Plaintiff vs defendant: what's the difference?

Definitions

Plaintiff

The party who starts a civil lawsuit by filing a complaint with the court. The plaintiff claims the defendant caused them a legal injury, such as an unpaid invoice, a breach of contract or a personal injury, and asks for a remedy: damages, an injunction or a declaration of their rights. In England and Wales the same party is called the claimant, and in Scotland the pursuer.

Defendant

The party against whom a lawsuit is filed or a criminal charge is brought. A civil defendant must respond to the complaint, by admitting, denying or raising defenses, or risk a default judgment. A criminal defendant is the accused, and is presumed innocent until the prosecution proves guilt. In Scotland’s civil courts the defendant is the defender.

Plaintiff vs. defendant at a glance

Plaintiffs and defendants in civil vs. criminal cases

The two words describe civil litigation. Criminal cases have a defendant but no plaintiff.

Civil cases are disputes between private parties, or between a private party and the government acting like one. Contract disputes, personal injury claims, landlord and tenant cases, IP infringement and employment claims are all civil. The plaintiff decides whether to sue, can settle at any time and receives the award if they win. A civil defendant who loses pays damages or is ordered to do or stop doing something. Nobody goes to prison for losing a civil case.

Criminal cases are brought by the government on behalf of society. The prosecutor (a district attorney, a state attorney general or a US Attorney) decides whether to charge, and the case is titled in the name of the sovereign:

• United States v. Smith in federal court
• State v. Smith in most states
• People v. Smith in states such as California, New York, Illinois and Michigan
• Commonwealth v. Smith in Massachusetts, Pennsylvania, Virginia and Kentucky
• R v. Smith in England and Wales, where R stands for Rex or Regina, the Crown

The victim of a crime is not a party to the criminal case. They are a witness, and they can usually still file a separate civil lawsuit as a plaintiff against the same defendant. That is why one event can produce two cases: a criminal prosecution for the assault and a civil claim for the medical bills.

Why England and Wales say “claimant”

The Civil Procedure Rules, which came into force in England and Wales on 26 April 1999 following Lord Woolf’s Access to Justice reforms, replaced “plaintiff” with claimant as part of a move to plain English. Older English cases still say plaintiff. The US, Canada, Australia, India and most other common-law systems kept the old word. Arbitration uses its own pair: claimant and respondent.

Who has to prove what: burden and standard of proof

The party who makes a claim has to prove it. For the plaintiff that means proving every element of the claim. The defendant does not have to prove anything to win, but carries the burden on any affirmative defense they raise, such as the statute of limitations, payment or fraud, and on any counterclaim.

How much proof is enough depends on the type of case:

The gap explains outcomes that look contradictory. A defendant can be acquitted in a criminal trial and still lose a civil case over the same facts, because the civil plaintiff only has to tip the scales.

How case names work

A case name lists the parties, plaintiff first, separated by “v.” for versus. In Smith v. Jones, Smith is the plaintiff and Jones is the defendant. With several parties, the citation usually uses the first named party on each side, which is where “et al.” comes from.

On appeal, the labels change:

• Appellant and appellee. The party who lost and appeals is the appellant, the other side is the appellee (or respondent in some state courts). Federal courts of appeals usually keep the trial court order of names.
• Petitioner and respondent. At the US Supreme Court, the party asking for review is the petitioner and is normally named first, so the order can flip. Ernesto Miranda was the defendant in Arizona’s criminal case against him, and the petitioner in Miranda v. Arizona (1966).

Some cases have no defendant at all. Probate, adoption and bankruptcy matters are often titled In re [name], “in the matter of”.

When the roles switch: counterclaims and third parties

A defendant does not have to stay on the defensive. Three procedures add new claims and new labels to the same lawsuit:

• Counterclaim. The defendant sues the plaintiff back in the same case. The defendant becomes the counter-plaintiff (or counterclaimant) and the plaintiff becomes the counter-defendant. Under Federal Rule of Civil Procedure 13, a counterclaim that arises from the same transaction is compulsory: if the defendant does not raise it now, it is generally lost.
• Crossclaim. One defendant sues a co-defendant, for example a contractor and its subcontractor who are both sued by a property owner.
• Third-party claim (impleader). The defendant brings in someone new who they say is liable for some or all of the damages. The defendant becomes the third-party plaintiff and the new party is the third-party defendant (Federal Rule of Civil Procedure 14).

Related terms

Example: a contract dispute from start to finish

Most business litigation is about contracts, so here is how the roles play out in a typical one.

1. The dispute. A software vendor and a retailer sign a three-year subscription agreement. The retailer stops paying after month 14, saying the platform repeatedly broke the uptime commitment.
2. The complaint. The vendor sues for the unpaid fees plus interest. The vendor is the plaintiff and the retailer is the defendant. The case is Vendor Inc. v. Retailer LLC.
3. The answer and counterclaim. In federal court, the retailer has 21 days after being served to respond. It denies owing the fees and files a counterclaim for breach of contract, claiming the outages cost it sales. The retailer is now also a counter-plaintiff.
4. The proof. Each side must prove its own claim by a preponderance of the evidence. The vendor relies on the signed agreement and the invoices. The retailer relies on the service-level terms and outage logs. Whoever can produce the final, signed version of the contract, every amendment and a record of who agreed to what has a much easier case.
5. The outcome. Most cases like this settle. If it goes to trial, the court can award the vendor its fees, award the retailer damages, or offset one against the other. Who pays the lawyers depends on the rules: in the US each side usually pays its own fees unless a statute or the contract says otherwise, while in England the loser generally pays a large part of the winner’s costs.

The contract decides more of this than the courtroom does. A dispute resolution clause can send the case to mediation or arbitration, where the parties become claimant and respondent, and a governing law and jurisdiction clause decides which court hears it. Before signing, it is worth checking the contract is enforceable at all. Keeping signed agreements in a contract repository with an audit trail, as fynk does, means the evidence for step 4 exists before anyone needs it.

FAQ

• What is the difference between a plaintiff and a defendant?

  The plaintiff is the party who files a lawsuit and asks the court for a remedy. The defendant is the party being sued, or in a criminal case, the person charged with a crime. The plaintiff starts the case and carries the burden of proof on its claims; the defendant responds.

• Who comes first in a case name, plaintiff or defendant?

  The plaintiff. In Smith v. Jones, Smith sued Jones. In criminal cases the government is named first, as in State v. Smith. At the US Supreme Court the petitioner is named first, so the order can differ from the trial court.

• Does plaintiff mean victim?

  Not exactly. A plaintiff claims to have been harmed, but has not proven it yet. In criminal cases the victim is not a party at all: the government prosecutes, and the victim is a witness who may file a separate civil lawsuit as plaintiff.

• Is there a plaintiff in a criminal case?

  No. A criminal case is brought by the prosecution on behalf of the state, the people, the commonwealth or the United States. The accused is the defendant.

• Can a defendant become a plaintiff?

  Yes. By filing a counterclaim, the defendant becomes a counter-plaintiff and the original plaintiff becomes a counter-defendant in the same lawsuit. A defendant can also bring in a third party, becoming a third-party plaintiff.

• Who has the burden of proof?

  The plaintiff, on every element of its claims. In civil cases the standard is usually a preponderance of the evidence, meaning more likely than not. In criminal cases the prosecution must prove guilt beyond a reasonable doubt. The defendant carries the burden only on affirmative defenses and counterclaims.

• Why do English courts say claimant instead of plaintiff?

  The Civil Procedure Rules, in force in England and Wales since 26 April 1999, replaced plaintiff with claimant to make court language plainer. The US and most other common-law countries still use plaintiff.

• What is the difference between a petitioner and a plaintiff?

  Both start a case. A plaintiff files a complaint in an ordinary lawsuit; a petitioner files a petition, which is used in divorces, many probate and family matters, and when asking the US Supreme Court to hear an appeal. The other side is then the respondent.

• What happens if the defendant does not respond?

  The plaintiff can ask the court for a default judgment, which gives the plaintiff what it asked for without a trial. In US federal court the defendant normally has 21 days after service to answer, or 60 days if it agreed to waive formal service.