Private disputes, whether between people, companies or both, are generally settled by civil lawsuits in our country.
When a contract is breached, a nuisance created or a person negligently harmed, we go to court.
While some decry America as a litigious society, in truth the number of lawsuits has steadily declined over the past decade.
And our civil justice system is far more civilized than the alternate “eye for an eye, tooth for a tooth” system still prevalent in many places around the globe.
Knowing we can all have “our day in court” carries an added bonus: it helps prevent the compound harm which inevitably occurs when one attempts to take the law into one’s own hands. While the American civil justice system is not perfect, it’s the best ever created.
How does our civil justice system operate? First, an aggrieved person or company, the plaintiff, files a lawsuit against another party, the defendant. Plaintiffs always bear the burden of proving their case.
But unlike criminal cases, where guilty defendants can lose their lives or liberty, civil defendants found guilty, or liable, are merely ordered to pay money — or to do, or not do, a particular act.
Because a civil defendant doesn’t face jail or execution, the burden of proof is much lighter: plaintiff must only prove the defendant is “more probably” liable as opposed to guilty “beyond a reasonable doubt.”
Another reason our Founding Fathers chose to require “beyond a reasonable doubt” proof in criminal cases is that the government has nearly unlimited resources — FBI, state police, crime technicians, etc. — while private citizens simply aren’t able to investigate and document civil wrongs as quickly and carefully as can governments when crimes are committed.
So the lighter burden for civil litigants recognizes this reality.
Once a civil lawsuit is filed, the parties can “discover” all evidence the other side possesses by asking written questions (interrogatories), taking statements under oath (depositions) or requesting copies of documents (requests for production). This discovery process is one reason why civil cases take time, but also explains why most ultimately settle.
Each side eventually knows the evidence long before trial; there are no surprises. And because the facts and evidence become well-known to both sides before trial, compromise settlements result.
But here’s the biggest reason most civil cases settle: our state was among the first to mandate Alternative Dispute Resolution (ADR); and in Indiana it’s taken seriously. Civil litigants in Indiana are usually required to try and resolve disputes through ADR. ADR often involves both sides hiring a neutral mediator, perhaps a retired judge, to meet with both parties and forge an agreement. And typically it works.
But what happens when it doesn’t? A trial takes place, decided either by a jury of six or a judge, or bench trial, depending on the type of case.
Divorce cases, for example, are always bench trials, while personal injury cases involve juries, unless all parties agree to a bench trial. Trials typically occur years after a lawsuit is filed, yet another reason cases settle. But when civil cases do go to trial, it’s nothing like Judge Judy.
While the TV courtrooms of Judges Judy or Mathis are not too dissimilar from what one might see in some Indiana counties, the resemblance ends there.
First, the cases decided on television are not trials but arbitrations — a kind of ADR in which the parties agree to have a neutral “arbitrator” decide the case rather than try to reach an agreed settlement. And while TV judges are often retired jurists, they don’t decide the case as a real judge would.
Real judges hearing real cases in real courtrooms are bound by rules of judicial conduct requiring them to be both courteous and respectful to the litigants, something seldom demonstrated by TV judges who often rudely interrupt, inject sarcasm or hurl insults.
Real judges have a deep respect for the trial process and strive to protect its integrity. And real judges understand the importance of preserving their personal reputations as well as the overall high esteem held for all judges in our justice system. So don’t confuse TV trials with reality; they’re not even close. But do keep faith in our civil justice system — it’s the best, by far.
Kenneth J. Allen is an Indiana attorney and president of the Indiana Bar Foundation’s board of directors. Send comments to letters@daily journal.net.
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A Democracy’s Primer is a collaboration between the journalism and legal communities to aid the public’s understanding of how government works with citizen engagement. Volunteers for the Indiana Bar Foundation will write the articles for distribution by the Hoosier State Press Association Foundation. More about both organizations may be found at www.inbf.org/ and http://www.hspafoundation.org/.
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Kenneth J. Allen is an Indiana attorney and president of the Indiana Bar Foundation’s board of directors. Send comments to [email protected].
