What is Burden of Proof in Civil Cases? How Does It Apply to Personal Injury?

When a party in a case makes an allegation, we say that that party has the burden of proof, or the legal responsibility of producing evidence which backs the claim they have made. In a typical case, the burden of proof is on the plaintiff and his or her legal team. Depending on the type of case, the burden of proof itself may operate according to different standards.

Need to Know

• Unlike criminal cases, most civil cases operate by a lesser standard of proof called “preponderance of the evidence.”
• More rarely, a New York civil case may operate by a “clear and convincing” standard more exacting than the “preponderance” standard, or may receive somewhat unique treatment due to the application of the state’s “Noseworthy doctrine.”
• Before taking your case, a good attorney will conduct a thorough investigation to determine whether the evidence in your case can meet or exceed the required burden of proof.

In This Article

• How Burden of Proof Factors in Personal Injury Cases
• Standards for Burden of Proof in Civil Cases
• The Noseworthy Doctrine in Wrongful Death Cases
• Meeting the Burden of Proof: What to Keep in Mind

How Burden of Proof Factors in Personal Injury Cases

At the outset of any case, an experienced personal injury attorney will conduct a thorough investigation in order to determine whether or not to proceed. At this stage, the ability to satisfy the burden of proof is one of the key factors your attorney will be investigating for.

They will evaluate elements such as the vantage point of witnesses, your own credibility as a client and the credibility of available witnesses, the recollection and consistency of witness and client testimony, physical evidence, and external factors that corroborate your story. By analyzing these elements, your attorney will develop an understanding of whether your case can be proven in a courtroom.

Skilled injury attorneys are familiar with situations wherein meeting the burden of proof presents unusual challenges. To name one example, many personal injury cases exist in which the client has little or no memory of the incident which caused the injury, most frequently in cases of head trauma. Wrongful death cases, too, center on a victim who cannot testify to the incident.

Such cases typically rely heavily on witness testimony and other external evidence. A good attorney will conduct a thorough search, maintaining a strong awareness of the circumstances and how they impact the sources of evidence.

For example, when a construction worker dies on the job, the legal team handling a wrongful death suit may be aided by reports generated by the organizations that investigate such circumstances, such as the Occupational Safety and Health Administration (OSHA) and/or the Department of Buildings in New York City. While such a report may be a good starting point, it is only as reliable as the people being consulted. Many companies develop cultures which discourage their employees from cooperating with an investigation, fearing the fines and penalties that could result if their practices are found to be unsafe—regardless of whether those practices lead to the victim’s death or not. An attorney with perspective, while taking the report into account, will also take care to search for witnesses, evidence, and sources that are external to the company.

Standards for Burden of Proof in Civil Cases

The burden of proof in most civil cases operates by a standard called preponderance of the evidence. In such cases—unlike in criminal cases, which use the beyond a reasonable doubt standard—it is sufficient to determine that the claim being made is more likely to be true than not, based on the evidence presented. A good attorney, however, will demand more and try to compile evidence that leaves little or no doubt about who should prevail in a case.

Less commonly, a civil case might operate on the more challenging standard of clear and convincing evidence, which can be loosely described as a hybrid of the “beyond a reasonable doubt” and “preponderance of the evidence” standards. A “clear and convincing evidence” standard has been satisfied when the party making a claim is able to establish a high probability that the claim is true, based on the evidence presented.

The Noseworthy Doctrine in Wrongful Death Cases

It is possible for an injury to be witnessed by no one—the victim included. A wrongful death, or an injury which causes amnesia in the victim, may well occur in such a way that no one can reliably testify to its most critical details.

If you live in New York, such an incident may lead your attorney to seek to invoke the state’s “Noseworthy doctrine,” which originated from a 1948 wrongful death case, Noseworthy v. City of New York. The victim in the incident, Ernest Noseworthy, had somehow made his way onto the tracks in an empty, but well-lighted subway station when he was fatally struck by the oncoming subway train. The only witness to the incident was the subway operator, who claimed that he was unable to stop the train in time to avoid making contact. All other details—such as how the victim made it from the platform to the tracks and whether he was conscious or unconscious at the time of the incident—were unclear. With the victim unable to testify for himself, the court held that the deceased plaintiff in a wrongful death case should be held to a different degree of proof than a living victim able to testify.

The 1971 case Schechter v. Klanfer extended the Noseworthy doctrine to cases in which a living victim suffers amnesia as a result of the incident. However, such cases require the stricter clear and convincing standard of proof—in this case, proof that the victim cannot recall the incident, and that this lack of recall directly resulted from the incident itself—in order to successfully invoke the doctrine.

Despite the lack of witnesses to the original case, the Noseworthy doctrine may also apply to cases in which witness testimony is available. In one case Block O’Toole & Murphy dealt with, a mother was driving with her three young children when a work van collided with the driver’s side of their car, killing the mother and one of the children. The driver of the van and his passenger both testified that the victim had run a red light, while the van had a green light.

Our investigation probed inconsistencies in the story, aided by the testimony of other drivers at the intersection, including one who testified that the victim appeared to be focused on the road and was neither distracted nor talking to her children while driving, as well as the driver behind the defendant, who could not say whether the light was red or green. With the victim unable to testify for herself, these details held more weight than they might have done in a more standard investigation, and we were able to secure a $7,525,000 settlement for the surviving family members.

Meeting the Burden of Proof: What to Keep in Mind

Potential clients in a personal injury case should first be aware that, as the plaintiff in the case, they and their team will be required to meet the burden of proof, whatever the standard may be. When you retain an experienced attorney, this should not be cause for alarm: as previously stated, a reasonable expectation of meeting the burden of proof is a necessary condition for a trustworthy attorney to take your case.

The plaintiff may not be the only party required to meet a burden of proof. Should the defendant’s team raise an affirmative defense, or an allegation with the potential to dismiss the case, during the “answer” stage (following the initial pleading), the defense will be responsible for the burden of proof related to that allegation. (Common affirmative defenses in personal injury cases include failure to mitigate, alleging that the plaintiff did not take normal steps to treat or otherwise address the injury, and assumption of risk, alleging that the responsibility of taking a risk resides solely with the plaintiff.) For the claim which constitutes the case itself, however, the plaintiff remains responsible.

We hope that this knowledge will give injury victims and their families—who often feel helpless in the face of whatever incident has caused them to seek legal aid—a sense of their own power to influence the case for the better. By gathering evidence such as photographs, witness names and contact information, police statements and reports, and other data relevant to the case, a thoughtful plaintiff may help place their legal team on a clear path to meeting the burden of proof before the case even starts.

The attorneys at Block O’Toole and Murphy have a deep understanding of the investigation required to meet a burden of proof and are committed to using their expertise to serve you. Contact the experienced personal injury attorneys at Block O’Toole & Murphy to receive a free legal consultation by calling 212-736-5300, or by filling out our online contact form.