But then the victims’ families took O. J. to civil court, where due to the changes in rules of evidence, the Juice was squeezed dry. He was ordered to pay several million dollars in damages. He remained a free man (at the time) but he would have that debt over his head for the rest of his life.
O. J. was done in once his case went civil because the burden of proof suddenly switched. That big bloodstained burden had been resting entirely on the overloaded shoulders of the state of California, those fine civil servants who had to pile up enough evidence to prove his feet filled those stylish Bruno Maglis the night of the murders. In civil court, burden of proof was on the plaintiffs—and as the defendant, Juice had a heavier burden to prove as well. Because in civil court, the plaintiff only has to convince a judge or jury that most of the evidence proves their claim. A criminal case has to be proved beyond a reasonable doubt, and we’re talking something like 99 percent certainty there. Civil case? An easy 50 percent proof. It wasn’t hard to get that in O. J.’s civil case, obviously.
• Simplest difference between civil and criminal, which you could infer from Simpson’s long, strange trip through the California courts: civil law is all about the money, honey. Lose a civil case? No jail. Sure, that might change later if the loser of a given case is found in contempt for not obeying a court order, but let’s not get bogged down in those kinds of things. The headline here is that even after a civil court found that O. J. did it, he still went home and slept in his own bed.
• Let’s say someone is beaten up by a domestic partner. Serious, criminal stuff. Cops arrive, try to figure it out, separate everyone, and end up concluding the batterer needs to go to jail on an assault charge. A strange thing sometimes happens at this point: the victim will plead with the police to not arrest their partner. They’ll even say they don’t plan to press charges. Guess what? If the prosecutor gets a look at the case and all the evidence and decides a crime occurred, they’ll press charges anyway. In criminal law, the victim doesn’t have to cooperate. Different situation with civil cases.
Imagine waking from an appendectomy and feeling kind of achy and lumpy where your appendix used to be. You get an X-ray and lo and behold, some idiot was too busy scoping the hot nurse at his side and not your internal organs and he forgot where he put his surgical knife. Great negligence case there! But that scalpel will keep setting off metal detectors from here to Calcutta unless you find another more-focused doctor to get back in there and take it out—and your case will sit in limbo until you hire a civil attorney.
• Anyone who has been arrested has (hopefully) heard the sweet siren song, “If you cannot afford an attorney, one will be provided for you.” The Sixth Amendment, baby! It says the state is obligated to give criminal defendants the best damned defense a few hundred bucks will provide. Civil court is a different matter, because the law seems to feel like the stakes are a little lower, somehow. After all, a criminal court judge can slap you in jail, which takes just about everything from you. A civil judge can order you to pay money, allow or deny benefits like welfare, or medical disability. So, if a creditor gets tired of flooding you with notices and obnoxious phone calls and sues, you either hire a lawyer or go it alone, because the law considers the situation a little less life-or-death. Too often, as I’ve mentioned, that may end badly for you. Truth is, it might end badly for you in criminal court with the provided attorney, too, but hey, at least the odds are a little more in your favor!
• Ever see a commercial from a law firm about some kind of class-action suit? “Were you prescribed Drug X and have you suffered the following side effects?” A list of stuff like dizziness, seizures, and, I don’t know, suddenly finding yourself really into Swedish rap music from 1996 may follow. Many such commercials will contain a claim that the firm won’t get paid unless you do. That’s true, but if a criminal defender ever says he or she won’t get paid unless they win your case, they’re wrong. In civil law, a firm can work a case on the contingency they’ll win. Obviously, they rarely do this unless it is a backboard-shattering slam dunk of a case. Criminal defense attorneys can’t do that, it’s against the law.
• Another difference? Civil attorneys can work any side of a case. In a case of negligence—like that theoretical surgical scalpel my theoretical McDreamy left parked somewhere near your small intestine—both sides will end up with civil attorneys working from the same sets of rules. Criminal defense attorneys never work for anyone but the man or woman up on the dock for some alleged crime.
To put a maraschino on top of this whipped-cream-coated sundae of law talk: the O. J. case proved the difference between civil and criminal burdens of proof. Here’s why: in a criminal case, a defendant’s counsel is a little more empowered. We can’t let our clients incriminate themselves, and this can limit what the prosecution is able to present in court. In civil law, each side gets an equal bite out of the discovery apple, an equal opportunity to come away chewing on one damning half of a worm.
Now that I’ve whet your appetite for some differences in civil and criminal law—and trust me, buddy, this has just been the highlights—it’s time for the nitty-gritty: how the heck do I pick a lawyer?
I’ve worked civil and criminal cases, but tend to park my Cadillac in the criminal lot more often than not. Most attorneys try a bit of both sides before settling on one. In criminal defense, my job has been to convert illegal drug addiction into legit drug prescription. To demonstrate in front of carefully selected juries of matronly, empty-nester housewives how shark-eyed assassins were once boys who never had a proper mother’s love.
But I’ve known civil attorneys and had a taste of the practice, so what I’ll do now is give you some tips for picking a legal representative from either type of practice.
What does “bad” mean in this situation, really? What does “good” mean? It’s all subjective, relative, and another “-ive” word of your choosing (maybe not “chive” or “contraceptive”). Just like a “no trans fat” label on a bag of chips—it depends on what you’re going for.
I can tell you this, though it gives me some pain to do so: flashy, well-produced ads do not always a good lawyer make (present company excluded). They just mean someone used a big hunk of the budget to rent billboard space and maybe hire a video crew to help them get facetime in front of you, their future client.
They do other clever things as well! Online, for example—doctors, lawyers, dog-grooming places, they all get reviewed on the Internet. Hell, there are sites where college kids discuss whether their professors were cool that one time the student accidentally called them “Mom,” or the day a baggie of weed slipped from the kid’s backpack.
It’s convenient to believe that a slick-looking ad campaign or a bunch of glowing online reviews add up to a shining star pointing toward your legal savior. Not so. The reviews, like the ads, can simply be bought. There are folks who will pay $5 for someone to give their book about artistic nose hair snipping a rave review, and plenty who will take that five-spot and do it. So you better believe there are some in the legal community who hire summer interns solely to bump the firm’s three-point-five star average to a solid four. Instead of starting your attorney search with the yellow pages—that plastic-wrapped book of ads and colored paper slowly decomposing on your front porch, for you kids reading this—ask for referrals from people who’ve been in your stinky shoes.