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.