Charm School for Civil Litigators

by Jamison Koehler on June 29, 2011

Civil litigators give the rest of us lawyers a bad name.

My wife is a civil litigator, and the day-to-day unpleasantness quotient is a whole lot higher in her life than mine. Fortunately she is immune to it, with a Bill Clinton-like ability to compartmentalize her life. It has also been interesting to watch some of the back-and-forth in the Rakofsky case, with some personal stuff you would never see in a criminal case.

According to Hamilton Burger, a former prosecutor who is now a civil litigator, the major difference is that there is not the same incentive in criminal law to churn the hours. Prosecutors are on a fixed-salary, and most defense lawyers are on a flat fee. Neither side has an interest in generating extra work through the litigation of petty disputes.

My sister-in-law, who does medical malpractice cases, doesn’t necessarily agree with my basic premise. To the extent there is a difference, she says, may be because civil litigation seems much more personal. In criminal cases, it is the government bringing the charges on behalf of a third party. In a civil suit, it is often an individual person who is pressing the matter, a person with free will and the potential for spite. Any resulting animosity is then reflected up through the lawyers.

Civil cases also tend to go on much longer, my sister-in-law adds, and there is much more unsupervised interaction between the lawyers. Unlike a criminal case in which the prosecutor and defense attorney spend a lot of time investigating their cases independently, much of the real work in a civil case is done through depositions. Lawyers on both sides of the case can spend days pent up in a hotel room bickering over the fine points of evidence. By contrast, the judge is almost always present when the prosecutor and defense attorney in a criminal case butt heads over the very same issues. We are always on our best behavior when a parental figure is in the room.

Burger and my sister-in-law offer some interesting perspectives. As for me, I am sticking with my claim that criminal defense lawyers are simply a classier and more civilized group of people.

3 Comments on “Charm School for Civil Litigators

  1. Jamison,

    This is a topic I have written about a lot, and if you’ll excuse the self-promotion, the posts are here:

    I have been both civil and criminal and you are one hundred percent right about the civility issue. It was one thing, one of many, I detested about civil work. And I think there are dozens of reasons why criminal is far more pleasant an environment. You have identified a few correctly, I believe.

    Other factors include: clients with unreasonable expectations pulling the strings (only happens to criminal defense lawyers!); remote communication (phone and email) which fosters hostility; boring and unimportant issues, which requires some lawyers to become blow-hards to make themselves feel important; a host of complicated procedural rules that criminal lawyers don’t have to deal with.

    Good post and, dear sir, we are in accord on this matter!

  2. Then there are those who say it’s because the stakes are so low in civil cases — it’s just about money, after all — while the high stakes of criminal cases lead to a more collegial and professional confrontation.

    I’d say all of those theories have an element of truth. But I’d also have to say that most of the civil litigators I’ve had to deal with were classy and civilized as well. The ones who were less than professional tended to be involved in cases where the stakes were typically lowest and the margins narrowest.

  3. Also, criminal litigators generally work with one another repeatedly. Civil litigators, particularly on big cities, may only have a single case against one another. It is generally unhelpful to be an asshole to someone you’ll work with in the future.

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