What I'll Say To The Civil Lawyers

I'm watching the sunrise outside my hotel room window here in Jackson, Mississippi as I prepare to speak at a CLE conference sponsored by Ole Miss. They asked me to speak on the topic of civil lawyers practicing criminal law. Why not? I've never been to Mississippi, they were willing to pay the freight, and it's always good to meet other lawyers.

I prepared my talk without any guidance. I was simply told that the crowd would have a "good number" of civil lawyers. I knew I had to remember to be sensitive. Outside of big cities, there are few lawyers who only practice criminal law. My traditional hotel room review of lawyer ads in the yellow pages finds my theory correct here in Jackson.

My tone would be that criminal law is not as "easy" as cash flow hungry civil lawyers would think, and to remember Rule 1.1 of the Model Rules of Professional Conduct - Competence. I would go on to talk about all the things criminal lawyers have to think about - IRS 8300 forms, Padilla, money laundering, conflicts, etc...

Then last night at the speakers dinner, I was given more specifics - there are a bunch of registrations from BigLaw associates. I learned more - that BigLaw, at least here in Mississippi, is increasingly keeping things in house - including criminal cases. Now they just need to have someone competent to handle criminal defense.

My audience today will not be merely part-time criminal lawyers who also do divorce, PI, Bankruptcy and "18 Wheeler accident law" (lots of that here) who are looking to fine-tune their skills, it will also be lawyers who have never set foot in criminal court, and are now going to be their law firm's criminal practitioner.

They won't like my presentation. I won't be telling them it's OK to get a fee and immediately beg the prosecutor for a plea offer so they can close the case and get back to document review. I won't tell them they don't need to investigate their cases, talk to witnesses, research holes in the case, file motions to obtain additional discovery, or go to the scene of the crime.

There is no formula to practicing criminal law. There is no script. I won't be telling them to go from A to B to C to D. Cases ebb and flow, and while one day you're looking at a hopeless case, the next day you're picking a jury, in that same hopeless case.

I will tell these civil lawyers that unlike what they do on a daily basis - the useless motions to compel, the .2 review of court notices, the conferences (lunch) with the partner to discuss "strategy," representing a client in criminal court matters. I will tell them that people go to jail when they lose criminal cases, they don't just write checks.

When it's over, the criminal lawyers will say "thanks." The part-time criminal lawyers will take a new look at their criminal cases, and the civil lawyers will either decide they don't want to jump in the water, or tell me I don't know what I'm talking about.

Regardless, I've got a 4 p.m. flight home.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter