The Burden of Proof in a Personal Injury Case

In any personal injury case that ends up in court, it's ultimately going to be the injured person’s job to convince a judge or jury that the person being sued is responsible for:

• causing the underlying accident, and
• the cost and impact of the resulting injuries.

Let's look at just how much convincing the plaintiff (the injured person) must do in a personal injury lawsuit, and how and when that burden of proof is applied.

What Is a "Burden of Proof"?

All legal cases, whether civil lawsuits or criminal proceedings, have certain evidence-related thresholds that must be met in order for a court to impose a judgment. The phrase "burden of proof" refers to just how convinced the judge or jury must be before ruling for or against something or someone.

Most people commonly understand this to mean how convinced the judge or jury is of the case as a whole, for example whether a criminal defendant is guilty of murder "beyond a reasonable doubt." However, the burden of proof applies to each individual element in a claim. For example, in a personal injury lawsuit over injuries resulting from a slip and fall, the injured person usually has the burden of proving several things, including:

• that there was an unsafe condition on the property
• that the property owner acted unreasonably in failing to notice or fix the problem, and
• that their injuries were the direct result of that negligence.

The "More Likely Than Not" or "Preponderance of Evidence" Standard

Personal injury cases are civil court matters, as opposed to criminal cases. The district attorney or other public official prosecuting a criminal case must prove each element of the case "beyond a reasonable doubt." That's a high bar that needs to be cleared.

The plaintiff in a civil case—including personal injury lawsuits—has a much lower burden of proof: the plaintiff must convince the jury that it is "more likely than not" that the defendant is liable. "More likely than not" (or "by a preponderance of evidence") essentially means the jury thinks the chance the plaintiff’s version of the facts are true is at least 51%, while the chance they are false is no more than 49%.

Does the "Burden of Proof" Apply In an Injury-Related Insurance Claim?

In a very informal sense, yes. An insurance adjuster probably isn't going to use terminology like "burden of proof," but any time you file an insurance claim under someone else's coverage, you're asking the insurance company to agree:

• that its insured was responsible for your accident, and
• that your injures are as extensive and as serious as you say they are.

You're going to have to show the adjuster some amount of proof of these two elements, such as witness statements, police reports, medical bills, and treatment records. Learn more about proving fault in an injury case and how "damages" work.

Does the Defendant Have a "Burden of Proof" in an Injury Case?

The defendant is not required to prove their version of events is true. In other words, when the plaintiff is trying to prove the elements of the case, the defendant doesn't need to convince the jury of an alternative version. All that's necessary for the plaintiff's case to fail is for the jury to believe that the chances are 50% (or more) that the plaintiff’s version is inaccurate or false.

The defendant can of course present evidence of facts that contradict the plaintiff’s version of events, but the jury doesn't need to be convinced that the defendant’s version is the most accurate. The defendant's side of the story can simply act to cast enough doubt on the plaintiff’s version, so that the jury no longer believes the plaintiff’s version is "more likely than not" true.

What Are "Affirmative Defenses" in an Injury Case?

The defendant does have the burden of proving an "affirmative defense" in an injury case. An affirmative defense occurs when, regardless of the plaintiff’s success in proving the elements of the claim, the defendant proves additional facts that defeat the plaintiff’s claim. The defendant must prove the elements of an affirmative defense to be "more likely than not" true.

An example of an affirmative defense is assumption of the risk, which could arise in cases where the plaintiff was injured while participating in a sport or risky activity. Even if the plaintiff successfully convinces the jury of all the elements of this kind of case, if the defendant then successfully convinces the jury that plaintiff "more likely than not" agreed to participate in the risky activity, and the injuries arose in the normal course of that activity, the defendant will likely win the case.

Example: Burden of Proof in a Civil Battery Claim

The two essential elements of a civil battery claim are usually:

• actual offensive or harmful contact with the plaintiff, and
• the defendant’s intention to cause that contact.

So, in a civil battery case that goes to trial, the jury will be asked if it's more likely than not that "actual offensive or harmful contact" occurred, and if it's more likely than not that the "defendant intended to cause the contact."

Let’s say the plaintiff presents the testimony of a bartender who says she saw the defendant punch the plaintiff in face. The jury finds the bartender credible and finds it "more likely than not" that harmful contact occurred. When asked if it appeared that the defendant intended to punch the plaintiff in the face, the bartender says yes, that it did not at all appear to be an accident. Believing the bartender, the jury also finds it "more likely than not" that the defendant intended to cause the harmful contact.

If the defendant didn't have an affirmative defense, the plaintiff would win the case at this point because he had met his burden of proof on all the elements of the battery claim. Imagine, however, that the defendant presents testimony from three different witnesses who all testify that the plaintiff asked the defendant to punch him so that the plaintiff could show off his toughness. If the jury believes the testimony is more likely true than not, the defendant will meet his burden of proof for the affirmative defense of "consent" and win the case.

What's Next?

If your personal injury lawsuit is headed to trial, you'll almost certainly have a lawyer on your side to make sure you put your best case together. But an attorney's help can be critical much earlier on in your case, especially when it's time to talk settlement and try to avoid court altogether. Learn more about finding the right personal injury lawyer.