> In a civil case the plaintiff holds the advantage having gotten the judge's > ear FIRST... and the burden of proof usually lands the defendant(s). Even > in Family Court. > > In criminal court my understanding is that the state ties a hand behind > it's back because it already *has* too great an advantage, hence the need > to require proof of guilt. > > So, in a civil case, the plaintiff starts out holding the high ground.
Following Lord Wolff's reforms, the word "complainant" is now used in the UK rather than "plaintiff". In an English criminal case, the burden of proof is "beyond reasonable doubt" and the prosecution has to prove guilt. The defendant does not have to prove innocence but obviously can shoot down some or all of the prosecution's case. In a civil action, it's a "balance of probabilities" and it's much more two-sided, but the complainant still has to prove a case. What surprised me was the thoroughness of the "discovery" process. It took over a year in the case I was involved in. The Queen's Bench Division of the High Court does not like surprises, and you have to reveal everything you plan to depend on in your case. The opposition gets to see it too. Then you have to define what damages you expect, and the defendants can choose to pay a sum into court. If you refuse their offer and go to trial, you face a "litigation risk". If what you are awarded is more than was paid in, the defendant pays all costs. If what you are awarded is less than was paid in, you pay the costs. In the Godfrey case the action was for GBP15,000 - about $25,000. One of Demon's tactical mistakes was paying in a derisory sum - ISTR GBP2,500? Godfrey won his case implicitly because Demon settled out of court - which meant that Demon paid the legal costs - around a quarter of a million. SCO is really a long way out on a shaky limb - betting the company doesn't begin to describe it. I don't think there's a real issue for SCO users, since their installed base is about the only asset they have apart from the disputed IP and it will be sold off by the creditors to achieve the best return. Probably to Novell. Perhaps even before the action starts. -- Phil Payne http://www.isham-research.com +44 7785 302 803
