Criminal vs. Civil Litigators and Trial Experience Forum

[Anonymous User]

The prevailing consensus seems to be that prosecutors and criminal defense attorneys get more trial experience than civil litigators, but why is this the case? Don't the vast majority of criminal cases plead out? Do civil cases settle pre-trial at a greater rate than criminal cases plead out pre-trial? If not, then why do criminal litigators get more on-your-feet-in-the-courtroom experience compared to civil litigators? Thanks in advance!

[Anonymous User]

There's a host of reasons and I certainly don't know all of them but off the top of my head:

1. Volume. A DA's office has like 60-100 cases per lawyer. Even if 90% of them plead out that's still 10 trials.
2. Court appointed lawyers. In a criminal case defendants can get an appointed lawyer and so they don't have same financial considerations that a civil defendant might have.
3. Procedural rules. There are rules like the speedy trial act that apply to criminal cases. Judges also grant hearings more in criminal cases because someone's freedom is on the line. With civil cases, they'll rule on the papers more often.
4. Money is a lot easier to split the difference than prison time.

[Anonymous User]

There's a host of reasons and I certainly don't know all of them but off the top of my head:

1. Volume. A DA's office has like 60-100 cases per lawyer. Even if 90% of them plead out that's still 10 trials.
2. Court appointed lawyers. In a criminal case defendants can get an appointed lawyer and so they don't have same financial considerations that a civil defendant might have.
3. Procedural rules. There are rules like the speedy trial act that apply to criminal cases. Judges also grant hearings more in criminal cases because someone's freedom is on the line. With civil cases, they'll rule on the papers more often.
4. Money is a lot easier to split the difference than prison time.

Agree with all of this.

re #1: I switched from criminal to civil and my caseload, in terms of total number of cases, is probably 1/4 what it was when I was in criminal.

re #2: yeah, the vast majority of criminal defendants don't have to pay their lawyers. It's true that in civil you have the whole arena of contingency cases, but financially, the lawyers taking those cases tend to operate on volume and are incentivized to get a settlement with the least financial investment possible (because any costs incurred will come out of their cut), which means avoiding the expense of trial.

But even when you're not working on contingency, where you'd think the incentive is for lawyers to run up the bills, trials are really risky for both sides. Most of the time, both parties would much rather have the sure thing of reaching an agreement rather than risk losing at trial and paying out more, or winning but getting lower damages. B/c you can't predict what juries can do (or, if the case is so clear cut that you can, there's no point in going to trial and you need to settle).

This is much less clear cut in criminal. Yes, there's usually some kind of trial penalty where if the defendant goes to trial and loses, they're looking at a longer sentence than if they pleaded guilty, but it doesn't always play out that way. Frankly, though, because you're dealing with someone's liberty rather than their money, and (to be blunt) a lot of criminal defendants aren't exercising particularly good judgment or making good life choices, I think criminal defendants are much more likely to feel like they've got nothing to lose and they might as well roll the dice on trial, or are honestly just not rational about it. Obviously the vast majority of criminal cases plead out, so this isn't a huge proportion of cases over all, but I think it's a higher proportion than in civil. Also obviously not all civil parties are rational or anything, but a criminal defendant who has no valid defense whatsoever still gets to have a trial. A similarly irrational civil party is probably going to lose before the case goes to trial, see below.

re #3: agreed that the rules referenced above encourage going to *court* more in criminal than in civil, but not necessarily going to *trial.* The biggest procedural difference wrt trial is you don't have summary judgment in a criminal case (basically because a criminal defendant has all these constitutional rights involving confronting their accuser etc.). No MSJ eliminates a huge opportunity both to win the case before trial, and to show your opponent what they'll be in for at trial to encourage settlement.

So yes, civil cases definitely settle - or get decided on summary judgment - at a higher rate than criminal cases plead out.