Standards of Proof in Civil Cases: Preponderance of Evidence and Clear and Convincing Evidence

You may have heard the phrase “burden of proof.” It’s a staple in crime dramas and true crime TV shows, where the prosecution must meet its burden of proof to convict a criminal. In civil lawsuits, plaintiffs also have a burden of proof, though the standards and requirements differ from those in criminal cases.

There are three basic standards of proof. Criminal courts use the highest standard, which is “beyond a reasonable doubt.” Criminal cases must meet the strictest requirements because the defendant’s liberty, or even their life, is at stake. The prosecution must present evidence that proves to a jury that the defendant committed the crime.

Civil courts use lower standards of evidence. In a civil case, the plaintiff bears the burden of proof. Since the plaintiff is usually an individual or a business, they are not held to the higher standard of a criminal case. The defendant’s guilt results in a monetary settlement or injunctive relief, not prison time.

Lower legal standards give both plaintiff and defendant a fair chance in civil court. But reaching this standard can still be difficult. Both parties will want to work with a litigation attorney to advocate for them in court.

Civil Standards of Evidence

There are two primary evidentiary standards used in civil court, including:

• Clear and convincing evidence
• Preponderance of evidence

The nature of the case determines which standard is used. Different jurisdictions may have different requirements for the nature of the evidence presented.

What Is “Clear and Convincing” Evidence?

This standard requires that evidence be “substantially more likely to be true than untrue” (Colorado v. New Mexico). This intermediate standard of evidence is higher than the preponderance of the evidence standard used in most civil cases, but lower than the reasonable doubt standard used in criminal courts.

Both civil and criminal courts use clear and convincing evidence. The court must consider not only the amount of the evidence, but also its quality. This includes the veracity of the evidence and witnesses.

This standard appears where important civil rights are at stake, such as fraud, termination of life support, or involuntary hospitalization. It is also seen in affirmative defenses, where the defendant does not dispute the facts and must provide justification for their actions after admitting they committed the offense.

What Is a “Preponderance” of the Evidence?

Preponderance of evidence requires that the plaintiff’s proof be “more likely than not” or 51%. The level of evidence needs to be sufficient to show that the defendant caused the plaintiff’s harm.

Preponderance applies in most types of civil cases. Personal injury cases, contracts and business disputes, and other civil actions use this lower level of proof. This is the most common of the civil standards.

Burden of Proof in Practice

Imagine you have a personal injury lawsuit. In this type of case, as the plaintiff, you have the initial burden of production. The burden of production means presenting enough evidence to demonstrate you have a legal case. This is not the same thing as meeting the burden of proof. All you must do is show a court that a legal case exists.

Once your case reaches court, you have the burden of persuasion. This means presenting your evidence to the judge or jury in a way that proves your case. These two burdens, production and persuasion, form the burden of proof.

Preponderance of the evidence consists of witness testimony, credible evidence, and a presentation that shows it is more likely than not that your version of events is correct.

Once you have presented your case, the defense may present its side. “Burden shifting” means the opposing side must present their case, using the same level of evidence as the plaintiff or prosecution.

Civil vs. Criminal Burden of Proof

In civil cases, the plaintiff has the burden of proof. In criminal cases, the prosecution has that duty. The party bringing the case to court always has the first burden of production to show the court that a case exists. If there is no case, the judge may dismiss the claim or charges.

The criminal standard is always beyond a reasonable doubt. Burden shifting requires a defendant to present a case if they wish to present an affirmative defense. In a civil court, burden shifting often allows a defendant to rebut a plaintiff’s claims or present an alternative scenario for the plaintiff’s charges.

Criminal cases have higher burdens because the consequences and penalties are higher. Civil cases result in monetary damages, but not prison time.

Get Legal Advice From a Civil Litigation Attorney

In some cases, a plaintiff can present their own evidence. However, the legal system is complex and rife with pitfalls. If your claim requires expert witnesses or other complex presentations, consider talking to a personal injury lawyer  or another type of litigation attorney in your area as soon as possible.