What Is the Standard of Proof in Civil Law?

In most civil cases, the plaintiff must prove the correctness of his case by a “preponderance of the evidence” – that is, more likely than not. In some civil cases, however, the plaintiff must prove his case by “clear and convincing evidence”, which is a stricter standard.

In court cases, one party has the “burden of proof” – the burden of showing that its side is correct. Generally, the side that seeks to raise an issue has the burden of proof on that issue. In criminal cases, the state has the burden of proof. In civil cases, the plaintiff generally has the burden of proof; however, if the defendant raises an affirmative defense or counterclaim, the defendant has the burden of proof. To see the definition of a “civil” and a “criminal” case, and the difference between the two types of cases, read my earlier post here.

What is the burden of proof in a civil case?

In most civil cases, the burden of proof is “by a preponderance of the evidence.” The Oklahoma Uniform Jury Instructions define “preponderance of the evidence” as “greater weight of the evidence.” The jury instructions further state that the jury “must be persuaded, considering all the evidence in the case, that the proposition on which such party has the burden of proof is more probably true than not true.”

However, in some civil cases, the burden of proof is by “clear and convincing evidence.” The jury instructions define “clear and convincing evidence” as “[the jury] must be persuaded, considering all the evidence in the case, that the proposition on which the party has this burden of proof is highly probable and free from serious doubt.”

In Oklahoma, the civil cases that require proof by clear and convincing evidence include – but aren’t limited to:

·       Whether a child born out of wedlock is an heir to an estate

·       Whether someone revoked an advance directive

·       Whether a court should award punitive damages

·       Professional discipline cases

·       Whether it is in a child’s best interests to withdraw life-sustaining treatment

·       Whether a person seeking custody of a child is an alcohol- or drug-dependent person who can be expected to seriously harm himself or another person

·       Whether to allow a child witness to testify by alternative means on the grounds that face-to-face testimony would cause serious emotional trauma to the child.

But, in most other civil cases, the standard is a preponderance of the evidence.

This is different from the standard of proof in criminal cases, where the state has the burden of proving the defendant’s guilt “beyond a reasonable doubt.”

What do “preponderance of the evidence”, “clear and convincing evidence”, and “beyond a reasonable doubt” mean?

This is a very difficult question, and courts have struggled to answer it. Some courts have held that any attempt to answer this question can confuse the jury. For example, one Nevada judge instructed a jury that, on a scale of zero to ten, “preponderance of the evidence” was “just over five” and “reasonable doubt” was “seven-and-a-half.” The Nevada Supreme Court overruled this judge, holding that “The concept of reasonable doubt is inherently qualitative. Any attempt to quantify it may impermissibly lower the prosecution's burden of proof, and is likely to confuse rather than clarify.” In a West Virginia case, the jury asked the judge to define reasonable doubt, and the judge refused to do so. An appeals court affirmed this decision, holding that “efforts to define reasonable doubt are likely to confuse rather than clarify the concept.”

When I was in law school, one of my professors defined “preponderance of the evidence” as 51%, and “clear and convincing evidence” as 75%. This professor acknowledged, however, that defining these terms is very difficult.

Do you want to know what standard of proof you face in your case? Contact the Persaud Law Office

The Persaud Law Office has handled many civil cases. If you are the plaintiff, we can tell you what your burden of proof is. If you are the defendant, we can tell you what burden the plaintiff has of proving his case against you. If you would like us to represent you in your civil case, contact us today. NOTE: While we can tell you what your burden of proof is, we never tell any client what his chances of winning are. Litigation is simply too volatile and unpredictable for us to tell any client whether he is likely to win or not. We’ve had many clients ask us what their chances of winning are, and it is our police not to tell them. To see a further explanation as to why we don’t tell clients their chances of winning, click here.  

Photo “Burden of Proof” courtesy of https://pix4free.org/photo/4239/burden-of-proof.html. Photo by Nick Youngson CC BY-SA 3.0 Pix4free