Darren Wilson may not be facing criminal prosecution over the shooting death of Michael Brown, but the teenager’s family may be considering pursuing legal damages in a civil suit.

If they do decide to go that route, the family’s first option would be to file suit against Wilson or the Ferguson police department or both for wrongful death in a state court. If they did that, the case would most likely be heard in nearby Clayton, Missouri, in the same courthouse where the grand jury that declined to indict Wilson sat.

The other option is to sue in federal court, for what is known as a “1983” violation (named for its place in federal law, Title 42 Section 1983 of the US code, not the year), which means a deprivation of civil rights. This would be filed in the US district court for the eastern district of Missouri, in St Louis.

While in federal court for the 1983 violation, they could at the same time assert the state law case of wrongful death. Importantly, a 1983 suit also contains a variety of provisions for shifting the burden of legal fees; if the plaintiff wins a 1983 case, the defendant has to pay all the lawyers’ fees and expenses, on top of any damages awarded.

“My guess is the family will go to federal court, both because of the fee-shifting rule and also because of a potentially better jury pool,” said Ben Trachtenberg, a professor of law at the University of Missouri. The state court jury pool would draw from St Louis County, which might be seen as more predisposed to support Wilson, while the federal jury would come from a wider geographical area.

“The thing to be proven boils down to whether Wilson acted wrongfully when he shot and killed Michael Brown,” Trachtenberg said. “Was it an unlawful shooting, in which case he must pay, or was it justifiable as self-defence?”

“Whoever the jury thinks is more likely correct is supposed to prevail.”

The family may opt to sue Wilson personally, or the Ferguson police department as a whole, or both at the same time. The former is the most likely to succeed, because to win against the department there would need to be proof that a departmental policy or practice caused Brown’s death. But there is nothing to stop them pursuing both simultaneously.

The potential payouts are large, too; awards in wrongful death suits are usually in the hundreds of thousands, and can run to millions of dollars. But whether Wilson is sued in his personal capacity or the family choose to sue the police (or, most likely, both) the damages will be paid for by the city of Ferguson, according to John Ammann, a professor of law at Saint Louis University.

“I’ve never seen it happen where a city hangs its officer out to dry,” he said. “That would be a recruiting problem, if the city was telling its officers, ‘We’re not going to back you up if you get sued.’ A terrible recruiting problem.”

If the family sues Wilson, the onus will be on their lawyers to prove that wrongful action – at least negligence – led to Brown’s death. But the burden of proof is considerably lower than in a criminal trial, in which the prosecution has to prove its case beyond any reasonable doubt.

That is not the case with a civil suit. The standard is “preponderance of the evidence”, the balance of probabilities which essentially means just “more likely than not”. It is sometimes described as 50.01%.

Another benefit of a civil suit is that Wilson himself could be compelled to testify.

Trachtenberg said that the lack of a grand jury indictment against Wilson doesn’t necessarily affect the Brown family’s chances of winning a civil suit. “Certainly, if you get a criminal conviction then a civil suit is child’s play – all the jury would have to do is calculate damages,” he said. “[But] a mere indictment might not have been helpful.”

“The question is: was Wilson in fear of his life? Did he act self-defence? Police officers are allowed to use lethal force if they believe themselves or others to be in danger,” said Ammann.

“It boils down to a question of fact,” he said. “What the jury decides is: was the use of force necessary in this situation for a police officer? Ultimately, the jury is the finder of fact.”