Who is a “defendant”?

In a civil law case, the “defendant” is the person named in a lawsuit filed by the plaintiff, usually because the plaintiff claims the defendant has injured him in some way and therefore should pay compensation or be required to follow court orders written in an injunction. “Defendant” is also the term used for a person charged with a crime, but the procedures and rights that a criminal defendant has differ in many ways from those of a civil defendant.

Civil law cases include torts cases for personal injury, property damage, and similar losses, as well as breach of contracts cases, in which the dispute can be settled by one party paying money to the other or obeying a court injunction. If the plaintiff in a civil law case wins, the court will order the defendant to pay damages.  If the defendant wins, however, the plaintiff will not receive anything.

A defendant in a torts case becomes a defendant when a plaintiff names her in a complaint filed with the court and sends the defendant a copy of the complaint, along with a court summons. A single injury case may have more than one defendant. Each defendant is allowed to have her own attorney, however, because the interests of defendants may not be the same. A single injury case may also have more than one plaintiff, but the plaintiff’s injuries must be similar enough that one verdict and payment from all the defendants is enough to compensate each plaintiff for her injuries.

If either the plaintiff or defendant is not satisfied with the trial court’s verdict, they may file an appeal to a higher court. At the appeals level, the person who files the appeal is known as the petitioner, while the person on the other side of the case is known as the respondent. These new titles depend on who filed the appeal, not on whether that person was the plaintiff or defendant during trial.

Instead of “petitioner” and “respondent,” some courts still use the phrases “plaintiff in error” to refer to the petitioner and “defendant in error” to refer to the respondent. However, these titles are no longer used in most courts, mostly because it is confusing when the party who was the “defendant” at trial suddenly becomes the “plaintiff in error” on appeal, or vice versa.

In some civil cases, both the plaintiff and the defendant may “win” in one sense, but “lose” in another. For instance, if the affirmative defense of comparative negligence applies, the plaintiff and defendant in an injury case were both negligent and should only pay the amounts for which they were personally negligent.

Therefore, if the court finds that the defendant’s negligence caused 60 percent of the plaintiff’s injury and the plaintiff’s negligence caused 40 percent of her own injury, the defendant will only have to pay the plaintiff his 60 percent, not the full 100 percent. Although the defendant still has to pay in this example, she does not have to pay as much as she would if 100 percent of the plaintiff’s injuries had been caused by the defendant’s negligence.

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