As a former prosecutor who became a federal trial judge with a civil-heavy docket, I saw stark differences between civil and criminal trials. Criminal trials are more frequent, more efficient, and less contentious than civil trials. And jurors are often unimpressed by costly, time-consuming tactics common in civil but not in criminal trials. People have asked me what civil litigators can learn from their typically lower-paid but trial-hardened colleagues in the criminal bar. I figured I should share what I discovered before I forget what a trial looks like, given that I am now an appellate judge. There are, of course, also lessons to be learned in the opposite direction, like thoroughness and preparation, but those are for another day.
Civil trial lawyers should jettison the usual playbook in which trials are largely the performance of a fully rehearsed play. They should trust their own abilities—to cross-examine and persuade, among other things—and they should trust juries. At the same time, they should step back from wanting to be the center of attention and instead let the witnesses and documents tell the story.
Tougher conversations with clients may be necessary. Criminal lawyers, especially prosecutors, enjoy great independence in shaping trial strategy. No in-house counsel tells them what to do. Civil lawyers, by contrast, often serve clients who are actively involved and press them to use every available tool, all in an effort to minimize risk. That belt-and-suspenders approach contributes to expense and delay in trial preparation and ineffectiveness at trial.
Real effectiveness embraces bolder trial tactics:
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