Civil Litigators Cannot Usually Relate To Criminal Lawyers

I was recently watching the news coverage of a monumental criminal case that wrapped up last week, which I am sure many of you read about. Numerous news networks had dozens of talking heads discussing all of the minutiae of the case, and many of the commentators were either practicing lawyers or former attorneys. Some of the commentators did not seem to have much experience with criminal law and were more likely litigators or other types of lawyers when they practiced. In my own life, lawyers who have more experience with civil litigators or other matters rather than criminal law also attempted to show insight about this recent criminal trial due to their general experience with the law. However, civil litigators and other types of lawyers generally cannot relate to criminal lawyers, and their expertise is not particularly useful when commentating on criminal law matters.

For instance, I saw one commentator discussing the jury deliberation process and how that particular lawyer had been involved with civil jury trials in the past and endured the torment of waiting for a verdict. Even though civil litigators also need to wait for a jury to render a decision on matters, the experience is not the same as the experience of a criminal lawyer. A while back, I had lunch with an attorney who had substantial experience with criminal work as well as some experience with civil litigation. The attorney told me that waiting for a jury to render a verdict in a criminal trial is not at all the same as in a civil trial.

This colleague related that there is not as much pressure when a jury deliberates during a civil case. However, because of the monumental impact a jury verdict can have in a criminal case, the lawyer told me he had a hard time sleeping or even eating when a jury deliberated during one. Sure, some civil cases are extremely consequential, but nothing really compares to the weight of a criminal conviction.

Moreover, the procedures involved in criminal cases and civil cases are not too similar. Sure, the law of evidence is mostly the same between the two types. However, the situations in which the law of evidence is applied is different in criminal cases, and civil litigators likely only have their bar exam preparation as experience for how the law of evidence works in many criminal cases. Moreover, the rules of criminal procedure in most jurisdictions depart substantially from the rules of civil procedure. I am not confident I would even know how to file documents for criminal cases in the jurisdictions in which I practice! As a result, any purported knowledge about motions to dismiss or other matters in civil cases have little connection to the criminal context.

Another huge difference between criminal and civil cases is interactions with clients. Civil litigators can have some needy — and yes, somewhat unhinged — clients because lawsuits are stressful, and some clients may not deal with this stress well. However, criminal lawyers need to deal with clients who are facing a type of jeopardy that is just not possible in the civil justice system. Moreover, simply interacting with criminal law clients can be difficult in some circumstances. I have represented some clients in jail before, either during pro bono matters or for civil matters involving incarcerated people, and the experience is humbling. It is often extremely difficult to communicate with people in jail in person, and even virtual communications can be difficult. This can make it very challenging to coordinate a defense and discuss important matters about a criminal case, which civil litigators may not experience in their practice.

All told, sometimes, certain lawyers exhibit a tendency to feign experience about a given matter based on their practice, but civil litigators usually cannot relate to many aspects of the criminal justice system. Criminal lawyers usually have a different experience from civil litigators that is difficult to compare for attorneys who practice other types of the law.

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.