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Burden of Proof

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Burden of Proof

The burden of proof describes “the standard that a party seeking to prove a fact in court must satisfy to have that fact legally established.” It also refers to which party must support their assertions with evidence in the first place. 

In other words, it tells you how strong your proof has to be to win and whether you must submit that proof at all. Continue reading to learn more about the burden of proof and how it applies to personal injury cases.

What Kinds of Evidence Can Prove a Personal Injury Claim?

What Kinds of Evidence Can Prove a Personal Injury Claim?

The relevance of evidence is highly dependent on the context, meaning the facts of your case and the nature of your claim. If you’re trying to prove a personal injury claim, are you trying to win a car accident claim, a slip and fall claim, or a medical malpractice claim? It matters. 

Following are some examples of frequently-used evidence:

  • Cell phone records, 
  • Diaries or journals, 
  • Expert testimony, 
  • Financial records, 
  • Medical records, 
  • Photographs and videos, 
  • Surveillance footage,
  • Physical evidence, 
  • Police and accident reports, 
  • Witness testimony, including your own, and
  • Social media posts.

Ultimately, almost anything can qualify as evidence. Always remember, however, that no two cases are ever exactly the same. Consequently, there are no cookie-cutter solutions.

Most personal injury claims involve negligence. To win a negligence claim, you must prove the following:

  • The defendant owed you a duty of care. Almost everyone owes everyone else a minimum duty to take reasonable care to avoid an accident. 
  • Whatever the defendant’s duty of care, they must have breached that duty. A driver has a duty to watch the road, for example, and they breach that duty by texting while driving.
  • You suffered a physical injury (in most cases). Once you prove physical injury, you can demand damages for psychological injuries as well.
  • The defendant’s breach of duty was the foreseeable and direct cause of the harm you suffered.

You must prove each one of these elements to win. Failing to prove even one element will cause you to lose the case.

Examples of Burden of Proof Standards

The law uses several different standards for the burden of proof, depending on the circumstances. The following are some of the most prominent.

A Preponderance of the Evidence

A preponderance of the evidence is the standard you use for a negligence claim and for almost all other personal injury claims. You meet this burden when you prove to the judge or jury (depending on whether there is a jury trial) that your assertion is more likely than not to be true. This standard is not particularly demanding to meet.

Affirmative Defenses: Reversing the Burden of Proof

Normally, all the defendant in a personal injury claim has to do to win is to prevent you from proving your claim by a preponderance of the evidence. If the jury is only 49% convinced on causation, for example, you lose. 

In an affirmative defense, however, the defendant takes the initiative to assert that, “Even if everything the plaintiff says is true, I should still win because of X.” “X” is the affirmative defense. 

Keep in mind that in the event that the defendant asserts an affirmative defense, they must prove it by a preponderance of the evidence. 

Some options for an affirmative defense appear below:

  • Wrong venue (court jurisdiction) for the case;
  • Expiration of the statute of limitations deadline for filing a lawsuit;
  • Federal law has precedence over the plaintiff’s claim;
  • The plaintiff assumed the risk of being injured;
  • The plaintiff failed to reduce or mitigate their damages;
  • The plaintiff was acting in self-defense or in defense of another person; or
  • The plaintiff was partially at fault (this can be a full or partial defense).

There are dozens of potential affirmative defenses.

Clear and Convincing Evidence

To win punitive damages, you need to prove by “clear and convincing evidence” that the defendant acted with “oppression, fraud, or malice.” Your evidence is “clear and convincing” if it shows that your claim is “highly and substantially more likely to be true than untrue.” 

This is a tougher standard to meet than “by a preponderance of the evidence,” but it is easier relative to the “beyond reasonable doubt” standard (see below). 

Beyond a Reasonable Doubt

The “beyond a reasonable doubt” standard applies to criminal prosecutions, not personal injury claims. Additionally, it is the prosecutor who must prove this, not the victim. All the defendant has to do to defeat the prosecution is to introduce reasonable doubt.

A Las Vegas Personal Injury Lawyer Can Help You Meet Your Burden of Proof

An experienced Las Vegas personal injury lawyer should know the  Nevada Evidence Code inside and out. They will know what evidence is admissible in court, what evidence is useful in settlement negotiations, and what evidence not to even bother with. 

If your claim is sizable, schedule a free initial consultation with an experienced personal injury lawyer from De Castroverde Accident & Injury Lawyers at (702) 222-9999.

Areas We Serve

At De Castroverde Accident & Injury Lawyers our personal injury attorneys serve the following localities: Angel Park, Anthem, Boulder City, Downtown Las Vegas, East Las Vegas, Gibson Springs, Green Valley, Henderson, Lake Las Vegas, MacDonald Ranch, McCullough Hills, Mission Hills, Paradise, Peccole Ranch, Queensridge, Reno, Seven Hills, Smoke Ranch, Spring Valley, Summerlin, The Lakes, The Strip, Whitney, and more.
We also represent accident victims in Oakland, CA.

About Our Firm

De Castroverde Accident & Injury Lawyers, located in Las Vegas, NV, is a personal injury law firm established over 30 years ago.
We have 100+ years of combined experience securing hundreds of millions for injured people throughout Nevada. If you’ve been injured due to someone else’s negligence, contact us today to discuss your case.

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