by Andrew Bach ’05
Nearly every great fictional lawyer was a criminal lawyer.
Jack McCoy from “Law and Order” prosecuted criminals. Atticus Finch from To Kill a Mockingbird defended criminals (or defended Tom Robinson whose only crime was overuse of the word ‘chifferobe’).
There are really no inspirational figures (no, I will not count Ally McBeal) for civil litigators. So what – exactly - do civil litigators do and why would anyone want to do it?
A civil litigator appears in court for his client and fights for them just as a criminal lawyer would. The primary difference is that if you win your civil jury trial they don’t haul your opponent off in manacles. With that being said the range and scope of what can be litigated in a civil case is only as limited as the human imagination. Civil lawsuits go from the sublime to the ridiculous, from civil rights cases to condominium board disagreements. This variety is what makes civil litigation so fascinating. For practical purposes there aren’t many civil rights lawyers who litigate condo covenants, but if you are in the field of civil litigation that potential remains regardless of your degree of specialization. Litigation skills also apply broadly to other areas of law. If you are skilled in litigation then you are also well-equipped to advise clients in ways to avoid litigation.
A civil litigator has to be a researcher, a creative thinker, a pragmatist, a writer, counselor and sometimes an actor. In civil litigation lawyers engage in extensive discovery and pre-trial motion practice; they have to depose witnesses and experts while keeping their trial or settlement strategy in mind. A civil litigator is asked to become an expert (at least for the span of one deposition or cross-examination) in everything from construction to cognition, from medicine to management.
Criminal cases tend toward absolutes: a verdict must be unanimous, it will be either guilty or not guilty. Civil cases are full of grey areas. For instance in Missouri, a jury can in the right circumstances place any percentage of fault from 0-100 on either party. If a civil case makes it to trial then it is usually because both sides could be right depending on how their lawyers present the case to the jury.
There are down sides to civil practice including the ever-present specter of billable hours. However, there is no perfect practice area in the profession of law. And at the end of the day, a civil litigator gets stand up for their client and ask a judge or jury to agree that the law is on their side. And that, as it turns out, is not so very different from what Atticus Finch did for Tom Robinson.