Parties to Litigation

Cite this article as: Jason Mance Gordon, "Parties to Litigation," in The Business Professor, updated January 6, 2015, last accessed April 8, 2020, https://thebusinessprofessor.com/knowledge-base/parties-litigation/.
Video Thumbnail
Parties to Civil Trial
This video explains who are the individuals or parties involved in a civil trial or civil litigation.

Next Article: Standing to Sue

Return to: CIVIL LITIGATION

Who are the “parties” to a lawsuit?

A lawsuit involves (or may involve) the following parties:

Plaintiff – The plaintiff is the party (individual or business) who files the action claiming that she has suffered a wrong at the hands of the defendant. Basically, the plaintiff is the individual suing or bringing a civil action against someone else.

Discussion: Compare the plaintiff in a civil case to the prosecutor in a criminal case. Note: In criminal law, there is no plaintiff. The State (represented by the district attorney, a prosecutor) brings charges against a criminal defendant.

Discussion Input

  • A plaintiff in a civil suit is the one who has commenced a suit, the person brings a matter where he or she has suffered personal damage. On the other hand the prosecutor represents the state in the matter. The prosecutor is in charge the case where one is being accused of having broken the law of the jurisdiction. In a civil case, the burden of proof is a balance of probability (“preponderance of the greater weight of evidence” or “clear and convincing evidence”) whereas in criminal case the prosecutor has to prove the violation of law “beyond reasonable doubt” so as to get a conviction for the defendant.

Defendant – The defendant is the party being sued in a civil action. More specifically, a defendant is a party named by the plaintiff in the formal complaint filed with the court. Often times, the plaintiff will name multiple defendants. In some cases, each defendant’s conduct may subject her to potential liability independently of other defendants. In other cases, the collective actions of multiple individuals may subject them to liability collectively.

Discussion: Compare the defendant in a civil case to the defendant in a criminal case. Note, in criminal law, the person being prosecuted is also called the defendant.

Discussion Input

  • The defendant in a civil case faces a potential judgment of liability. In criminal law, the defendant faces the potential for incarceration or criminal fine. For this reason the burden of proof in a criminal case is far higher than the burden of proof in a civil action.

Counterclaim – A counterclaim is a claim by a named defendant against the plaintiff. The defendant alleges that the plaintiff is responsible for some loss or harm she has suffered. A counterclaim by the defendant against the plaintiff does not have to be related in any way to the claims alleged by the plaintiff against the defendant. This all happens within the same court case. In this situation, the defendant or “counter-plaintiff” is the one bringing the counterclaim against the original plaintiff or “counter-defendant”.

Discussion: What do you think is the benefit for the defendant of allowing him or her to make any claims back against the plaintiff in the legal action? Are there any advantages to the original plaintiff?

Discussion Input

  • One benefit of a counterclaim to the defendant is that he or she may reduce the extent of damages if she loses on the original claim. That is, it may lead to a set off and thus disposing of the suit against the defendant. The original plaintiff could be advantaged by disposing of all of the claims between eh parties at once. It can lead to a reputational advantage for the plaintiff. If the defendant sues the plaintiff in a separate action, the later jury may not be exposed to the conduct for which the plaintiff originally sued the defendant. If this information is damning, it would help the original plaintiff in defending against the defendant’s counterclaim.

Third-party Defendants – A third-party defendant is a party who is not initially named as a defendant in the plaintiff’s complaint but is added to the case by a defendant. Basically, a defendant makes a claim against a third party alleging that she should be brought into the litigation as a co-defendant.

Discussion: Why do you think that the rules of court procedure allow a defendant to add co-defendants to the lawsuit?

Discussion Input

  • It may be that the original plaintiff has no knowledge of the third-party defendant’s involvement. By bringing in the third-party defendant, the defendant is potentially displacing some of the blame or liability. The rules of procedure seek to facilitate the orderly disposition of disputes between parties. Allowing for the inclusion of relevant third parties in this manner facilitates that goal.

Practice Question: David decides to sue Mary for destroying his lawn by pouring plant killer in a pattern spelling an offensive word. Mary was present at the time, but it was actually Mark who poured the chemical on David’s lawn. Mary was involved in the incident because she was angry at David for backing out of his agreement to sell her his car. What options exist for Mary in this situation?

Proposed Answer

  • First, she can enjoin Mark in the case if she so chooses. This could shift liability from her and on to Mark as the perpetrator of the tort. At a minimum it could lead to shared liability. Also, she may bring a counterclaim against David for breach of contract to sell the car.

Academic Research

Relis, Tamara, Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs and Gendered Parties (February 24, 2009). PERCEPTIONS IN LITIGATION AND MEDIATION: LAWYERS, DEFENDANTS, PLAINTIFFS, AND GENDERED PARTIES, Cambridge University Press, New York, 2009. Available at SSRN: https://ssrn.com/abstract=1348542

Was this article helpful?