers confidence that their experience brings something important to civil practice. I encourage you to concentrate on the similarities of the practice, such as your experience directing an investigation, carrying the burden, your trial work, and your comprehensive knowledge — honed by countless battles on the admissibility of evidence — of the evidence code.
When asked about the move at an interview or in polite conversation you can say, with confidence, that you knew you still had much to learn but that your trial experience had prepared you well.