Personal Injury clients often ask me “Do I have to go to trial if we file a lawsuit?” The simple answer is: most likely not because the majority of personal injury lawsuits (about 95-98%) settle without the need to go to trial.
Sometimes, a personal injury case settles shortly after a lawsuit is filed. Other times, it settles after the defense finishes its discovery, including taking the Plaintiff’s deposition. Many times, a personal injury case settles at mediation, and sometimes, it settles just weeks before trial.
For those rare cases that end up going to trial, what is the burden of proof for the plaintiff or victim in order for him/her to succeed? Most people are familiar with TV shows such as Law and Order, which deal with criminal trials. In a criminal trial, the burden of proof for the prosecutor is “beyond a reasonable doubt”.
However, when it comes to civil cases, such as personal injury lawsuits, the burden of proof is“beyond a preponderance of the evidence”, which is a lesser burden to overcome.
What does “beyond a preponderance of the evidence” mean?
It simply means “more likely than not” or anything over 50%. Think of it as a scale of justice.
At the beginning of trial, the scale is even on both sides (plaintiff’s side and defendant’s side). Throughout trial, evidence is presented. Evidence could be in the form of testimony (by the parties, by witnesses and by experts), or it can be demonstrative (photographs and diagrams) . Attorneys also make arguments during trial and even though such arguments could sway jurors, arguments are not evidence.
Each time evidence is presented, the scale of justice moves on the side where evidence is presented. If Plaintiff presents evidence, then the scale tips in his/her favor and if Defendant presents evidence, the scale tips in his/her favor. Here is the key: not all evidence are created equal.
Some evidence are stronger than others, and hence, they weigh more on our imaginary scale of justice. At the end of trial, if the scale is tilted toward the plaintiff’s side ever so slightly, then plaintiff has met his/her burden and wins. If we use percentages, anything over 50.0% (even 50.001%) suffices.
It should be noted that this burden of proof is used in lawsuits involving negligence on the part of the defendant, such as accidents (including car accidents, truck accidents, motorcycle accidents, bus accidents, construction site accidents, bicycle accidents), some slip and falls, some dog bite cases (cases not against the dog owner), and some products liability cases.
Some personal injury cases, such as dog bites (against the dog owner) and most products liability are strict liability cases. This means that defendant is already presumed to be at fault and plaintiff does not have to meet his/her burden on the liability portion of his or her case but still needs to prove damages.
This article is brought to you by Personal Injury Attorney Mason Rashtian of The Mason Law Firm. We will provide you with an honest and complete assessment and educate you as to your options.
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