The Difference between Your Criminal and Civil Attorneys

Let us assume that the defendant has a "criminal attorney" to defend the defendant against the criminal charges, and a "civil litigating attorney" to do all other litigation matters.

There will necessarily be tension and conflict between the two sets of attorneys which the defendant should be aware of. This tension and conflict generally arises out of the differences between criminal and civil litigation.

These differences between Your criminal and civil proceedings and attorneys should be kept in mind. They include:

  1. The criminal attorney wants to win his/her criminal proceeding and may not be favorably disposed to the civil litigation
  2. The criminal attorney may view the civil litigation as an unwanted intrusion into and threat regarding the criminal representation
  3. The criminal attorney may see the civil litigation siphoning off funds which otherwise might be available for the defense in the criminal litigation
  4. The criminal attorney has to work with the prosecutor's office on other matters and may be reluctant to be aggressive against the prosecutor
  5. The criminal attorney is not permitted to work on a contingent-fee basis
  6. The criminal attorney may take a substantial fee in advance and then, if his/her client pleads guilty, is able to keep the fee and turn his/her attention to other cases with new fees
  7. The criminal attorney is generally not used to extensive motion practice or litigation in his/her criminal representation and cannot be expected to change this approach toward representation
  8. The criminal attorney may be reluctant to do any kind of offsetting litigation to counter a prosecutor's illegal tactics because it would be extra work for which the criminal attorney would not be getting paid, in his/her view of his criminal representation
  9. The civil attorney is not an expert in the criminal law or the relevant facts in the criminal case and cannot and should not be giving advice to the defendant as to the criminal case
  10. The civil attorney should make it clear when he talks about the criminal case that he is not giving advice and that the defendant must obtain his criminal law advice from his criminal attorney
  11. The defendant must realize that it is his/her responsibility to make the final decisions, after listening to the advice he/she receives, and that the defendant will be the one to suffer or benefit, rather than the criminal lawyer
  12. The lawyers should make it clear to the client when there is any personal involvement, such as the civil attorney working on an hourly basis or a contingent-fee basis, whereas the criminal attorney may be working on a one-shot fee (in advance) basis, with differing interests and motivations for each type of fee arrangement
  13. The civil litigation could obtain evidence useful in the criminal proceeding which might otherwise never be obtained, because the prosecutor will not look for exculpatory evidence, and the defendant in the criminal proceeding has no discovery opportunities whereas the prosecutor has virtually unlimited discovery opportunities (a most outrageous situation leading to prosecutorial excesses and abuse)
  14. The strategy of the criminal complainant, as a defendant in the civil litigation, will be to force the criminal defendant (the plaintiff in the civil case) to testify, or risk having his case dismissed as a penalty for not testifying
  15. The civil plaintiff should get other plaintiffs to join with him/her in the action to ensure that discovery can be obtained, and seek protection by court order from having to provide discovery during the months before the criminal trial
  16. Motions for protection can include requests for a stay, request for adjournment of the order of depositions, to put the defendant last on the list; request for a severance; request for a voluntary dismissal without prejudice. The statute of limitations should be considered, especially when the civil plaintiff's case is based on defamation, which ordinarily has a short (e.g., 1-year) statute of limitations
  17. Also, the civil plaintiff could enter into a stipulation (agreement) with the civil defendant which would put the civil case on stay (thereby stopping the sought-after discovery) until after termination of the criminal trial; a variation on such stipulation might be that the civil case would be dismissed if the civil plaintiff lost the criminal proceeding
  18. The civil plaintiff will probably be able to produce documents without compromising the criminal proceedings; the documents have probably been produced already to the prosecutor
  19. The civil case as discussed above is a powerful way to oppose the oppression of illegal tactics by a prosecutor
  20. A later civil case, after the defendant prevails in the criminal proceeding, could be brought against the prosecutor himself, in a civil rights action against the prosecutor to make him/her pay for his illegal activities
  21. There is an interplay between criminal and civil litigation which can help a defendant who is being victimized by prosecutorial misconduct and abuse, but the interplay is tricky and has obvious risks

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Copyright © 1998 by Carl E. Person