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.