Defining Negligence

For the uninitiated, the field of law in which our accident law firm specializes is known as torts. This is the part of Colorado law (as well as other states) that deals with personal injury. Lawyers who specialize in torts are known as litigators. Although everyone who goes to law school winds up getting some background in criminal law as well as torts, very few lawyers practice in both.

Simply stated, tort law is about personal injuries and property loss stemming from negligence rather than criminal conduct. This is not to say that there isn’t some overlap between the civil and the criminal justice systems because sometimes, negligence can be so egregious as to be willful – and at that point, the case can move into the criminal courts. Likewise, a party who feels that they were not given justice in criminal court can always file a civil law suit against the accused. This is what happened in the O.J. Simpson case back in the mid-1990s; when the criminal court found Simpson not guilty of murder, the family of one of the victims filed suit in civil court, where Simpson was found liable for wrongful death.

How could this happen? The basic reason is that a personal injury lawyer for the plaintiff has more latitude than a criminal prosecutor because unlike guilt in a criminal case, which is determined by “reasonable doubt,” a very high standard, whereas liability is determined by a “preponderance of evidence,” a lower standard. In criminal court, the balances are tilted in favor of the defendant; in civil court, the system is more balanced.

When an accident law firm brings a case to a Colorado civil court, the litigator(s) and staff assigned to represent the plaintiff must find evidence to prove that the defendant was negligent, meaning that s/he knew, or should have known, that a dangerous situation existed and failed to take the necessary precautions to avoid an accident. For example, a driver strikes a pedestrian while using a “hands free” device to conduct a cell phone conversation. Although Colorado state law allows the use of “hands free” devices while driving, a criminal court would not consider this factor. A personal injury lawyer would argue that the driver was distracted by the conversation and was thus negligent when s/he struck the pedestrian. Drawing on research from the staff at the accident law firm, this litigator would support his/her arguments with statistics showing how driver distractions can have the same effect on judgment and reaction time as alcohol.

As you might imagine, this can get complicated, which is why it’s a good idea to have a trained lawyer representing you rather than attempting to represent yourself in a civil court action.