In this post, I’m going to go over something that might strike some of you as being extremely pedantic. My intent is not to be pedantic simply because I can, but instead, I’m hoping to illustrate a more nuanced point that hopefully will be of help to you.
Many people have heard the term “burden of proof”. The term is used widely, including in many statutes such as Section 500 of the California Evidence Code. Section 500 states:
“Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.”
In other words, you bear the burden to prove whatever it is you’re asserting, be that a claim, defense, etc.
When I was in law school, however, I had a professor who absolutely hated that term because he considered it complete nonsense. Instead, he said, the “burden of proof” is actually two separate independent burdens. The first is the burden of the party to produce evidence that supports the claim for relief, defense, or whatever else they are asserting. This evidence, obviously, has to meet various criteria. At a minimum, it needs to be relevant to the issues at hand, properly authenticated, and non-privileged. Once it clears those hurdles, then it might still not be admissible because the court you’re in has, for example, exercised it’s discretion to exclude it because it is more unduly prejudicial than it is probative.
As an aside, the authority that allows courts in California to do this is Section 352 of the California Evidence Code, which states:
“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Anyway, aside over, my point here is that instead of “burden of proof,” my professor drilled it into me and my classmates that it was actually two separate and independent burdens, the first of which was the “burden to produce” evidence.
Once a party had satisfied the burden to produce evidence in support of their defense or claim for relief, the second burden they had to meet was the “burden of persuasion.” In other words, once the party had produced its evidence, it then had to argue — persuasively, of course — how that evidence supported the defense or claim for relief they were pushing for. Unfortunately, you can satisfy only one of these burdens. For example:
- You can produce evidence, but then not argue persuasively how that evidence actually supports your case.
- You can argue persuasively why you should prevail in the case, but you might not have any evidence to support what you’re saying.
As a general rule of thumb, you need to satisfy both burdens in order to even have a chance at winning. Sometimes a failure to meet one of these two burdens is easily explainable. If you don’t have a lawyer, you might not know that you have to also argue how your evidence supports your case. You might think that producing your evidence is sufficient and that the evidence, for instance, speaks for itself. Similarly, if you don’t have a lawyer, you might think that your own testimony will be sufficient and that there’s no need for witness testimony, photographic evidence, email evidence, etc.
In summary then, the nuanced point that my professor felt so strongly about was to keep both burdens in mind: (1) the burden to produce evidence in support of your position, and (2) the burden to persuasively argue how that evidence supports your position. It has sometimes helped me to remember that distinction. Hopefully it helps some of you as well.
Andy Chen
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