Most people have heard the term “civil litigation,” and most have a sense that there’s a difference between the criminal justice system and other legal matters. But the term “civil suit” or “civil litigation” can still be confusing. This blog is designed to help clear up some of that confusion.
In a civil lawsuit, the parties are typically private individuals, though the government may be a plaintiff or a defendant in a civil action, if certain types of remedies are sought (see below). As a general rule, though, the parties to a civil suit have legal issues with each other. In a criminal action, on the other hand, the government always brings the legal action (called a prosecution) and does so on behalf of the State of New Jersey.
The Remedies Sought
In a civil action, the remedy most often sought is damages, or the payment of money to compensate a party for his or her losses. It can be for breach of contract, for personal injury or for a violation of certain rights. In limited circumstances, a party to civil litigation may ask the court for specific performance—requiring the defendant to do what he or she promised to do, such as sell a unique piece of real estate or work of art. A party to a civil action can also recover punitive damages in some circumstances, but the defendant in a civil action will never be sentenced to any type of incarceration, community service or other punitive sanction.
Though there are limited instances where the laws governing civil actions are found in statutes, most civil law is what is known as common law, or judge-made law. Most of the law of personal injury and contract has evolved over centuries through opinions written by judges hearing cases. To the contrary, all criminal acts are statutory, meaning there is a written law enacted by a legislative body making the act a violation of the law.
The Burden of Proof
The concept of burden of proof answers this question—how certain do we need to be of the result? In a criminal matter, where the potential sanctions are greater, the prosecution must prove its case “beyond a reasonable doubt.” However, in a civil action, with individual freedom not at stake, the burden of proof is typically “a mere preponderance of the evidence,” essentially more likely than not.