What is a Defendant?
The term “defendant,” like the term plaintiff, is classified as a legalese. Defendant is simply defined as a person or an entity that is being sued in a civil lawsuit, or that is being accused of a particular crime.
There are two types of defendants. There are defendants within a civil lawsuit, and there are defendants within a criminal trial.
A criminal defendant is typically accused of committing a crime. A prosecutor (an attorney for the city, state, or federal government) will charge that defendant with that particular crime.
A civil defendant is typically defending against a plaintiff who has alleged that the defendant is liable for a wrong committed against the plaintiff. If a defendant is found responsible for that wrong, then the defendant may be liable for compensating the plaintiff. Or if the lawsuit is one found in equity, the defendant will either be made to do something or stopped from doing something by a court.
Please take note that civil causes of action are not only filed in state courts. These causes of action can also be held in federal courts.
What is the Difference Between a Defendant and Plaintiff?
In a civil lawsuit, a plaintiff is a person or entity who files the claim in court against the defendant. The defendant is the other person named in the lawsuit that the plaintiff is suing. The defendant will be responsible for defending against the claim filed.
For example, Paul is sitting in her car, which is stopped at a red light. Dan is driving in his car while putting his cream and sugar into his to-go coffee. Dan is so busy putting cream and sugar into his coffee that he fails to notice the red light and Paul’s car at a stop at the red light. Because Dan is not paying attention, he does not step on his brakes in enough time and crashes into the back of Paul’s car.
Paul is gravely injured because of the crash. Dan’s insurance does not offer him enough coverage on his policy to pay for all of Paul’s damages. As a result, Paul files a personal injury lawsuit against Dan to recover those losses. In the above scenario, Paul would be the plaintiff in the lawsuit, and Dan would be the defendant.
The plaintiff is the party who initiates the lawsuit and, therefore, is responsible for drafting and filing the lawsuit against the defendant. The plaintiff initiates the lawsuit by filing a complaint with the court and serving the defendant with that complaint and a summons. The defendant is then responsible for responding to the complaint with his or her answer within the required time. If the defendant fails to respond to the complaint within the allotted time frame, the defendant may be held in default.
Additionally, the plaintiff always will carry the burden of proof. It is the plaintiff’s job to bring enough proof before the court to support the claim they have brought against the defendant. This task falls solely upon the plaintiff because the plaintiff must provide evidence to validate their allegations against the defendant.
What Happens If You Have Been Served with a Complaint and Summons as a Defendant?
Most states require that a defendant has twenty-one (21) days to file their answer. In the answer, the defendant will either accept or deny the facts of the case and will attempt to convince the court why the plaintiff should not win in its lawsuit.
A defendant can also plead affirmative defenses. Affirmative defenses is a response made by the defendant regarding the allegations and reasons why the plaintiff should not sue. Some affirmative defenses that a defendant may use include the following:
- Statute of limitations: the lawsuit is barred because the plaintiff did not file the lawsuit within the allowed time period.
- Contributory negligence: the percentage of negligence the plaintiff contributed to the wrongful act and its outcome.
A defendant may also want to file a counterclaim against the plaintiff. The counterclaim asks for damages from the plaintiff because of the plaintiff’s actions or inactions that caused the defendant to suffer losses under the same circumstances.
Defending Yourself in a Civil Action
If the above is not applicable to the defendant, the defendant may file a motion. A motion is a written request to the court to take a specific action. Federal Rule 12(b) allows for the defendant to file a pretrial motion, requesting the court to take action on the case prior to the trial. States have similar rules like the aforementioned federal rule.
There are several pretrial motions that a defendant can file. Below is a list of a few common motions:
- Motion to dismiss
- Motion for summary judgment
- Demurrer
A motion to dismiss is a written request made by the defendant. The request asks the court to throw out the claims against the defendant. These types of motions are typically granted where the evidence pled in the complaint is sufficient to make that determination. If the complaint requires the court to further investigate or requires further discovery of additional evidence, the motion probably will be denied.
Below is a list of scenarios where a motion to dismiss would most likely be granted:
- The complaint was filed in the improper court
- The court does not have proper jurisdiction over the case
- The complaint was improperly served
- There are other parties to the suit that may not have been properly named
If a motion to dismiss is not granted by the court, the defendant may file a motion for summary judgment. A motion for summary judgment is a written request asking the court to settle all or part of the case without continuing on with discovery or a trial.
The defendant can also file a demurrer. A demurrer is a request that the court dismisses any or all parts of the case because there is no legal basis for the claim.
Contact a Gainesville Personal Injury Lawyer for Help Suing a Defendant
If you find yourself in a scenario where you need to sue someone after an accident, your next step should be to find a competent attorney to help you with your case. Our legal team has over 100 years of combined experience and has won tens of millions of dollars for injured clients. Contact our personal injury attorneys at Allen Law Firm, P.A. to schedule a free consultation at (877) 255-3652.
