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  • Party and Non-Party Depositions in Civil Lawsuits
    Once a lawsuit is filed to recover damages for a personal injury, breach of contract, or other cause of action, the case will usually proceed through several phases. The first phase of a lawsuit usually entails the preparation and... Read more.
  • Experts are Important to Proving Many Civil Cases
    Authorities suggest that “lay” witnesses may testify to conclusions drawn from their own observations, while an “expert” expresses an opinion based on special knowledge, skill, experience, training, or education.... Read more.
  • Traffic Accidents and Government Liability
    Governments and government agencies are potentially liable for accidents caused, in whole or in part, by defects in highway design and maintenance. Such liability is heavily dependent on local law and the extent to which the doctrine of... Read more.
  • An Overview of Structured Settlements
    There are numerous legal situations in which a person may receive a large sum of money through a court award or settlement. Often arising as compensation for personal injuries or other acts, most such payouts are reduced due to some or... Read more.
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Personal Injury and Civil Claims and the Burden of Proof

Crimes are wrongful acts against society for which punishment may be imposed. Where an individual is injured through the wrongful action (“tort”) of another, the law may also give the injured party the right to file a civil lawsuit to recover damages. The same wrongdoing may constitute both a crime and a tort, and subject the wrongdoer to both criminal and civil liability.

What must be established or proven in a criminal or civil case in order to win a conviction or judgment (the “standard of proof”) usually differs, however. Criminal actions are seen as involving more serious penalties, therefore the law requires a distinctly higher degree of proof for conviction; generally proof of guilt “beyond a reasonable doubt,” i.e., the jurors or judge must be convinced beyond a reasonable doubt, of the defendant’s guilt. Civil cases usually require a lesser burden: “preponderance of the evidence” or, in some cases, “clear and convincing evidence.”

It is thus possible for seemingly conflicting results in a criminal versus a civil action arising out of the same facts and circumstances. A notorious recent example of this was that of a well-known sports figure accused of murdering his former wife and her acquaintance. The criminal prosecution resulted in an acquittal, whereas a civil action brought by the members of the deceased’s families found the man civilly liable for damages arising from the murders.

Preponderance of the Evidence

The standard of proof applied in most civil cases is a preponderance of the evidence. What exactly this means in practice is not crystal clear, and may vary between jurisdictions and even courts within the same jurisdiction. The parties to a civil lawsuit, such as a personal injury suit, must prove their allegations, backed up by facts, in order to prevail. Many civil personal injury cases are based on negligence, which means that the injured party may have to prove that:

  • The person causing the injury (defendant) owed a duty of care to the injured (plaintiff).
  • That duty was beached by the defendant.
  • The defendant’s breach of duty caused the injury to the plaintiff.
  • The plaintiff suffered injuries.

These are sometimes referred to as the “elements” of a case. The plaintiff has the burden of presenting credible evidence, e.g., documents, witnesses, and/or expert testimony, to show that each of these elements existed. The defendant usually also presents evidence to defeat the plaintiff’s claim. The trier of fact, either a jury or the judge, is then supposed to fairly and impartially weigh the evidence and find in favor of one side or the other based on which presented a preponderance of the evidence.

Preponderance of the evidence is usually defined as evidence that has greater weight or is more convincing in comparison to the evidence introduced by the other side. It means that the majority of the evidence favors one side or the other or, as described by other courts and authorities, enough evidence has been produced by one side to create a belief that its version of the story is more likely true than not. It is sometimes called the “51% of evidence” rule: whichever side convinces the judge or jury by 51% of the evidence will prevail.

Evaluating the Evidence

Attempts to assign mathematical certainty to a subjective process may have questionable value, but it highlights that the trier of fact only has to be more convinced by one side’s evidence, not overwhelmed. Some authority likens the process to putting each side’s evidence on a scale. If it tilts ever so slightly in one side’s favor, that party will win, but if equally balanced, the plaintiff loses.

One court in its instructions to juries asserts that the decision depends on the quality, not the quantity, of the evidence. Another court instructs juries to take into consideration factors such as the following is assessing the credibility of witnesses:

  • Whether the witness has an interest in the outcome of the case.
  • The reasonableness and believability of the witness’s testimony.
  • Contradictions or inconsistencies (or changes from a deposition) in the testimony.
  • The witness’s demeanor, candor, and willingness to answer the questions.

The trier of facts is the one that determines the weight, effect, and value of any evidence and the credibility of any witnesses. All evidence on a fact or issue should be considered.

Clear and Convincing Evidence

The clear and convincing standard is perhaps harder to define. It lies between the beyond a reasonable doubt standard in criminal cases and the “more likely than not” evaluation of preponderance of the evidence. While most civil cases require only a preponderance of the evidence, the clear and convincing standard has been applied in cases where there is a potential loss of important interests and, in some states, where the alleged tort is also a crime. The rationale in such jurisdictions is that, to recover, the plaintiff must prove the crime took place and cannot establish the existence of the crime by a lesser standard of proof.

The U.S. Supreme Court has stated that preponderance of the evidence is all that is required in most civil cases, unless “particularly important individual interests are at stake.” The higher standard has been applied in cases involving fraud or bad faith conduct. Much to the chagrin of the insurance industry, a 2003 decision by an Arizona court of appeal held that an insurance company claiming that fraud by the insured party was sufficient to void the policy and relieve the insurance company of its payment obligation had to be proven by clear and convincing evidence.

A California court of appeal case, however, held that an insurance company suing physicians under a statute for fraud, arising out of over-billing, could prove its case by a preponderance of the evidence as dictated by California law. The accused doctors argued that beyond a reasonable doubt or at least clear and convincing evidence standards should apply.


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