I’ve lost track of how many times the State’s Attorney’s office receives inquiries or referrals from citizens for legal issues that it cannot accommodate. A few times a week wouldn’t be unusual. From family law issues having to do with divorce, child custody or property disputes to landlord tenant disputes to business and transaction disputes, the response the people receive from my office is usually that they need to seek legal advice from a private attorney as their particular legal problem is of a civil nature rather than a criminal one; that the State’s Attorney’s office only handles criminal cases. A blank stare or an abrupt departure with comments of “then what are you paid to do?” or that “nobody wants to help” or “I haven’t got money for a lawyer” is typical.

While having to try to explain the nature of somebody’s legal problem (civil v. criminal) without giving legal advice and then having to abstain from further comment is difficult for a lawyer to do. However, it is a must as legal liability may attach to erroneous advice given gratuitously without a thorough understanding of the actual facts of a particular problem. The State’s Attorney’s office is not charged or funded to represent the individual citizen in a private legal matter. This seems to be a commonly misunderstood concept.

A criminal case generally has to do with the potential deprivation of one’s liberty, the restriction of one’s freedom. It is the state charging and attempting to prove an intentional act prohibited by the state’s criminal code. A complaint is made to a law enforcement agency, an arrest is made and information is conveyed by way of a report to the state’s attorney’s office. As stated in the introduction to a popular television show called Law and Order, “In the Criminal Justice System the people are represented by two separate, yet equally important groups, the police who investigate crime and the District Attorneys (State’s Attorneys in Illinois) who prosecute the offenders.” The State is the plaintiff, the party filing and prosecuting the case. The defendant is the one alleged to have committed an illegal act. The burden of proof for the state at trial is beyond a reasonable doubt. That’s a high degree of certainty. (Greater than 90 percent certain?)

A civil case is typically about the access to, damage to or possession of property, infringement on certain rights, business service or opportunity. An aggrieved party files a lawsuit in the circuit court and serves a summons and copy of the complaint on the allegedly liable party. There are many variations or subtle differences to the civil case but the usual end result is that money or something of value is exchanged between the parties involved in the successful lawsuit. Typically the plaintiff and the defendant are private parties. The burden of proof for the plaintiff is a preponderance of the evidence, more probably true than not. That’s a fair degree of probability. (Greater than 50 percent certain)

The best example that comes to mind to highlight the differences between criminal guilt and civil liability, the varying burdens of proof and their consequences are the OJ Simpson cases. Nearly twenty years ago the criminal trial of NFL Hall of Fame running back Orenthal James Simpson for the murders of his ex wife, Nicole Brown Simpson and Ronald Goldman ended in an acquittal, a jury finding that the defendant was not guilty of the crimes charged. He regained his freedom after an infamous Bronco ride that resulted in his arrest. In other words the State of California failed to prove its case against OJ Simpson beyond a reasonable doubt. However, in 1997 the representatives of Ronald Goldman and Nicole Brown Simpson were able to prove to a civil jury, by a preponderance of the evidence, that Simpson was liable for the deaths of their loved ones. The jury found that the plaintiffs’ case against the defendant was more probable than not and awarded the plaintiffs 40 million dollars, an award that is still being enforced against defendant Simpson to this day.

So the next time you hear the question, “your money or your life?” Don’t think of a bad gangster movie line, think of the difference between a civil case and a criminal one.


Any opinions expressed in this article are solely those of the author. Topics discussed relate to legal matters in the public arena and legal questions that come up in conversation with Edgar County residents. The author has been a lawyer for the past 22 years in Edgar County. He is currently the Edgar County State’s Attorney responsible for criminal prosecutions as well as representing Edgar County, elected county officials and department heads.

2017-03-13T14:48:36+00:00 March 3rd, 2015|Categories: From the Courthouse|Tags: , , , , |