What’s the difference between civil and criminal law?

Updated: May 12





AN EXTREMELY POPULAR question on Google. This question is consistently ranked in the top 5 questions that users ask Google in the English-speaking world.


I have my partners in Vudini to thank for that information.


Civil and criminal law are easily distinguished by 2 standout features: the burden of proof and the standard of proof.


Burden of Proof.


The general rule in civil cases is that “he who asserts must prove”. What this means is that if you are arguing that a wrong has been done against you, then it is up to you to prove it i.e. the burden of proof rests with you.

The Defendant- generally- doesn’t have to prove anything.


the jury doesn’t have to be 100% sure
that you are guilty before they can convict.
A doubt can still be entertained by them.

Standard of Proof.


If you have to prove the existence of a wrong, do you have to prove it beyond a reasonable doubt?

No.

The standard of proof is much lower in civil cases than criminal cases i.e. it’s a lower bar to reach.


In criminal cases the State -it is always the State- must prove the case beyond a reasonable doubt (a very high bar). It is difficult to “put a number” on what this is but it is not absolute.

In other words, the jury doesn’t have to be 100% sure that you are guilty before they can convict.

A doubt can still be entertained by them.


All that is required is that they have examined the evidence and ruled out any “reasonable” doubt.


In civil cases the standard of proof is much lower i.e. the balance of probabilities. This can be statistically measured as 51%.


So, in a civil case your obligation is to convince the court that your version of events is more probable than the other side’s.


But it doesn’t end there.


IF YOU DON'T CONVINCE the court that your version of events is more probable than the other side, or if the probabilities are equal, or if the court cannot decide which version of events is more probable, then you will lose on this issue.


That has financial consequences.


The general rule in civil cases is that “costs follow the event”. This is an ancient legal rule which states that the loser pays.


In other words, the wiener gets their legal costs paid by the loser, who not only has to pay for their own legal costs, but also the legal costs of the winner.


Or as ABBA might put it: “The winner takes it all”.

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