Burden of Proof

Burden of Proof

When you file a claim against a defendant for personal injury, who has the burden of proof? In other words, whose responsibility is it to prove or disprove the claim? 

If your intuition is telling you that the party who made the claim has the burden of proof, you would be right. The general rule is that whoever makes an assertion has the burden of proving that assertion. 

The Burden of Proof = Burden of Production + Burden of Persuasion

The Burden of Proof = Burden of Production   Burden of Persuasion

The burden of proof consists of two parts: the burden of production and the burden of persuasion. The burden of production is the burden to present sufficient evidence to justify a decision in your favor even if the defendant submits no contrary evidence. 

After you meet the burden of production, you must then persuade the jury or the court that the fact you are trying to prove is true. This is called the burden of persuasion. Once you meet the burden of production and the burden of persuasion, you have met your burden of proof. 

The Standard of Proof

The standard of proof specifies the precise character of the burden of proof that you must bear to win your claim. Your burden of proof might be light, or it might be heavy. Following are three different formulations of the burden of proof for three different purposes, from least difficult to meet to most difficult to meet.

“Preponderance of the Evidence”

“Preponderance of the evidence” is the standard that most often applies to plaintiffs in personal injury trials. It is a relatively easy standard to meet. All you have to do is establish that whatever claim you are trying to prove is more likely than not to be true. Even a 51% likelihood is enough. 

“Clear and Convincing Evidence”

The “clear and convincing evidence” standard applies to claims for punitive damages and to a few other matters. To qualify for punitive damages in Pennsylvania, you must show that the defendant’s conduct or motives were malicious, wanton, or otherwise outrageous. 

Your evidence is “clear and convincing” if it shows that the fact you are trying to prove (that the defendant’s motives were malicious, for example) is far more likely to be true than untrue.

“Beyond a Reasonable Doubt” 

The “beyond a reasonable doubt” standard applies to criminal trials, not to civil trials. Prosecutors use it to win convictions against people accused of crimes. All the accused has to do to win is to introduce reasonable doubt. 

The disparity between the “beyond a reasonable doubt” standard used in criminal court and the “preponderance of the evidence” standard used in personal injury cases allows defendants to sometimes win acquittals in criminal court for the same conduct that resulted in a successful lawsuit against them in civil court.  

The Elements of a Claim

Your claim is your assertion that you deserve compensation for some reason. This “reason” consists of several facts that you must prove. You must prove every element of your claim to qualify for compensation. The specific burden of proof that you bear depends on the type of claim you are asserting. 

Example: The Elements of a Negligence Claim

To win a negligence claim, you must prove the following four facts:

  • The defendant owed you a specific duty of care;
  • The defendant breached their duty of care to you;
  • You suffered damages (a broken leg and a totaled automobile, for example); and
  • The defendant’s breach of duty was the foreseeable cause of your damages.

Since negligence is a civil claim, you must prove each element of your claim by a preponderance of the evidence. If you claim punitive damages, you will have to present “clear and convincing evidence” to prove that the defendant acted outrageously.

Affirmative Defenses: Reversing the Burden of Proof

Depending on the facts of your case, the defendant might have a variety of defenses available to them. An affirmative defense is a special kind of defense that the defendant must prove. The defendant must prove their affirmative defense by a preponderance of the evidence. The most popular affirmative defenses include:

  • Comparative fault (when the parties share blame for the accident);
  • Expiration of the statute of limitations deadline to file a lawsuit;
  • Assumption of risk (if you signed a waiver of liability form, for example);
  • Failure to mitigate damages (if you failed to follow your doctor’s instructions, for example); and
  • Consent (you got hurt after agreeing to a boxing match, for example).

Not all affirmative defenses are case-winners for the defendant. Some, such as failure to mitigate damages, serve only to reduce the amount of compensation.


Not all claims mature into lawsuits. In settlement negotiations, there is no judge to decide when a party has met their burden of proof. All you can do is try to guess what a court would do. This is how people resolve most personal injury claims.

A Philadelphia Personal Injury Lawyer Can Help You Gather Admissible Evidence

Not all evidence is admissible. Sometimes, in fact, the rules are highly counterintuitive. Did you know, for example, that you usually cannot introduce evidence that someone repaired a dangerous condition to prove that it was dangerous in the first place? 

A good Philadelphia personal injury lawyer should know the Pennsylvania Rules of Evidence backward and forward. The best part is that most Philadelphia personal injury lawyers work on a contingency fee basis, which means you only pay attorney’s fees if you win compensation. Schedule a free consultation with our personal injury lawyers from Zavodnick & Lasky Personal Injury Lawyers at (215) 875-7030 to learn how an expert witness can strengthen your case.