How Are Criminal and Civil Courts Different?

Criminal prosecution and civil litigation are both adversarial proceedings. In other words, two parties bring a dispute before a judge and (in most cases), a jury. Typically, the first party believes the second party has wronged them and seeks relief from the court. The court then must determine whether or not the first party’s claim is valid, and if so, what kind of relief is appropriate or allowed under the law.

The primary difference between the two lies in who is allowed to file the complaint. In criminal law, only the State, represented by the prosecutor, can file specific charges against an accused criminal (although a private citizen can initiate a criminal complaint under certain circumstances). This is why criminal cases are referred to as “The State vs. John Q. Suspect.”

In torts, a private citizen can file a lawsuit for almost any reason. The person who initiates the lawsuit is known as the “plaintiff.” Simply because the case is filed does not mean it will be heard; judges typically refuse to hear “frivolous lawsuits.” For a case to have merit, the following must be established:

  • There is a legitimate cause of action (i.e., there is an injury resulting from an accident due to another’s negligence).
  • The plaintiff must have standing before the court.
  • The defendant must have been in a position to avoid the accident or prevent the injury.
  • The parties must be of sound mind and legal age (if the plaintiff is a minor, an adult must file the lawsuit on their behalf).

If these elements are present, the case can move forward. Ideally, a civil case resolves in a settlement without going to court (this is analogous to a plea bargain in a criminal case). If the two parties are unable to resolve their dispute in conference or mediation, the case will go to trial. Only a small percentage of lawsuits ever make it to a courtroom.

How Do I Start a Personal Injury Lawsuit?

The initial step of filing a personal injury lawsuit is to record and document everything that led to the accident and resultant injury:  This should be done as soon as possible.

  • Write down as much as you can recall about the incident
  • Take photos or video of where the accident happened and any machinery involved (including motor vehicles) as well as your injuries
  • Collect and preserve any evidence if you are able
  • Note names and contact information for any witnesses
  • Record the dates of all medical treatments, your physician’s name, along with any procedures performed and medication prescribed

It bears mentioning that the sooner you seek medical attention following an injury accident, the more likely you will win your case or secure a settlement. The reason is that the longer you wait, the more difficult it can be to prove that your injury resulted from the accident.

One thing you should not do is sign anything until your personal injury attorney has examined it. Furthermore, do not discuss your injury or the accident with anyone other than your attorney (and law enforcement following an auto accident or assault). Post nothing on social media or even mention it. The reason is that you may inadvertently give the defense ammunition and seriously compromise your case.

Do I Really Need an Attorney for a Personal Injury Case?

Legally, any competent adult can represent him or herself in a lawsuit. However, acting as your own counsel is not a wise idea, even if you have some legal knowledge and experience. Personal injury cases can be complex and involve personal and often emotional issues. It is better to have outside representation from a legal professional who is not personally attached to the situation and can therefore present an objective view.

In addition, a trained personal injury lawyer can file paperwork with the court and help determine whether the defendant is insured and whether their policy covers their liability. In any event, many litigation firms accept personal injury cases on a contingency basis. This means that you as their client do not have to pay anything upfront. The lawyers take their fee as a percentage of any settlement they win for you. If they do not win your case, you pay nothing.

What Happens Once the Case Is Filed?

Once you have provided your attorney with as much evidence and documentation as possible, the case can move into the discovery phase. This is when lawyers for the plaintiff and the defense lay all pertinent evidence on the table for each side to examine. In an auto accident, the discovery phase may take only a few weeks. However, in cases involving workplace injuries, medical malpractice or product liability, the process may go on for six to 12 months or longer.  You and your attorney may need to appear in court periodically during this time to provide updates.

Some product liability cases grow to mammoth proportions when a single product injures a large number of people. One example is the recent legal action against Bayer AG over the herbicide Roundup, in which plaintiffs allege the product caused their leukemia. Because of the vast number of plaintiffs, the lawsuits were combined into a multi-district litigation.

Unlike a class action, plaintiffs in an MDL bring their own individual cases. From that pool, a handful is randomly selected to go to trial. These “bellwether” trials indicate whether future trials will primarily favor plaintiffs or the defendant. If the former, the defendant usually settles by establishing a fund against which current and future injured parties can file claims.

What About Personal Injury Due to Assault?

Assault and battery are always criminal matters. At the same time, they are also grounds for a lawsuit. Therefore, a person who threatens and attacks you not only faces criminal penalties but also civil liability.

Even if your attacker is exonerated in criminal court, you can still pursue civil damages. Furthermore, you are more likely to get relief in litigation because the standard of proof is lower.  This is yet another difference between criminal law and torts. “Beyond a reasonable doubt” is a very high standard. In contrast, the standard in litigation is “a preponderance of evidence.” This simply means something is more likely to be true than not. To use a baseball metaphor, the former is a home run, while the latter is third base.

Contact Judd Shaw Injury Law™ Today

The team at Judd Shaw will be in touch within 72 hours and make an appointment with one of our attorneys. If you are hospitalized or otherwise incapacitated, your attorney will come to you. Guard your legal rights — call today.