The Differences between Criminal Prosecution and Civil Litigation

In the American legal structure, the laws and procedures are generally divided between the criminal justice system and the civil justice system. The factors that distinguish the two different legal paths include:

  • The parties—In a criminal action, the party initiating the process is always a governmental entity. It may be a local municipality, the state or the federal government. In civil litigation, the initiating party is more often a private individual, or business entity.
  • The basis for legal action—Criminal cases are always based on allegations of violation of a statute (a written law, typically entitled a “criminal code”). A civil case may allege violation of a statute, but can also be based on common law (judge made law).
  • The nature of the wrong—In a criminal action, the wrongful act is considered to be one against society as a whole. In a civil action, the wrongful act is considered to have affected only the parties who filed suit.
  • The burden of proof—In a criminal case, guilt must be proven beyond a reasonable doubt (many experts estimate 90% certainty). In civil litigation, liability must be proven by a “preponderance of the evidence,” i.e., it must only be shown that it is more likely than not that the defendant was responsible.
  • The penalties—In a criminal prosecution, the defendant may face fines, incarceration or be ordered to make restitution. In civil actions, the most common remedy is the payment of damages, although there are instances where a court can order specific performance (require that the party do what was promised).

Civil litigation may be filed in state or in federal court, based on the issues involved, the citizenship of the parties, and the amount in controversy. Civil litigation includes all non-criminal legal actions, including divorce, breach of contract, property disputes and bankruptcy matters.


The Civil Litigation Process

To initiate a civil suit, a party (the plaintiff) must file a complaint in state or federal court, alleging loss or injury because of the wrongful conduct of another party. Once the complaint is filed, the defendant has a specific amount of time in which to respond, or the plaintiff may seek to obtain a default judgment. Once the complaint and answer have been filed, the parties will typically engage in discovery—that portion of the process where the parties gather, evaluate and preserve evidence. The American civil justice system requires “open discovery.” This means that both sides must have equal notice of and access to all potential evidence and testimony. This is typically accomplished through depositions, where attorneys for both parties question witnesses under oath.

A party may settle a civil suit at any time during the process, even after a jury returns a verdict. Because of the overloaded dockets in the state and federal courts, judges will regularly encourage parties to consider settlement.

Once discovery is completed, the parties will typically file motions and appear in court to address such issues as potential admissibility of evidence, or dismissal of some or all claims.

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