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Oh, the Burden We Bear!
By Gregory L. Hanchett
Vol. 24, July 2002
Lawyers frequently banter about the term “burden of proof” as though it needs no explanation and is well known to even a lay person. But what does it mean for a litigant to “bear the burden of proof?” Which party to a case has the burden? The failure to fully understand what it means to “bear the burden of proof” can have dire consequences for a litigant. It can mean losing the case. The purpose of this short missive is to shed light on the burden of proof and which party bears that burden.
When a litigant is saddled with the burden of proof, that litigant really has two burdens. The first is the “burden of going forward,” also known as the “burden of producing evidence.” The second is called the “burden of persuasion.” The burden of going forward is just what the name implies: The party who has this burden is required to present evidence to prove his or her claim before the opposing party has any requirement to present evidence. The runner who never leaves the starting line is akin to the litigant who fails to meet the burden of going forward. Like the runner who never leaves the blocks, the litigant who fails in the burden of going forward can never hope to win his case because he is never “in the race.”
The burden of persuasion, on the other hand, entails more than the burden of putting on some evidence. The burden of persuasion requires a party to persuade the decision maker that the party is entitled to the relief or benefits sought. It is possible for a party to meet the burden of production, yet still lose the case because the party failed to meet the burden of persuasion. Returning to the runner analogy, the litigant who fails to meet his or her burden of persuasion is like the runner who loses the race because he has not trained sufficiently to run faster than the other runners. While he is obviously ahead of the runner who never left the starting block, he nevertheless fails to reach his goal of winning the race.
In order to meet the burden of persuasion, the litigant bearing that burden must, in most cases, prove his or her case by a “preponderance of the evidence.” This standard of proof basically requires the litigant to demonstrate to the decision maker that the existence of the fact in question is more likely than not.
Which party to an administrative hearing bears the burden of proof? As a general rule, where a hearing involves the denial of an application for a license or the denial of a benefit that is sought, the burden is on the person who applied for the license or benefit. Where the proceeding involves disciplinary action against a license, the burden is on the agency seeking such action.
As a practical matter, how does a party meet the burden of proof? First, appear at the hearing and be ready to proceed with evidence. Some litigants make the mistake of believing that an appeal can be won by simply filing the notice of appeal or perhaps sending a letter without appearing for the hearing. When a party bears the burden of going forward and persuasion, his or her failure to appear for the hearing results in an obvious failure to meet either burden and ensures that the party will lose.
Second, be prepared. To meet the burden of production, a party who bears that burden must be prepared to go forward with his or her evidence at the time of the hearing. It does no good to tell the decision maker that you have a document that you wish to have placed in evidence but that you forgot to bring it with you. Make sure that every document that you wish to have admitted into evidence is with you and available at the time of the hearing. Remember that OAH procedural rule 19-115 requires you to provide a copy to other parties when you present it at the hearing, if not done so beforehand. Likewise, have all witnesses available and ready to testify.
Like the runner who trains, the litigant who understands the burden of proof puts himself or herself in the best position to reach the goal of winning.