Jump to Navigation

E-Newsletter - Family Law

Civil and Criminal Litigation Basics

The bifurcation between civil practice and criminal practice may be the sharpest demarcation in the American legal system. Attorneys who practice criminal law often do so at the exclusion of civil practice, and vice versa. While they share the same basic structure — parties to disputes present their arguments to a judge who resolves the matter by examining the facts, applying the relevant law and issuing a decision — more separates criminal and civil practice than they have in common. Civil cases concern private conflicts between individuals, businesses and the government; criminal cases involve law enforcement by the government against individuals. In fact, only in family law practice, perhaps, do the two regularly and often overlap. With cases ranging from divorces and child support agreements to domestic violence charges and requests for temporary restraining orders, family law attorneys often find themselves bridging the gap between civil and criminal practice. It is important, then, for those seeking help with family law issues to understand how each court system works.

Civil cases make up the majority of state cases filed. Civil matters involve disputes among private parties, or between a private party and the government. The plaintiff initiates the lawsuit by serving a summons and complaint and by filing the complaint with the court. The complaint contains the plaintiff's claims, and requests a remedy from the court. Usually, the aggrieved party seeks a financial award as damages, but occasionally plaintiffs request non-monetary relief. Plaintiffs can demand a court order called an injunction that bars a person from acting in a certain way. Courts also can issue a restraining order to restrict a party's actions until the case is resolved.

The defendant must answer the complaint within a specific period of time, either by responding directly to the issues raised in the complaint or by filing a motion to dismiss the claims. Prior to trial, the parties engage in discovery, a procedure that allows each side to obtain factual evidence concerning the other party's arguments. Some states require that the parties pursue alternative dispute resolution prior to trial to try to reach an agreement or settlement, so they do not have to litigate the matter.

Civil and criminal trials follow the same general model. The parties present opening statements, and then the plaintiff or prosecution presents its case by examining witnesses. The defense may cross-examine these witnesses on their testimony, followed by re-direct examination by the plaintiff. When the plaintiff or prosecution rests its case, the defense has its opportunity to present their case through witness testimony. Throughout the testimony, the parties may object to evidence introduced or questions, based on the rules of evidence. The judge decides whether to sustain (or agree with) the objections or to overrule them and allow the evidence or question. After testimony, both sides present closing arguments and the case proceeds to verdict.

A jury is not always required in a civil trial; however, parties are entitled to request a jury. A jury trial may also be waived in order to expedite the proceedings, in which case the judge rules on both factual and legal aspects of the case. Additionally, civil and criminal disputes bear different standards of proof. The plaintiff in a civil case must prove his or her case by a preponderance of the evidence, meaning that if the plaintiff presents the more persuasive evidence, he or she wins the case. In a criminal trial, the prosecution must show that the defendant is guilty beyond a reasonable doubt. The reasonable doubt standard does not require the jury to be absolutely certain of guilt, but they must not harbor any reasonable doubt about the matter. These different standards may explain why an individual who is subject to a criminal and civil trial for the same alleged actions can be found not guilty in one instance, but held financially liable in the other.

After a court’s decision or verdict, the losing party may appeal. Appellate systems vary, but all jurisdictions have at least one level of appellate review for civil and criminal cases. On appeal, the losing party can raise only legal issues concerning the trial court's decision, for example, he or she may claim that the court misapplied the law to the facts of the case, or that the trial court committed some legal error in conducting the trial. However, the facts of the case are fixed as established at the trial court level and cannot be reopened on appeal.

Preparing to Meet with Your Family Law Attorney

To read and print out a copy of the checklist, please follow the link below.

Preparing to Meet with Your Family Law Attorney

You can download a free copy of Adobe Acrobat Reader here.

Copyright © 2008 FindLaw, a Thomson Reuters business

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

View Archives