Burden of Proof – Preponderance v. Clear and Convincing

I had coffee with an evidence professor and after we finished discussing my wife’s homemade burrata, we moved onto burden of proof.   He reminded me, there are 2 parts the plaintiff has to establish — (a) burden of production and (b) burden of proof.

The first goes towards whether the plaintiff is able to show evidence to prove their case (i.e. did you put forth any documents, witnesses, tangible items?).  The second goes towards whether what you put forth reaches the level of persuasion necessary to convince the court you should win (see below).  A good way the professor summarized it is the first part is “what did plaintiff actually show?” and the latter is “was it enough?” Albeit it looks obvious, he said most plaintiff’s do not meet the first burden which should automatically preclude them from meeting the second.

In adversary proceedings re: 523/727, plaintiff must persuade the court by preponderance of the evidence which asks “is it more likely than not that what plaintiff says to be true or not?”  (~51%).  Clear and convincing standard is higher and asks “is it substantially likely that what plaintiff says to be true or not?) (~70%).

I had essayist Chris Hitchen’s quote written in my law school notebook — “what can be asserted without evidence can be dismissed without evidence.”  This has come to be called Hitchens’s Razor (like Ockham’s razor).

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