Why You Need a Lawyer to Represent You in Your Assault/Battery Civil Lawsuit Claim
By David Carnes, Staff Writer
An assault is a threatening intentional act by someone that puts you in apprehension of immediate physical harm – taking a swing at you, for example, or pointing a gun at you. A battery is a completed assault – actually punching you, for example, or actually shooting you. These acts are not only criminal offenses – you can sue the perpetrator for damages even if he is acquitted in criminal court.
“Preponderance of Evidence” vs. “Beyond a Reasonable Doubt”
The reason why you can still win a civil lawsuit against a perpetrator even if he was acquitted in civil court is because of the difference between the standard of proof in a criminal case and the burden of proof in a civil lawsuit. In a criminal prosecution, the prosecutor must prove the defendant’s guilt “beyond a reasonable doubt”. Although there is no certain number attached to this, if there were, it might be somewhere around 95 to 99 percent certain. In a civil case, however, you need only prove the defendant’s liability by a “preponderance of evidence” standard – more likely than not, or 51 percent likely. A good lawyer will know how to skillfully exploit this difference.
Most personal injury claims are settled at the negotiating table rather than in court, and a skilled personal injury attorney will know dozens of tactics that are useful at the negotiating table. If you were assaulted by a waiter in a restaurant, for example, a good personal injury lawyer might first assert your claim at the settlement table and then threaten to sue if your demands are not met. The restaurant might end up agreeing to pay out much more than they otherwise would have just to avoid the bad publicity of a lawsuit.
In civil lawsuits based on negligence (such as a car accident caused by a careless driver), your damages are generally limited to your losses – medical expenses, lost earnings, pain and suffering and other losses that you actually suffered. Punitive damages, which are designed to punish the defendant rather than compensate for losses, are generally unavailable.
If the defendant’s conduct was intentional, however, such as in an assault and battery case, a court is more likely to award punitive damages (and a defendant is more likely to agree to pay you more in an out-of-court settlement). In many states, the defendant’s conduct must be outrageous in order to justify punitive damages.
A waiter who punches a customer for leaving a small tip, or a doctor who molests a patient during a medical examination, are examples of outrageous behavior that might justify punitive damages (there are no guarantees, however). A good lawyer will know how to press for punitive damages, since punitive damages often far exceed compensatory damages.
Locating Wealthy Defendants
Winning a lawsuit or negotiating a settlement agreement won’t do you any good if the defendant can’t afford to pay your claim. Additionally, many people are not insured against assault and battery claims as they would be for, say, an auto accident caused by negligence. For this reason you may need to find a wealthy defendant to sue. If you were beaten up in a nightclub, for example, a good personal injury lawyer might investigate the nightclub and join it as a defendant if the bartender continued to serve the defendant alcohol after he was obviously intoxicated and belligerent.
If you have been a victim of an assault and battery, our personal injury lawyer search function can help you locate an assault and battery lawyer near you.