One of the most fundamental concepts in personal-injury law is the burden of proof. Technically, there isn’t just one burden of proof, but three:

• The burden of pleading refers to the requirement that a plaintiff must plead whatever it is he or she wants to prove in court. Otherwise, the court might not let him or her introduce evidence on that topic.
• The burden of production is a minimum requirement for evidence. If the plaintiff fails to introduce enough evidence that the jury could find in his or her favor, the judge may decide that particular issue against the plaintiff.
• The burden of persuasion is what most people think of as the “burden of proof.” It refers to the requirement that a party convince the jury of the truth of his or her claims by a specific standard of proof.

The burdens of pleading and of production are somewhat technical in nature, so this post focuses on the third type of burden, the burden of persuasion.

The Plaintiff’s Burden of Proof

Because the plaintiff is the party requesting that the court do something—order the defendant to pay compensation, for instance—the plaintiff has the burden of proving his or her cause of action. The plaintiff must typically do this by a preponderance of the evidence (POTE). That’s what we call the standard of proof that the plaintiff must satisfy.

You may be more familiar from television and movies with the standard of proof used in criminal cases: beyond a reasonable doubt. POTE is much lower than that. In fact, it’s the lowest standard of proof in the law.

The Illinois Pattern Jury Instructions, which is a template courts can follow when instructing a jury, explain what the POTE standard requires: The jury must be persuaded, considering all the evidence in the case, that the plaintiff’s claims are more probably true than not true.

Another way to think of the POTE standard is in probabilistic terms: If the evidence makes it just 51% likely that the plaintiff’s claims are true—or 50.001%, for that matter—then the plaintiff wins.

When the Defendant Has the Burden of Proof

By default, the defendant in a personal injury lawsuit does not have a burden of proof, because the defendant isn’t trying to prove anything. However, in some circumstances, the defendant is trying to prove something, and so does have a burden of proof.

The most common example of this is when the defendant claims that the plaintiff’s negligence contributed to his or her own injury. If the jury agrees with the defendant, then the plaintiff’s recovery will be reduced in proportion to his or her own fault. If the plaintiff’s fault accounts for 51% or more of his or her own injuries, then he or she will be unable to recovery anything from the defendant.

Defendants also bear a burden of proof when they assert an affirmative defense against the plaintiff’s claims. An affirmative defense is one that, rather than denying that the plaintiff’s claim is true, offers some reason why the plaintiff should still lose. The expiration of the statute of limitations is an example of an affirmative defense.

Finally, if the defendant asserts a counterclaim against the plaintiff, then the defendant bears the burden of proof on the counterclaim.

How an Illinois Personal-Injury Lawyer Can Help

If the plaintiff in a personal-injury case can’t meet his or her burden of proof, then he or she will lose the lawsuit. Personal-injury lawyers like the ones at Costa Ivone in Chicago understand how to build a case that maximizes the chance that a jury will side with the plaintiff. If you’ve been injured and want to build the strongest case you can, contact Costa Ivone today.