The “burden of proof” is the responsibility each party has during a trial to prove the claims he is making. In most tort suits, including personal injury cases, the plaintiff has the burden of proof, since he is the one claiming that he was injured by the defendant‘s actions. However, the defendant has the burden of proof on any affirmative defenses he raises. Generally speaking, the person who raises a claim in a lawsuit is responsible for proving it.
To know how to meet his burden of proof in a case, the person making the claim must know two things: what he has to prove, and how thoroughly he has to prove it. For instance, in the case of an intentional tort, the plaintiff must prove both that he was injured by the defendant and that the defendant intended his action to cause harm.
Most personal injury cases deal with negligence. To prove that a defendant is liable for negligence, the injured plaintiff must show that:
- the defendant had a duty of care toward the plaintiff, or a responsibility to act in a certain way;
- the defendant breached that duty by acting with less care than his duty required;
- the defendant’s negligence caused the plaintiff’s injury; and
- the injury can be set right by the defendant paying damages to the plaintiff.
In contrast, in a strict liability case, the plaintiff must only prove that the defendant’s actions caused his injury and that his injury entitles him to compensation.
Similarly, when a defendant raises an affirmative defense, she has the burden of proof on her claim that a defense exists. For instance, if the defendant claims that the plaintiff assumed the risk for his injuries, she must prove to the court that the plaintiff understood the risk that he might suffer his injury, but decided to proceed anyway.
In addition, the person with the burden of proof must consider how thoroughly he or she must prove the claim to the court. In civil law cases like personal injury lawsuits, the burden of proof on the plaintiff is usually to prove the case by a preponderance of the evidence. This means the plaintiff must demonstrate that it was “more likely than not” the defendant is liable for his injuries. One way to think of the preponderance of the evidence is to measure it in terms of percentages: in order to meet this burden of proof, the person making the claim must show his claim is at least 51 percent likely to be true.
Some tort cases require a higher burden of proof. For instance, many states require that fraud be proven by clear and convincing evidence. This burden of proof is higher than a preponderance of the evidence, but lower than “beyond a reasonable doubt,” which is the burden of proof required in criminal cases. Usually, proving something by clear and convincing evidence means proving that the claim is substantially likely to be true, even if it is not quite certain.
The burden of proof is often confused with two other common concepts in personal injury cases. One is the evidentiary burden, or the responsibility of providing enough evidence to raise an issue during the trial. The party who wants to bring up an issue during the trial may only do so if he or she provides enough evidence to support the issue. The burden of proof is also confused with the burden of going forward, which simply describes whose “turn” it is during the trial.