Defendant Greetings
When you hear “Civil Litigation,” your first thoughts probably go to those flashy Personal Injury commercials featuring an aggressive attorney with an absurd nickname.
However, not all civil litigation involves a lawsuit against a large corporation. Sometimes, that civil litigation machine gets pointed at an individual like you; and sometimes, the best defense is just a good defense. Today we’re going to discuss your options in defending a civil case.
Pretrial Settlement
Fewer than 5% of lawsuits end in a trial. Often, the attorneys for both sides are able to meet and discuss the demands of each side and negotiate a settlement that both sides can live with. This most likely involves drafting a new agreement to bind each side to the terms of the settlement.
If both sides aren’t able to find a middle ground to agree upon, then they may pursue Alternative Dispute Resolution to avoid the costly expense of a trial.
Alternative Dispute Resolution
One of the tools in your Civil Defense Attorney’s toolkit is ADR. ADR provides structure to encourage both sides to settle the dispute without the need for a trial.
Mediation is a form of ADR and is basically a settlement negotiation where a third party, the Mediator, is present to encourage both sides to work towards a settlement goal. However, the Mediator doesn’t offer an opinion or make any binding decisions.
Arbitration is a form of ADR and operates like a mini-trial where a third party, the Arbitrator, hears the arguments from both sides and offers an opinion on the likely outcome. Arbitration is often included in contract terms to avoid trials, but it can be either binding or nonbinding on the parties.
Criminal Trial v. Civil Trial
If the parties in a civil lawsuit aren’t able to come to an agreement, then they may press forward with a trial on the merits of the case.
Defending a civil lawsuit is much different than a criminal defense case because unlike the criminal case, there is no right to remain silent. The 5th Amendment only provides protection from incrimination, and if you aren’t being asked questions that will incriminate you, then the Judge may compel you to take the stand and answer questions.
Another large difference between civil defense and criminal defense is the burden of proof that the Plaintiff has to show to win their case. In criminal defense, you are presumed innocent and the jury has to find you guilty “beyond a reasonable doubt.” In most civil defense cases, the jury just has to find that you committed the act “by a preponderance of the evidence,” which is just 51% sure that you did it.
Settlement v. Trial
Your civil defense attorney will make recommendations of which course of action is best for you, but that decision will ultimately fall upon you.
Settlement has its benefits because it is likely less than you would pay if you lose the trial; but the downside is that you’re definitely paying something.
Trial has its benefits because if you win, you’re off the hook; but the downside is that if you lose, you may end up paying more than the settlement offer AND the other side’s attorney’s fees.
Discuss your options with your civil defense attorney and at least be prepared to consider the settlement options.
–Authored by Matthew L. Harris, Esq.,
Matthew Harris Law, PLLC – Civil Litigation Division
1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309
Tel: (806) 702-4852 | Fax: (800) 985-9479