In our system of justice there are three burdens of proof that apply depending on the type of case or the issues involved. One of them everybody knows. The other two, not so much. And that is a bit frightening for a personal injury lawyer like me because it’s one of the two burdens that applies in every personal injury case.

In criminal cases the burden is “beyond a reasonable doubt.” This is the one everyone knows because we have seen it on TV. Crime dramas make good TV, and in criminal cases the burden is beyond a reasonable doubt. It is the absolute highest standard in the law. When talking to potential jurors I generally get a response that they believe this standard means they need to be about 99% convinced of the defendant’s guild.

The next highest standard is ”clear and convincing.” This is lower than beyond a reasonable doubt and is used primarily when someone is alleging fraud or punitive damages (damages to punish the defendant because they acted with a conscious disregard for health, safety, and welfare of the public- think drunk driving). Generally, people tell me they would need to be about 75% sure to be clearly convinced of the defendant’s guilt in these types of cases.

The standard in personal injury cases is “a preponderance of the evidence.” This is the lowest burden of proof in the law. For the plaintiff to meet their burden they must convince the jury that he or she (the plaintiff) is just more likely right than wrong. Just more likely than not.

If we were to look at a scale that was evenly weighted, and a feather drops on the plaintiff’s side to tip, it’s just enough so that the plaintiff’s evidence has a little bit more convincing weight, that is a preponderance. If we are using percentages, it can be said that 50.1%, just more than half, is sufficient for the plaintiff to meet his or her burden. Or, to use a sports analogy, if your favorite team is in the Super Bowl, they don’t need to win 42-7 to hoist the Lombardi Trophy. They can kick a last second field goal, win 28-27 and they have still won. They are still the champions winning just by a preponderance of the points. So, in a case where preponderance of evidence applies anyone in the jury room who says “I don’t know, I am just not sure” would not be applying the proper burden. The law doesn’t require that strict of a standard in civil cases. The jury doesn’t have to be sure; it just needs to be convinced more likely than not. A lot of plaintiffs have had justice denied to them because the jury thought the plaintiff had to win my more, sometimes a lot more, than just one point.

Preponderance of evidence applies to both elements of plaintiff’s claim- liability (who is at fault) and damages (what injuries were caused by the crash, was the treatment reasonable, how much in pain and suffering did the plaintiff endure, what is the value of the damages suffered by the plaintiff). Whether a plaintiff is asking for $20,000, $200,000, $2,000,000 or $200,000,000 the burden remains the same. It doesn’t go up based on the damages that are being sought.

If you ever find yourself on a jury and start hearing these terms, you’ll now have a primer for what you are going to be asked to do if you wind up being selected as a juror. These burdens and their distinctions are extremely important. Applying them correctly helps ensure justice is done.

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