Indiana Injury Lawyers Blog

Most people are aware that in a criminal case, the judgment is either guilty or not guilty. In a civil case, however, the defendant is considered either liable or not liable. In a criminal case the punishment is referred to as "sentencing", in which fines, probation, and jail time may be imposed on the defendant. However, in a civil case, punishment is in the form of financial damages for which the defendant is liable to the plaintiff for the harm he or she caused the plaintiff.

Proof

The standards of proof are very different in criminal and civil proceedings. In a criminal case a jury (or in a bench trial a judge) must conclude that the victim is guilty of the charge "beyond a reasonable doubt." However, in a civil case a jury (or judge) must conclude that the "preponderance of the evidence" demonstrates that the defendant is liable for the allegation. In some circumstances in a civil trial the intermediate standard of proof of "clear and convincing evidence" is applied. This is typically applied in case where there are very steep consequences, such as in the determination of parental rights or involuntary commitment to a psychiatric hospitalization. The differences between theses standards bears a strong relationship to the severity of the punishments available. Since criminal law has the possibility of incarceration, the stakes are much higher for the defendant and, as such, the public policy supports the idea that the proof should be much higher.

In a criminal case, the state bears the burden of proof in showing that the defendant is guilty. In a civil case the burden is placed upon the plaintiff. However, in some cases the burden can shift. For example, in many jurisdictions an affirmative defense such as self defense must be demonstrated by the defendant. One example in a civil case would be in which the court finds that the circumstances meet the qualifications for res ipsa loquitur (negligence in itself), and thus an inference of negligence can be made. In that situation the burden shifts to the defendant to prove that the negligence/breach did not occur.

Jury

In a criminal case the jury is required to come up with a unanimous verdict. If they do not, it is considered to be a "hung" jury and the state has the option of retrying the defendant. On the other hand, in civil cases, the defendant can still be found liable with a split jury decision.

Juries are told to resolve issues of fact and apply the law to those facts. Unlike in a civil case, in a criminal case a jury's acquittal is not reviewable on appeal or otherwise. Thus, in a criminal context the jurors have the power to "nullify", meaning they can acquit a criminal defendant despite clear evidence of his guilt. In a criminal case, juries may simply not believe the evidence or feel that the law or its application in that particular case is unfair, and despite their instructions to the contrary, may choose to ignore the law in their decision. Because of this possibility, unlike in a civil case a judge cannot issue directed verdict to a jury on an element because the jury retains the power to disregard the law. State ex rel. Family Support Div. - Child Support Enforcement v. Lane, 2010 WL 2265147 (Mo.App.,2010.). However, if the jury verdict is so absurd and significantly against the weight of evidence, sometimes the criminal judge, in very rare circumstances, will overturn the ruling when the jury enters a verdict of a guilty verdict by granting of a defendants' motion of a judgment n.o.v or notwithstanding the verdict, or motion for a new trial. However, the prosecution cannot make this motion in the case of an acquittal.

The judge retains greater control over juries in a civil trial than a criminal trial. Sometimes in civil cases judges require the juries to fill out what are called special verdict forms which explain their decision for the parties. Additionally the judge is more likely to make a decision for the jury either before or after the jury verdict with motion for judgment as a matter of law either before (directed verdict) or after (n.o.v or notwithstanding the verdict), or even issue a new trail if the judge feels that the verdict was almost outside what was reasonable or at odds with the law. The standard for a judgement as a matter of law either before or after the jury issues its verdict is whether in light of the evidence, a reasonable juror would not come to a different conclusion. In order to have a ruling for a judgment as a matter of law after the jury verdict, the motion must first be made prior to the verdict, and then if the judge chooses not to grant it, it is "suspended" and can be resubmitted after the jury comes back with their decision. Usually the party will make a motion for a new trial along with this resubmitting of the motion, hoping that if the judge doesn't want to completely overturn the jury verdict and possibly abuse his discretion, he or she will at least allow the case to be retried.

The focus of a jury in their deliberations in a criminal case and a civil case is often quite different. In a criminal case, the jury is looking specifically at the actions of the defendant, and whether those actions constituted a criminal act. There are some situations in a criminal trial where the focus turns to the victim, such as in arguments of self defense, but the majority of the trial focuses on specifically the actions of the defendant.

In a civil trial however, a significant portion of the trial will be regarding the damages to be awarded. Damages differ from a punishment since they are to compensate the victim or plaintiff for the harm caused by the defendant, and thus aren't determined by the actions of the defendant, but the consequences of those actions to the victim or plaintiff. Therefore the evidence presented is focused on the plaintiff or the victim and consequences to him or her as a result of the defendants' behavior.

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In a civil case, the allegations are presented in the form of a complaint which is filed with the court by the plaintiff. The complaint contains the relevant facts and allegations of wrong doings of the defendant. The defendant is then "served" by service of process. There are differing rules between the state and federal court systems and between the various state as to what constitutes valid service. The defendant can then file an Answer to the complaint with the court, affirming or denying the plaintiff's allegations or file a motion like a motion to dismiss. It the defendant doesn't respond or show up, the judge can enter a default judgement against them.

In a criminal case, a defendant is first arrested based on probable cause that the defendant violated a criminal law. Law enforcement officials then present the evidence to the prosecutor, who then decides whether or not a complaint should be filed against the defendant. Only the prosecutor can file the complaint. If the prosecutor does decide to do so, then a complaint is filed in the court listing the relevant facts and the alleged criminal violations.

In both criminal and civil cases there are many proceedings which take place before the trial and the selection of the jury. One or two days in a work are often set aside as "motion days" where pretrial motions are submitted and ruled on by a judge. In a civil case, a judge also presides over pretrial conferences with all parties. There they set the plan for trial and the discovery process, and the judge works with the parties to encourage them to settle the case. If they cannot reach an agreement, the judge will attempt to narrow the legal and factual issues before the commencement of the trial. In the criminal process, an arraignment is first done before the judge. There the judge presents the formal charges listed in the complaint to the defendant and makes a determination on bail. Following that, the court conducts a preliminary hearing where the prosecutor puts forth evidence demonstrating there is enough probable cause to go to trial. Like in a civil case, a pretrial conference is also had between the defense attorney and the prosecutor before the trial.

Right to an Attorney

The Supreme Court of the United States held in Gideon v. Wainwright that the sixth amendment requires that the government provide an attorney and other assistance in order to get a fair trial in all criminal cases where imprisonment is a possible result of a guilty verdict. However, no such right exists for civil cases. Since 1964 significant efforts have been made to equalize the playing field in civil cases and allow defendants fair representation in trial. There has been an increase in federal funding for programs which provide legal assistance to the poor. Prepaid legal insurance programs are also becoming more common. The contingent fee system is also providing an incentive for successful attorneys with resources to take on poorer clients.

Furthermore, there have been some modifications to the traditional "American Rule", in which each party pays their own costs of proceedings. More recently, in some specific causes of action winning parties can recover court costs and attorney fees. Additionally procedural devices through the discovery process to prevent unfair surprise to either party and as well as the imposition of sanctions by judges are helping limit abuse of discovery rules to provide a fair civil trial for both parties.

Right to Jury

The sixth amendment provides that for all criminal proceedings, the defendant is entitled to a speedy and public trial in front of an impartial jury. However, not all criminal trials are held before a jury. The criminal defendant retains the power to waive his right to a jury trial and have what is called a "bench trial", in which the judge serves as both fact finder and rules on the matter of law at hand. Courts have held as well that for petty offenses there is not right to a jury. Riemers v. Eslinger, 781 N.W.2d 632 (N.D.,2010). The important issue in determining whether or not there is a right to a jury trial depends on the harshness of the punishment which may be imposed if the defendant is found guilty, but no definite rule has been established through judicial proceedings.

In civil cases not every case must be tried in front of a jury either. The Constitutional provision providing for the right of jury trial in civil cases only refers to cases which were civil actions available under the common law in 1791 when the Constitution was adopted. Allen v. Anderson, 57 Ind. 388 (Ind.,1877). Thus, the determination of whether or not there is a right to a jury in a civil case can be tricky. It is determined by looking at the essential character and nature of the claim for relief sought in the pleadings. Stevens v. Olsen, 713 N.E.2d 889 (Ind.App.,1999). Furthermore, right to a jury trial extends only to issues of fact and not law. Sumpter v. State, 340 N.E.2d 764 (Ind. 1976). Law in the case is determined by the judge. It is also important to note that a defendant in a criminal case may seek a speedy trial through a statutory procedure, but there is no comparable procedure for a "speedy trial" in the civil context. Presumably, a party could make a formal request to set the case for trial on the first available date, but there is nothing which guarantees the granting of their request.

Only three members of the commission are attorneys, who are elected by their colleagues in Indiana's 2nd judicial district. Also sitting on the commission are Indiana Chief Justice Randall Shepard and three non-attorneys. Bill won the election for the District II attorney seat on the Judicial Nominating Commission with a total of 672 votes. Jan M. Carroll was second with 543 votes, Kathy L. Osborn third with 399 votes, Joel M. Schumm was fourth with 310 votes and David R. Hennessy fifth with 272 votes.

Mediation involves a neutral, third-party who assists the disputing parties in reaching a mutual agreement outside of court. The mediator does not decide the case or even make legal recommendations. The sole job of the mediator is to assist the parties in the process of reaching an acceptable agreement by using techniques to open and improve dialogue between the parties. Mediation in Indiana is governed by Indiana Code 4-21.5-3.5 which sets guidelines for the mediation procedure such as selecting a mediator and submitting evidence. Under this chapter, a mediator has the same immunity as a judge would have in Indiana.

• Temporary or permanent injuries
In determining damages, the nature and extent of the plaintiff's injuries, as well as the effect of the injuries on the plaintiff's ability to function, are considered by the court or jury.

In some instances, courts will also award a plaintiff with punitive damages. Punitive damages are not meant to compensate the victim but rather are meant to punish the guilty party. In these instances, a plaintiff can receive a higher damage amount than the injuries they sustained in order to deter the defendant from acting in the same manner again. Punitive damages can typically be obtained only when the wrongdoer's behavior is especially egregious and our society deems it necessary to penalize them with excess damages. To obtain a punitive damage award in Indiana, a plaintiff must show more than mere negligence on the part of the defendant and prove with "clear and convincing" evidence that he "acted with malice, fraud, gross negligence or oppressiveness." This is a rather high standard.

Scenario 1: Keep It Out

Ticket Issued To A Plaintiff

The FDA sent a warning letter to Bayer in August 2008 demanding a campaign to correct misleading direct to consumer marketing which had been promoting the use of YAZ for conditions other than those for which it had obtained FDA approval. YAZ had been approved for birth control, for women who suffered from premenstrual dysphoric disorder PMDD (a markedly depressed mood, anxiety or tension affective lability and persistent anger or irritability) and for the treatment of moderate acne vulgaris in women who also desire pregnancy prevention. The advertising in question seemed to give the message that YAZ was indicated for PMS ( a much milder constellation of symptoms than PMDD) and all severities of acne rather than the specific approved indications. The FDA also sent a warning letter to correct misleading advertising to Berlex labs, the original producer of Yasmin in 2003. Bayer acquired the rights to market Yasmin in 2006. In February of 2009 Bayer settled with the FDA and the attorneys general of 27 states to mount a $20,000,000 campaign to correct the misconceptions it had created. The corrective ads ran from February through late July 0f 2009. During the period of ads labeled misleading by the FDA, YAZ sales nearly tripled from the 262 million in 2007 sales.

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