Clients often ask how an attorney’s strategy and plan differs in a criminal defense vs. a civil prosecution of a personal injury claim. It is important to understand that there is a dramatic difference between these 2 areas of law which begins with the burden of proof and the party responsible for that burden.
The Burden of Proof – Criminal Defense vs. Civil Prosecution
As I have stated earlier, the burden is never on a criminal defendant to prove that he or she is innocent but rather on the prosecution (government or state) to prove that person guilty beyond a reasonable doubt. On the civil side, however, the plaintiff has the burden of proof which is “by a preponderance of evidence”, which is a much lower evidentiary standard than a criminal standard. Unlike a criminal defendant, however, a civil plaintiff, through his attorney, must prosecute a claim to reach either a settlement or a victory at trial.
Unlike a criminal defense lawyer, a personal injury or plaintiff’s attorney will not focus his attention on the violation of a person’s Constitutional Rights under the 4th, 5th, or 6th Amendments or some other violation of the person’s due process rights under the US Constitution, but rather whether the liable party violated the duty of care to the individual.
Following an arrest, a criminal defense lawyer attempts to exclude evidence at the pre-trial stage and create reasonable doubt at the trial stage. The plaintiff’s attorney, however, tries to build a case during the discovery process through depositions and the collection of other evidence such as documents, videos, or other recordings along with a series of questions known as interrogatories. If the civil claim proceeds to trial, the plaintiff’s attorney must prove by a preponderance of evidence that the liable party violated his or her duty of care to the plaintiff. In addition to establishing liability, the attorney must also prove damages in order to recover money on behalf of his or her client. Below is a basic overview of the civil claims process
INITIAL CASE REVIEW
As the civil claim process begins, the attorney investigating the accident or incident obtains photos, police reports and possible witness statements. In addition, the attorney will contact the insurance company of the other driver or liable party to resolve any property damage claim on your behalf. During this process, the plaintiff’s attorney may also analyze your car insurance and health insurance policies to determine what coverage apply to your case.
During this stage the attorney collects all of the medical bills, reports, and records of lost wages. He will also evaluate the case based on the injuries, medical treatment, and jurisdiction. A full evaluation is done once the medical care is completed. All of these records are sent to the liable party’s insurance company and your attorney will attempt to negotiate a settlement. This process can take several months.
LITIGATION AND TRIAL
If the liable party’s insurance is unwilling to offer a reasonable settlement, your attorney will file a lawsuit and serve the defendant with a copy of that lawsuit. After the lawsuit is filed, the discovery process begins and both parties investigate the facts in the case and obtain evidence. During the discovery process both sides will prepare questions for the other side to answer, these are known as Interrogatories, and also take depositions of the defendant and other witnesses. Your attorney will also provide the defendant’s attorney with all of the data related to your damages which will include medical bills, records, lost wages, and tax returns.
During the discovery process your attorney will likely receive interrogatories and a request to take your deposition and the depositions of other witnesses. If a case cannot be resolved during the discovery process each side will prepare for trial or possibly arbitration. If the case does resolve during the discovery process, your attorney will confirm that all of your medical bills and liens are paid and then distribute the proceeds of the settlement to you. It is important to keep in mind that the settlement can happen any time after you have completed your medical care and right up until trial. This is similar to the criminal process where a plea can occur any time prior to trial.
The civil claim process and a criminal defense strategy are drastically different. Both of them require that your attorney vigorously investigate all aspects of your case so that he is in the best position to advocate for your interest.