The law has a unique language.
You will hear many new legal terms if this is your first time in civil litigation.
Plaintiff and defendant are two such terms.
Indeed, you are either the plaintiff or the defendant in the case (and sometimes both, as will be discussed).
This article defines these terms and explains the difference between a plaintiff and a defendant in tort claims (such as car accident lawsuits based on negligence), breach of contract cases, and workers compensation matters.
Here is a hint: The person who files the lawsuit is the plaintiff. The person sued is the defendant.
As you will see, the plaintiff and the defendant have different obligations, burdens of proof, and consequences.
Read on for answers to the question: What is the difference between a plaintiff and a defendant?
Then call us at 804-251-1620 or 757-810-5614 if you have questions about your legal rights.
See why other attorneys and past clients regularly put us on the lists of Virginia’s best personal injury attorneys and traumatic brain injury (TBI) lawyers and how we can help you.
A plaintiff is a person or entity who brings a civil action (a lawsuit) against another person or entity in a court of law and seeks a remedy. Oxford Dictionary of English 1357 (3d Ed. 2010).
Yes, the plaintiff and the claimant are the same person.
Black’s Law Dictionary 311-312 (11th ed. 2019) offers several definitions of claim:
Whether you should use plaintiff or claimant depends on where you are in the legal process or the remedy you want.
For example, the person injured in an auto accident is a claimant when submitting a claim to the other driver’s insurance company for damages before suing.
Similarly, the legal system often uses claimant to describe an injured employee seeking workers compensation benefits for an occupational injury or a disabled adult seeking Social Security disability benefits.
Once the accident victim sues, they become the plaintiff.
But claimant and plaintiff are used interchangeably to describe the same person.
Indeed, England and Wales used to call the person who started a civil claim a plaintiff. But now they call that person a claimant.
Anyone can be a plaintiff in a civil action.
Browse your local court’s docket sheet. You will see that people, corporations, and government entities can be plaintiffs.
You must do two things to become the plaintiff in a case.
First, you must file a civil complaint with the proper court.
The civil complaint, which you can learn more about here, is the pleading that starts the lawsuit and tolls the statute of limitations (the deadline for bringing a civil action).
At a minimum, the complaint must allege facts to support the legal claims the plaintiff has against the person, company, or government body named in the complaint and demand equitable and legal remedies.
The person, business, or government entity named in the complaint is called the defendant. We will explain who the defendant is and what their responsibilities are later in this article.
Second, you must “serve” on the defendants a summons and a copy of the complaint.
Yes.
A lawsuit may have more than one plaintiff.
For example:
Virginia’s Multiple Claimant Litigation Act (Code Section 8.01-267.1) says, “Six or more parties may be joined initially as plaintiffs in a single action if their claims involve common issues of fact and arise out of the same transaction or occurrence or the same series of transactions or occurrences.”
Similarly, the Federal Rules of Civil Procedure permit class action lawsuits with multiple defendants, even tens of thousands.
The ongoing Roundup Lawsuit is an example of a current mass tort class action lawsuit with multiple plaintiffs.
A defendant is a person sued in a civil action or accused of a crime in a criminal proceeding.
This article focuses on defendants in civil proceedings.
Any person, business, or government entity can be sued and become the defendant in a civil action.
Generally, however, the insurance company providing automobile liability coverage to the defendant driver is not named as a defendant (because evidence of insurance is inadmissible in most cases), although they may have to pay any court judgment or car crash settlement.
Yes, a plaintiff may name two or more defendants in a lawsuit if these people were involved in the same incident or transaction.
When this happens, the defendants are called codefendants.
Usually a plaintiff has a target defendant when it brings a civil action against multiple parties. The target defendant may be the one who is most at fault or the one with the most insurance or assets to collect a judgment from.
For example:
Suppose you are a pedestrian struck by a truck owned by a large trucking company.
You would name the driver – an employee of the trucking company – and the trucking company itself as codefendants (under vicarious liability or negligent entrustment theories of liability).
But the trucking company is the target defendant because it likely has more insurance and assets than its employees who operate the vehicles.
The defendant must respond when served with the plaintiff’s complaint.
This response may include:
A plaintiff may not know the defendant’s name when they file the complaint.
In this situation, the plaintiff’s action will use a fictitious name – John Doe – for the defendant. Then the plaintiff will try to determine the defendant’s identity and substitute that person has a litigant.
The most common reason to file a John Doe lawsuit is that a plaintiff does not want the statute of limitations to expire.
John Doe lawsuits are often used in police brutality, hit-and-run, and trademark and copyright infringement cases.
A recent televised trial between two famous actors gives an example of the difference between a plaintiff and a defendant.
John C. Depp, II v. Amber Laura Heard was a trial held in Fairfax County, Virginia, in 2022.
Depp filed a complaint alleging defamation against Heard and sought $50 million in damages.
Depp, therefore, was the plaintiff.
Heard was the defendant.
In lawsuits with the trial court, the plaintiff is named first in the case caption.
The defendant is named second, on the other side of the “v.” or “vs.”
But remember, there are exceptions, which we explain in the next section.
Whether a party is a plaintiff, defendant, or some other term may change when a lawsuit is appealed to a higher court.
For example, the party named first in the case caption used by an appellate court may have been the defendant if the defendant lost at trial and filed an appeal.
On appeal, the defendant becomes the appellant or plaintiff-in-error. And the plaintiff becomes the appellee or the defendant-in-error.
Here is an example of how it works.
Jill runs a red light and crashes into Bob.
Bob suffers a back injury, torn rotator cuff, and a concussion in the car accident.
Bob files a civil action against Jill in Chesterfield County Circuit Court.
Bob is the plaintiff and Jill is the defendant.
At trial, the jury finds Jill’s negligence caused the crash and awards $250,000 to Bob.
Jill appeals. She argues that the trial court judge violated the rules of evidence by allowing certain testimony.
On appeal, Jill becomes the appellant or plaintiff-in-error. Bob becomes the appellee or defendant-in-error, even though he was the plaintiff initially.
As the one starting the lawsuit and asking a court of law to order the defendants to pay, the plaintiff has the burden of proof in civil actions.
This means it is your responsibility (if you are the plaintiff) to prove the defendant is liable for the harm you suffered and that you should get the remedy (usually an amount of money) sought.
In most negligence cases (including those arising from motor vehicle crashes), you must prove each element of the claim by a preponderance of the evidence. This means you must show it is more likely than not that the defendant’s conduct breached the duty of care owed to you and caused harm.
Generally the defendant does not have to prove or disprove any allegation to avoid liability.
But as with most things in the law, there is an exception.
The defendant has the burden of proving any affirmative defense, plea in bar, or demurrer.
The plaintiff chooses where to file the lawsuit, subject to procedural rules governing personal jurisdiction, subject matter jurisdiction, and venue.
Usually personal injury plaintiffs bring an action in state court in a judicial district known for large verdicts.
The defendant can use these same rules to try to force the removal of the lawsuit to a more defense-friendly court. For example, defendants often remove lawsuits from state court to federal court when there is diversity jurisdiction (the plaintiff and at least one defendant reside in different states) and the plaintiff seeks more than $75,000 in damages.
There are six potential outcomes when a plaintiff files a civil lawsuit:
Contact us today if someone else caused you harm and you want to recover fair compensation.
We represent the plaintiffs in personal injury lawsuits. And we will take on any defendant of any size to get what you are owed.