The burden of proof is essentially is the requirement that the plaintiff must prove all of the elements of each claim or cause of action that he brings against the defendant. The concept of the burden of proof is derived from the Latin principle, “semper necessitas probandi incumbit ei qui agit”, meaning, “the necessity of proof always lies with the person who lays charges.”
In a civil case, the plaintiff must prove his case by a preponderance of the evidence. This means that he or she must prove liability and damages by showing that something is more likely so than not.
In general in most civil lawsuits, the defendant does not have to prove anything. It is the plaintiff who must establish facts that meet each element of his claim. So for example, in a negligence case a plaintiff must prove:
- That the defendant owed him a duty of care;
- That the defendant breached his/her duty of care;
- That plaintiff damages or injuries were proximately caused by the defendant's breach of his duty of care; and
- That the plaintiff actually sustained damages.
The plaintiff must prove each of the four elements of negligence in order to succeed with his lawsuit. In theory, the defendant does not have to do anything and if the plaintiff cannot prove all of the elements his/her case will fail. Of course, in practice the defendant attempts to poke holes in the plaintiff's case and attempts to discredit the plaintiff's facts and allegations.
In limited circumstances the defendant must prove a defense. In general, a defendant has a burden of proof to establish an affirmative defense and claims against a third-party.
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