Basically two things happen in court -- people try to get someone else's money or the government tries to get someone's freedom. People taken to court are either at risk of losing cash or going to prison.
Most of us think that freedom is more important than money. We value time with our families, the ability to go for a walk on a nice day, or being able to make a phone call without someone else listening more than we value cash.
Here's the surprising thing about our court system -- you have more protection in the courts from having your money taken away than from having your freedom taken away.
For people who are charged with a crime in federal court, they often get a rude awakening that everything they thought about what happens in court is wrong. It's such a problem that I've created a webpage that explains what happens in a federal criminal case to people accused of a federal crime.
Here are three big benefits people being sued get more of than people facing prison time:
(1) People Being Sued Know More About the Evidence Against Them
If you're being sued, you have broad rights to find out what information the other side has. You get to depose witnesses -- put them under oath and ask them almost any question you want about the case. You get to ask the other side for any document they have that might matter to the case. The only check on what you can ask for is whether it is "reasonably calculated to lead to admissible evidence."
In a criminal case, your access to evidence before the trial is very limited. there are narrow rules about what evidence you get before, after, and during a trial. There are no depositions. You don't get to do wholesale document requests. What's worse, most federal prosecutors and federal judges say that you don't get access to certain kinds of evidence -- like evidence the government has that you didn't actually commit the crime -- if you plead guilty. Considering that more than 90 percent of everyone charged with a federal crime pleads guilty, that's a lot of people in the dark about what the government might know about their innocence.
(2) If You're Getting Sued, You Can Challenge What the Other Side's Lawyer Does
In a lawsuit, you get to complain about the lawyer's tactics on the other side. There's a rule of civil procedure about it -- Rule 11. If the other lawyer overstepped, you can complain about it in a motion to the judge; it's called a Rule 11 Motion. If the other side oversteps, you can even file a Rule 11 Motion on their Rule 11 Motion.
In a criminal case, on the other hand, there are precious few ways to challenge the government's decisions about bringing the case. If the police violated your rights you can file a motion to suppress, to be sure, but if the government decided to prosecute you for something that they shouldn't, likely your only move is to convince a jury to say you aren't guilty.
That this is a problem is easiest to see with Aaron Swartz's case. A prosecutor stretched the law to charge him in federal court. As Swartz's father recently wrote:
In my son Aaron's case, there is also ample evidence of prosecutorial misconduct and really no avenue to deal with it. If people like Ted Stevens -- a U.S. senator -- and Aaron with all his resources cannot get a fair hearing, how much worse is it for everyone else? We have a court system in the U.S. that has a lot in common with China.
(3) If You're Sued, You Can Try to Dismiss the Case Before Trial
If you're sued for money, your lawyer can -- and almost certainly will -- file a motion to dismiss the law suit or get the judge to decide it before the case goes to trial. This is because everyone recognizes that trials are incredibly expensive, risky, and, for the person facing the trial, stressful.
There's another important reason -- because lawyers stretch the law. This is completely in bounds. Lawyers are supposed to advocate for their clients. If a reasonable reading of the law is a stretch but lets a lawyer help a client, the lawyer should be able to help her client.
Your lawyer can file a motion before trial once you know all of the evidence against you saying that those facts aren't enough. In a civil case, all of the facts are figured out before trial even starts.
In a criminal case, the facts are figured out during the trial. There's not a mechanism to say, before a criminal trial, that the government just doesn't have any where near enough evidence to go to a trial, like if money is the only thing on the line. If a prosecutor is stretching the law to charge someone with something that may not be a crime, that decision can't be challenged until after a trial has already started.
This is a particularly bad problem since federal criminal laws are so plentiful and easily created. Any first-term Congressman who wants to look tough on crime can get a political boost from pushing for a new criminal law. Congress has put more than 4,000 criminal laws on the books.
As one judge has said, there are now so many criminal laws, "most Americans are criminals and don't even know it."
Look, I get it. Giving someone all of these ways to keep from going to prison would slow down the courts. It would give prosecutors more work. If you want to build the free world's largest per capital prison population, you aren't going to do it by giving people more rights.
But, as a society, maybe we should talk about whether we want more ability to fight a court case that could land us in prison than we'd have if some guy down the street is trying to shake us down for a few thousand bucks.