What’s the Difference Between Criminal and Civil Cases?

Steven Kluender

A lot of people believe that all litigation looks essentially the same – but that isn’t even close to true.  Examples of civil cases include claims against insurance companies, product manufacturers and personal injury cases.  They are very much different than criminal cases.  Other than both types of cases being tried in the same courthouse, there are far more differences than there are similarities.

Burden of Proof

In a criminal case, the State has the burden of proving guilt beyond a reasonable doubt.  That is an incredibly high burden to meet, as it should be.  If convicted, a person can be sentenced to spend time in jail or prison.  In civil cases, no one is in danger of a fine or prison sentence.  The burden of proof is significantly less than a criminal case – simply a reasonable certainty by the greater weight of credible evidence.  That can be thought of in terms of a scale.  As the trial progresses, each side places evidence on his or her side of the scale.  If the scale tips ever so much in favor of the party with the burden of proof, that party prevails.


Another difference between civil and criminal cases is that most criminal conduct requires a level of intent.  Sometimes there is a confession admitting intent to commit a crime.  In the absence of a confession, circumstantial evidence can be used to prove intent.  Take a bank robbery, for example.  Circumstantial evidence may be found at the alleged criminal’s home – a blueprint of the bank and a ski mask.  Those can be used as circumstantial evidence of intent to rob a bank.

In civil cases, the issue isn’t one of innocence or guilt, so intent is not the focus.  Instead, the focus is on negligence, or negligent conduct.  Negligence doesn’t require intent, or the intent to cause harm.  Rather, the issue is whether or not reasonable care was exercised under the circumstances.  In fact, the very definition of negligence is the failure to exercise reasonable care.  Negligent conduct occurs all around us.  Driving into an intersection without looking for oncoming traffic is negligence.  Arguably even more dangerous, driving while texting is negligence.  Punitive damages are awarded when there is conduct which may be so negligent that it evidences a willful or conscious disregard for the rights of others.  Drunk driving is an example.  That conduct arguably evidences a willful or conscious disregard for the rights of others and could expose the drunk driver to both compensatory and punitive damages.


There are popular misconceptions about how damages are awarded in a civil case.  Take a personal injury case, which is known as a tort case.   In order to collect damages, an injured plaintiff must prove “duty, breach, cause and harm”.  Must prove that the person who caused the injury owed you a duty of care, that the other person breached their duty of care, that the other person’s breach of their duty of care to you caused your injury and that you actually sustained damages, such as medical bills, wage loss and pain and suffering.

Causation and Liability

The issue of causation can be tricky.  You go out to dinner and have a few drinks and decide to drive yourself home.  You bring your vehicle to a safe and legal stop at a red light.  While stopped for the red light, you are rear-ended by another vehicle.  The driver of the other vehicle had not been drinking.  He just wasn’t paying attention.  So, just because you may have been drinking and you have a blood alcohol concentration above the legal limit, do you have any “causal” negligence for this collision?  Many people say “yes”, thinking that they have some negligence just for being involved in an accident.  There is the popular notion that you’re 10% negligent just for being there.  That’s simply not true.  In this situation, you don’t have any causal negligence. You were legally stopped for the red light.  Even though you were intoxicated, your intoxication was not a “cause” of the collision.  The collision was caused by the other driver’s failure to stop.  And the other driver bears full responsibility for causing the collision.

In most accidents, the issue of contributory negligence does come into play.  The way the law works in Wisconsin, if your negligence contributed in any way to cause the collision, then any damages awarded to you must be reduced by the percentage of your contributory negligence.  Let’s say a jury assesses $10,000 in damages, and you are found to be 20% contributorily negligent, your recovery will be reduced by 20% and you would receive $8,000.  If a jury determines that your contributory negligence is greater than 50%, in other words, your negligence was greater than anyone else’s negligence, then you’re barred from recovery.

There are some situations where liability is strictly imposed, and the concept of contributory negligence doesn’t come into play.  In those special situations involving strict liability, there’s no need to prove a duty and a breach of that duty.  Most of the Wisconsin statutes imposing strict liability involve owners of animals.  For example, a dog owner has strict liability if their dog causes an injury to a person or livestock.  And if there’s evidence that the dog had previously caused injury, double damages can be awarded.  Owners of farm animals have strict liability if their animal runs at large and causes damages.  There is a Wisconsin statute which imposes strict liability for damages caused by a stallion over one year old; a bull over 6 months old; a boar; a ram; or a billy goat over 4 months old.  When those animals are involved, strict liability exists even if the animal’s escape wasn’t due to any negligence on the part of the keeper.  If your case does not involve a stallion over one year old; a bull over 6 months old; a boar; a ram; or a billy goat over 4 months old, liability will exist only if the owner or keeper “knowingly permits” the animal to run at large.