During the majority of civil trials, a plaintiff has the burden to prove the case by a preponderance of the evidence. This means that the jury will need to be convinced, based on all of the evidence, that there is a greater than 50% chance that defendant caused the harm alleged in the lawsuit. If the plaintiff fails to meet this burden, the defendant will win and not be held liable.

At trial, the defendant can request that the judge enter a directed verdict if the defendant believes that plaintiff did not prove their case by a preponderance of the evidence. A party can ask for a directed verdict against plaintiff if they believe that the evidence shows that no reasonable jury could conclude that defendant was liable. However, a lot of the time judges will deny this request and let the jury make that determination.

A small percentage of civil cases will have the “clear and convincing evidence” standard. This is a higher standard, where the plaintiff will have to convince the jury that there is a substantial likelihood that the defendant committed the wrongdoing. However, both civil burdens are still much lower standards than criminal cases are held to, where a case will generally have to be proved beyond a reasonable doubt.

What Does Burden Shifting Mean?

If the plaintiff presents enough evidence that could reasonably convince a jury by the preponderance of the evidence that the defendant committed the wrongful act, the burden will shift to the defendant.

What this means is that the defendant has to present evidence that persuades the jury that the defendant did not commit the act, more than plaintiff’s evidence.

The jury can then weigh the evidence and determine if the preponderance of the evidence standard has been met. Evidence can be offered in several forms at trial. This can include:

• Live testimony (from the parties, expert witnesses or other witnesses that support or rebut the case);
• Testimony that is recorded prior to trial;
• Medical records;
• Photographs; and
• Videos.

In theory, the burden can continue to shift until one party is unable to meet the burden. They can attempt to meet the burden, but it will be up to either the judge or jury to determine if that burden was sufficiently met. In the end, if they did not meet the burden then the fault will lie with them.

Why Do We Have Different Standards of Proof?

Different standards of proof are applied depending on what is at stake in the case. In civil cases, it is often an issue of money or rights to a property (like a home or a car). But in criminal cases, the question is whether the government has the right to deprive an individual of their freedom and to punish them for violating the law.

There is much more at stake when a person may be potentially facing imprisonment compared to when they need to pay $10,000 for a damaged house. While $10,000 is a significant sum, it is not the same as removing the person from society.

Additionally, in some cases a defendant knows there will be a civil case. For example, if they assaulted another person and were found guilty, they might have paid a fine or had “time-served” (as in the time they spent in jail awaiting trial is applied to their sentence). But they also know that the victim will sue them for compensatory damages for the assault.

This would not be considered double jeopardy as it is not the government/state charging and trying the defendant of the same crime. Instead it is the victim now suing the defendant in civil court for damages not related to the fine the defendant paid to the government.

In these cases, a savvy defendant might plead “no contest” which means the victim cannot use the defendant’s guilty plea as a sign that they should win the civil claim. Typically, if the defendant pleads “guilty” then their guilty plea can be used against them in a civil claim that quickly clears the burden of “preponderance of the evidence”.

If the higher burden of proof was cleared, then the lower one is assumed to also have cleared. These different burdens might seem confusing and unnecessary, but they are an important part of the litigation process and ensures that the right amount of

Should I Hire an Attorney for my Civil Trial?

If you are involved in a civil case, whether it be as a plaintiff or a defendant, you should hire a local civil attorney. On the plaintiff side, an attorney can make sure that you present enough evidence at trial to convince a jury that there is a greater than 50% chance that defendant is liable. On the defense side, an attorney can help you come up with a strategy to rebut and disprove the plaintiff’s evidence.