There I was, going into 12 years as an assistant criminal district attorney. I had tried just about everything the Legislature, in its infinite wisdom, had determined was illegal under the Texas Penal Code. I had a wealth of criminal trial war stories, argued just about every rule of evidence, and did my honest best to represent the State with integrity. Upon information and belief, I am confident that I built a strong reputation for fairness, and my opponents in the justice center could be sure that I would be prepared. I strongly believe that my work as a prosecutor made the world just a little bit better of a place, which was, as it turns out, my aspiration from the beginning.
But something was amiss. I began to feel pigeonholed. I knew how to try a criminal case, but openly wondered whether I could do anything else. I was dissatisfied in my legal practice. I met and spoke with attorneys at the big firms and pondered my place in our increasingly expansive, yet even more increasingly specialized, justice system. Could I do what they do? Will anyone out there hire me to help them with a legal problem?
An opportunity arose at a firm with name recognition, as old and established as the old courthouse in downtown Fort Worth (older, actually). It was an offer I couldn’t refuse. But it was in civil litigation. At an earlier lunch with some of the firm’s most distinguished senior partners (as if I was paving the road for the “I told you so” after their grand experiment to laterally bring in a prosecutor with no civil experience failed miserably), I declared candidly “You understand that I have no civil experience, right?” “Yes, we know” was the response, followed closely by “That stuff you can learn. But you’ve been in the courtroom. A lot.”
“True,” I thought. “Yeah, I got this,” I reassured myself. I accepted the position. I didn’t look back. I was determined to succeed in a transition that attorneys used to make routinely, but in recent times almost never undertake. How much of what I did before would translate over? How much was I going to have to learn? At the time, I had far more questions than answers.
Two Worlds Collide
In many respects, to only briefly describe the manners in which the two contexts of litigation in the justice system are unalike is difficult, as the reality is that they are so dissimilar as to essentially be entirely different practices of law. That is not to say that certain elements of legal practice do not translate from one discipline to the other; they most certainly do. The suggestion is simply that the attorney that engages in both civil and criminal litigation must be attentive to variant concerns at each point of the spectrum of a particular matter’s adjudication from beginning to end.
Does Anything Translate?
As an attorney that was exclusively engaged in only criminal practice for over a decade, the transition to an almost exclusively civil practice came with a great degree of apprehension. However, it was readily apparent to me that elements of criminal practice that had long become routine for me were of considerable value to my new colleagues in “big firm law.” For example, on my first day at the firm I was compelled to reference a rule book to embarrassingly remind myself what an interrogatory was. However, during a later discussion with some attorneys about the facts of a civil lawsuit that had as its underlying basis an assault allegation, I found myself elucidating that pre-existing unrelated allegations of assaultive conduct by our client was not something that opposing counsel should be permitted to cross-examine on during trial because of the prohibition of impeaching a witness based on specific instances of conduct. And therein lies a salient demonstration of both the advantages and disadvantages for an experienced criminal practitioner to the civil justice system, and the difference among the two disciplines.
Attorneys in criminal practice are generally more comfortable in the courtroom than in the office, understand the science of examining a witness, and can swiftly reference rules of evidence to either argue for the admissibility of some evidence or some line of questioning or, in the alternative, argue in the same breath to the contrary. Skills developed in litigation are just as applicable to civil practice. The cases and clients may be different, but comfort before the court and jury, gained from experience in a room with a gallery, twelve chairs, and a man or woman in a black robe, can provide reassurance for the attorney venturing in the uncharted (to them) waters of civil litigation. In fact, an attorney having practiced criminal law for any considerable period of time will almost certainly have significantly more trial experience than otherwise.
Indeed, there are some elements of litigation that are, as the cliche goes, like learning to ride a bike. Among these are addressing the court, speaking comfortably during proceedings with the appreciation of the necessity of developing a clean record, understanding what information is needed from a particular witness, and, perhaps the criminal practitioner’s greatest developed skill, the ability to think quickly, respond quickly, and argue persuasively. In many respects, practicing criminal law was, to me, the quintessence of lawyering.
Not long after I began practice at the firm, as a favor I drove another attorney to the airport. On the way, he inquired into my previous criminal practice, including trial. I took some enjoyment in his bewilderment that it was almost never pre-determined by the court prior to trial what evidence would be admitted before the jury. It was almost incomprehensible to him that the common course for me in trial, when I intended to offer some piece of evidence, was to simply lay the predicate foundation for admissibility and state “Your honor, I offer [so and so] into evidence.” The natural follow-up question by the inquisitive attorney was what I would do if opposing counsel’s objection was sustained and the evidence not introduced. My response, which would generally be that I would think to myself “Well, that didn’t work. What other way can I get this in,” was equally incomprehensible.
Unfortunately, early in my civil practice this phenomenon led to a false sense of bravado about my abilities. To be honest, I fell into the trap of believing that my experience made me better than I actually was. Some lessons have to be learned the hard way.
Perhaps the greatest danger for the experienced criminal practitioner extending his or her wings into civil practice is, like Icarus flying too close the sun, becoming too confident in one’s ability and believing that what translates from criminal to civil litigation would be enough to compensate for deficiency in knowledge of the civil practitioner’s magnum opus, i.e. the rules of civil procedure. The reason that the attorney I drove the airport was in such disbelief that my fighter pilot-type approach to the practice of law could actually be commonplace and routine is that he, like most civil practitioners, had only worked within the confines of the rules and Level 3 Discovery Control Plans. Cue the point when the criminal litigator’s eyes glaze over!
Remember when I remarked that I didn’t know what an interrogatory was? Yeah, that actually happened! To the civil attorney, just as ridiculous as it sounds to go to trial without every piece of evidence from each party pre-marked and pre-admitted is the idea that at the inception of the case the entirety of the State’s investigation file would be produced and “discovered” without so much as a single written discovery request.
Discovery in civil practice is the great equalizer. While the prosecutor knows and understands that, in essence, they are entitled to nothing from the defense, and the criminal defense attorney knows and understands that, in essence, they are entitled to everything from the State, the civil practitioner is entitled only to what is requested, relevant or reasonably likely to lead to the discovery of relevant evidence, in the possession, custody or control of the party from whom the evidence is requested, and not subject to objection or privilege. Cue the point when the criminal litigator completely tunes out!
“Is It That Hard to Follow the Rules?”
Without reservation, the most patent variance between criminal and civil practice are the rules of procedure. Whereas the criminal practitioner is guided by the facts and generally unconcerned with rules technicalities, the civil attorney is consumed by their intricacies. In a criminal case, an attorney might ask what a witness saw or said. In a civil case, an attorney will ask what the rule is or says. Civil practitioners spend countless billable hours with requests for admission, interrogatories, production and disclosure, and just as much time drafting objections thereto while repeatedly entreating their client to forward to them what they have that is responsive to an opposing litigant’s requests. Many times it becomes necessary to up the ante, i.e. draft and file motions to compel another litigant to adequately respond to discovery requests. Discovery is most certainly an art, and it is as peculiar to the criminal practitioner as the idea of visiting the jailhouse client is to the civil lawyer.
What Do You Mean I Waived It?
Foreign to the criminal attorney, at least from the perspective of the prosecutor, is the concept of waiver. Yes, the criminal defense attorney must be concerned with protecting the record and preserving error, but less of a concern to criminal counsel is the possibility that a singular inattentive moment in a proceeding, or an acute failure to assert a particular objection to some discovery request or deposition question, could result in a costly, perhaps career-ending, legal malpractice lawsuit. As a civil practitioner, I quickly found myself seeking the counsel of counsel about drafted responses to discovery or the content of some dicta in a motion or brief. It is easy to become consumed with the fear of waiver. Discovery responses are oftentimes replete with objections, all because the civil attorney is in constant cognizance that a sentence here or an assertion there could constitute a case-changing waiver that cannot be rescinded. To the civil attorney, once the coop door is opened, the wolves are sure to follow.
You’re Telling Me You Get a Free Shot at a Witness Before Trial?
Part of discovery is the deposition, another nebulous concept to the criminal attorney. I recall sitting as an observant in a deposition in a health care liability claim not long after I started my civil practice. I was awestruck by the apparent lack of fidelity to the rules of evidence, with a complete ignorance that the rules of evidence were mostly inapplicable. Hearsay and 404b material flew about the sterile conference room like flies around the dead horse seemingly completely inconsequential issues I perceived the attorneys to be beating. Phrases like “objection, form” and “reserve for time of trial” made sense to the other lawyers, but to me were like some ancient language. I knew very quickly that I had entered another world. A world where the stakes were different and higher.
While I was accustomed to blind cross-examinations and merely anticipating the content of a witness’ testimony based on reasonable deduction, the deposition is a tool to discover the relevant facts the witness has knowledge of, and to box the witness into the scope of their testimony in the event that a case is later tried. The importance of the deposition is no more apparent than with the expert witness. As the criminal attorney may have occasion to request and litigate a “705” hearing prior to an expert witness testifying before the jury, it is standard fare for the civil case to have competing experts that necessitate competing discovery requests and responses, competing reference materials and literature, and competing opinions that are flushed out ad nauseam in deposition. Quite frankly, in criminal trials, experts didn’t scare me. In civil litigation, the thought of failing to prepare adequately to take an expert’s deposition is the stuff of nightmares.
Failing to Prepare is Preparing to Fail!
To put it as briefly as possible, for the attorney, civil and criminal litigation are like different branches on the same tree, underneath which the concept of justice constitutes the roots. While civil lawyers have to mold their case through discovery and build either their prosecution or defense accordingly so as best to leverage their client, criminal attorneys must mold their theory from some event or incident that has previously occurred and from which the facts are already laid out.
The civil attorney must employ the tools of discovery strategically to emphasize strengths and mitigate weaknesses. Hours and days are spent meandering through the twists and turns of the 190’s of rules books, and a draft of an examination of a witness in a civil case is typed, justified, pages long and agonized over in minute detail. In criminal cases, motions are often made orally, heard instantly and resolved before counsel even sits down. Inversely, a civil district judge will happily refuse to entertain a request from counsel that is not properly before the court, i.e. made by written motion with supportive briefing, served upon and responded to by opposing counsel in time frames promulgated by the rules. Even then, the parties may wait days, if not weeks, for the court’s judgment.
In the End, It’s About the Client.
The purpose of this missive is not to discourage learned counsel from expanding the scope of their practice or to buoy normal and healthy apprehension about new areas of law. Sometimes the prospect of endeavoring into uncharted waters is daunting, but there is no shortage of sources for counsel, advice, or, if necessary, referral. I’ve never been hesitant to ask a more experienced attorney for guidance, and I’m always more than happy to lend my own experience to others when it’s helpful. Just as on that first day at the firm, when an attorney asked me to help with interrogatories, and I assured him that I would be happy to do so once I looked up what was an interrogatory, others with little to no experience in criminal law came to me with similarly elementary questions. To some degree, the answer to the question is almost always a question: “What does the rule say?”
At my law school orientation, the president of the student bar association issued what I consider to be the most obvious, and best, advice for a new lawyer: Understand the client’s problem, look up the rule, code, regulation, or statute that is applicable; maybe find a case or two, and come up with an argument. I remember he said “It’s not rocket science.” Sitting there that day, wondering what I was getting myself into, what the future held for me, and who out there would someday rely on my ability, I thought to myself that there’s probably some rocket scientist somewhere thinking “at least it’s not law.”
Joshua Ross, an associate in the Fort Worth office of Cantey Hanger, spent over a decade as lead counsel in high-profile litigation as a state attorney, which included organized crime, fraud, employee embezzlement and identity theft, as well as capital murder, narcotics trafficking and other serious criminal offenses.