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In US law, a defendant is someone who is prosecuted or sued, depending on whether they are a criminal defendant or a civil defendant.

Although criminal prosecutions work differently than civil lawsuits, it is possible to be a defendant in both systems at the same time in response to the same course of conduct.

A murder defendant, for example, might also face a wrongful death lawsuit in civil court. 

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Criminal Defendants vs. Civil Defendants: A Comparison

There are dozens of ways to distinguish between a criminal defendant and a civil defendant.

Following are some of the most important distinctions.

The Identity of the Opposing Party

In a criminal trial, the defendant’s opponent is the prosecution, who represents the government. Case names reflect this: “California vs. Kramer,” for example, or “United States vs. Kramer.”

In a civil lawsuit, the two parties are usually both “persons”–- natural persons or legal persons (corporations, for example). That is why a lawsuit might be titled “Jones v. Kramer,” for example, or “Kramer vs. Pizza Hut.”

Evidentiary Standards: “Preponderance of the Evidence” vs. “Beyond a Reasonable Doubt”

Evidentiary standards determine how much evidence constitutes “proof”. Different evidentiary standards apply in criminal court and in civil court.

The Beyond a Reasonable Doubt” Standard

In a criminal trial, the prosecution must prove the defendant’s guilt beyond a reasonable doubt. This standard does not represent a demand to establish that the defendant’s innocence is impossible; only enough evidence that is convincing enough to show that the defendant’s innocence is implausible in the eyes of a reasonable person.

The “Preponderance of the Evidence” Standard

In a civil lawsuit, the plaintiff must establish the defendant’s liability by a “preponderance of the evidence.”

The preponderance of the evidence standard is much easier to meet than the beyond a reasonable doubt standard. All you need to do to meet this standard is to show that it is more likely than not that the defendant is liable.

As long as your evidence outweighs the defendant’s evidence, even by a pinhead, you win.

Remedy: Punishment vs. Compensation

In a criminal prosecution, sentencing the defendant is meant to punish them, primarily by imprisoning them or fining them.

This serves several purposes, including justice and deterrence. Compensation may also come into play if the court orders the defendant to pay restitution to the victim. 

In a civil lawsuit, the goal is to compensate the plaintiff for their losses, typically by assessing money damages against the defendant.

The goal is to put the defendant in as good a position as they would have enjoyed if the defendant’s wrongful conduct had never occurred. In a small percentage of cases, a court will award punitive damages for a civil claim. Courts award punitive damages, if at all, in addition to compensatory damages.

Multiple Defendants

You can sue or prosecute multiple defendants in the same action if you have grounds to do so. Common examples include:

  • A drunk driver and the bar that sold them alcohol (DUI accident);
  • An employee and their employer, since employers generally bear civil liability for their employees’ on-duty misconduct; 
  • Two or more people who engaged in a criminal conspiracy; and
  • Two parties whose actions jointly caused your injuries.

Personal injury lawyers often seek third-party defendants when the original defendant lacks the financial resources to pay a claim. This is known colloquially as the “deep pockets” strategy.

Common Personal Injury Lawsuit Defenses

Following are some of the most common defenses asserted by personal injury lawsuit defendants:

  • Expiration of the statute of limitations. If you miss the statute of limitations deadline to file a lawsuit, the defendant wins without a trial. The personal injury statute of limitations in California usually expires two years after the accident. 
  • Lack of causation: The defendant might argue that their misconduct did not cause your injury. They might argue, for example, that your injury was pre-existing.
  • Comparative fault: The defendant might argue that you were partly or wholly to blame for the accident. If you were partly to blame, the defendant’s liability would be reduced but not eliminated.
  • Failure to mitigate damages: A defendant must take all reasonable steps to minimize their damages. A defendant who failed to follow their doctor’s orders, for example, should not win compensation for the consequences of that failure.
  • Inappropriate defendant. After a truck accident, for example, you might sue the trucking company on the theory that as the driver’s employer, they are liable for the driver’s misconduct. The trucking company might reply that they are not liable because the driver is an independent contractor, not an employee.  
  • Insurance policy limitations: No matter how large your claim might be, an insurance company only bears liability to the extent of their coverage limits. If the defendant lacks financial resources to make up the difference, you could be out of luck.

Many other defenses might apply, depending on the facts of your case.

Is the Insurance Company a Defendant in a Personal Injury Claim?

An insurance company is not a defendant in a personal injury claim when their only connection with the case is that they insured the original defendant. 

The insurance company is responsible for:

  • Providing the original defendant with an attorney; and 
  • Paying the claim up to policy limits if a court finds the original defendant liable.

In most cases, the insurance company will negotiate a private settlement with you. You might not even get a chance to meet the defendant. 

Injury victims sometimes successfully represent themselves for small, uncomplicated claims. For most claims, however, you’re probably better off hiring an experienced personal injury lawyer. 

Typically, hiring a lawyer will increase the value of your claim by much more than the amount of the lawyer’s fee. Most personal injury lawyers work on a contingency fee basis, which means they won’t charge you anything unless they win your claim.

If you need a personal injury attorney, contact our Los Angeles law office to schedule a free consultation. At M&Y Personal Injury Lawyers, we have over 100 years of collective experience and are available 24/7 to take your call.



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