Snellings Law PLLC Attorneys are Personal Injury Trial Lawyers

Auto Accident Injury Lawyers

How Burdensome Is Your Burden?

Many have heard the stories of law school professors calling on students, making them stand, and then tormenting them for any number of transgressions. I had certainly heard those stories before hearing my name called out in a class of about 75 strangers in my first week of law school. 

“Mr. Snellings, please tell us what the burden of proofis for a plaintiff in a civil trial.” 

I have no idea if I answered correctly, but I do recall how thin the air seemed when I stood up to answer the question.

What is a Burden of Proof?

Burden of proof refers to which side in a trial must “prove” a specific claim or defense. The party filing the lawsuit, the plaintiff in a civil case or the government in a criminal case, must prove certain elements in order to prove their claim (what we call a “cause of action”). For example, in a personal injury lawsuit, the plaintiff has the burden to prove that the defendant was negligent and caused his injuries. See our blog on negligence for a description of the specific elements (What is negligence?). In some cases, the defendant will set forth certain defenses requiring them to meet a burden of proof. Have you ever wondered how each side determines who gets the counsel table closest to the jury? It is whomever has the burden of proof.


What is the Burden of Proof for a Civil Trial?

During jury selection, when we ask a panel what is the burden of proof for the government in a criminal case – hands shoot up or several people blurt out – “Beyond a reasonable doubt,” or some variation thereof. We hear about this burden on television shows, in movies, on the news, and many other media outlets where criminal law is discussed. I would venture to say most Americans are pretty familiar with this burden of proof. When we ask what the burden of proof is in a civil setting, we typically get the opposite…blank stares, no hands, and complete silence.

The answer to this question is “preponderance of the evidence.” Usually, right after I tell the panel that is the standard, the blank stares continue. I felt the very same way when I heard that standard in law school. Could anyone come up with a more legalese sounding name for a basic concept? But have no fear, the jury is provided with an instruction for preponderance of the evidence:

The term “preponderance of the evidence” means the greater weight of credible evidence presented in this case.

Well, that provides a little help, but it is still vague. Most courts will provide the additional following language:

A preponderance of the evidence is not measured by the number of witnesses or by the number of documents admitted in evidence. For a fact to be proved by a preponderance of the evidence, you must find that the fact is more likely true than not true.

Now, we are getting somewhere. You must find the fact is more likely true than not true. The plaintiff must prove it is more likely true than not true that the defendant was negligent. The plaintiff must also prove it is more likely true than not that his injuries were caused by the crash. We often use the visual of a scale and explain a preponderance is a “slight tipping of the scales.” In other words, when looking at all of the evidence and testimony, if the jury thinks we are more likely right than wrong, then they must find in our favor. This is true for both liability and damages.

When we explain this preponderance of the evidence standard, many panelists have a difficult time agreeing to use it if they are selected to serve. We often hear things such as “I would need more proof than that,” “if you are asking for money, then you need to prove more,” and “that’s just not fair.” This is exactly why jury selection is so incredibly important. Both sides need to identify which jurors are just not able to follow the law, for whatever reason, and make sure they do not get seated on the jury. Otherwise, neither side can be guaranteed of a fair trial.

At Snellings Law PC, our practice focuses solely on helping injured victims. If you or a loved one has been injured due to someone else’s negligence, we would be happy to set up a free consultation to discuss your options. Please call us at 214-387-0387 or you can find us at

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