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Defendant's Perspective

DEFENDANT PERSPECTIVEIn a civil trial, the defendant is the person who the plaintiff alleges is liable to the plaintiff for the plaintiff's damages: that is, the person who caused the plaintiff's harm. 

Defendant as Respondent

The terms "defendant" and "respondent" are often used interchangeably in civil trials. "Respondent" refers to the defendant's duty to respond to the complaint issued to him/her by the plaintiff.

In many instances, lawsuits are decided before trial, as is the case with settlement. If this is the case, the defendant and plaintiff may never meet; negotiations may be conducted and legal paperwork exchanged via mail, email, etc. Even if a case proceeds to trial, if defendant is represented by an attorney, he/she may not be required to appear in court. This is in contrast to a criminal trial, at which the defendant has the right to "confront" his/her accuser, and thus the parties are usually both present in the courtroom.

Burden of Proof
The plaintiff commonly has the BURDEN OF PROOF with respect to his/her complaint, and is responsible for persuading the judge, jury, or other decisionmaker that he/she should prevail in the lawsuit over the defendant. It is the plaintiff's role to prove that the defendant is liable, rather than the defendant's role to prove he/she is free of liability. The defendant can often sit back and wait for the plaintiff to introduce proof of liability. In some cases, after the plaintiff has rested, the defendant need only ask the judge to issue a directed verdict because the plaintiff has failed to prove all the elements of their case.

Affirmative Defenses

Occasionally, the burden of proof may "shift" to the defendant. Affirmative defenses are a defendant's arguments that although he/she was admittedly at fault for the harm alleged by the plaintiff in the lawsuit, liability should be for some reason limited or excused.
Examples of affirmative defenses include:

  • Assumption of Risk: the plaintiff took a known risk and was thereby injured
  • Duress: the defendant acted only because he/she was threatened with death or bodily injury
  • Contributory Negligence: the plaintiff contributed to his/her own harm
  • Statute of Frauds: certain agreements are legally required to be in writing and to meet certain specifications; an agreement that does not meet the legal standards may be unenforceable

Timing is critical in every lawsuit, and is an aspect that defendants must pay particularly close attention to.
First, upon receipt of a complaint from a plaintiff, there is a time frame during which the defendant must provide his/her response (or answer). It is important to be aware of what that time frame is to ensure the defendant does not wait too long and risk a finding that he/she is in DEFAULT. A default entry against a defendant means that, unless the defendant has a strong excuse, judgment in the lawsuit will be in favor of the plaintiff.

Second, when preparing a defense to a plaintiff's complaint, a defendant must be alert to any applicable STATUTE OF LIMITATIONS. If a plaintiff has waited too long to file a claim following the alleged harm, the defendant may be off the hook, even if he/she would be otherwise liable; citing a statute of limitations that has run can save a defendant a good deal of time, money, and effort.

Finally, if defendant is found liable, he/she should be cognizant of the requirements of the judgment. For example, if the defendant is required to pay money to the plaintiff in installments, those installments should be paid in a timely fashion to avoid the possibility of being held in CONTEMPT of court. If a court finds that a defendant is in contempt, it may impose sanctions, or further punishments.

Emotional Perspective

Some defendants know to expect a complaint to be filed by someone they have harmed in some way; others are taken by surprise when they receive a complaint and summons. Nobody likes to be sued and have to defend oneself, and depending on the lawsuit, a defendant may need to prepare for a judgment against him/her that could require high costs.
Defendants should also be prepared to suffer from a stigma. Those found liable for alleged damages are frequently viewed not only as "losers" in the lawsuit, but also as social losers whose actions make them reprehensible to others. Even defendants who ultimately prevail in lawsuits may be faced with some social stigma for the mere reason of being involved in a lawsuit at all.

Some defendants are able to separate themselves from the personal aspect of a lawsuit. However certain subject matter can be more difficult to deal with; for example, torts that result in financial losses are less likely to take an emotional toll than those that lead to physical harm to a plaintiff.

Defendants must be prepared for the emotional rollercoaster that accompanies a lawsuit, from initial receipt of the summons and the plaintiff's complaint to the final resolution of the case.----------------------------------------------------------------------------------
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