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Burden of Proof: An Essay of Definition

Posted By Charlene Sabini, PP, CLP, ALP, Thursday, April 19, 2018
Updated: Wednesday, April 25, 2018

burden of proof. 1. A party’s duty to prove a disputed assertion or charge. The burden of proof includes both the burden of persuasion and the burden of production. 2. Loosely, burden of persuasion.

 

burden of persuasion. (1923) A party’s duty to convince the fact-finder to view the facts in a way that favors that party. • In civil cases, the plaintiff’s burden is usually “by a preponderance of the evidence,” while in criminal cases the prosecution’s burden is “beyond a reasonable doubt.” – Also termed persuasion burden; risk of non-persuasion; risk of jury doubt. – Also loosely termed burden of proof.

 

burden of production. (1893) A party’s duty to introduce enough evidence on an issue to have the issue decided by the fact-finder, rather than decided against the party in a peremptory ruling such as a summary judgment or a directed verdict. – Also termed burden of going forward with evidence; burden of producing evidence; production burden; degree of proof. 1

 


Burden of Proof in a Civil Lawsuit

When an individual files a civil lawsuit against someone else, the burden of proof rests on his or her shoulders. When the parties go to court, they each have an opportunity to tell their side of the story. Of course, if that was all that was needed, nearly every case would end in a “he said / she said” situation. The party who filed the lawsuit, called the “plaintiff” or the “petitioner,” must prove that the things alleged in the lawsuit are true and that the other party, called the “defendant” or the “respondent,” caused harm or damages.

The standard to which the plaintiff must prove his case in a civil lawsuit is quite different from the standard of proof required in a criminal case. In a civil case, it need only be proven by a preponderance of evidence, which means that it is more likely than not that the defendant’s actions caused the plaintiff’s damages. There are some types of civil cases that are considered to be more serious. These cases must be proven by clear and convincing evidence, which means that the evidence presented against the defendant must have a high probability of being true.2

Burden of Proof in a Criminal Case

In a criminal case, the accused person is by law assumed innocent until the prosecution proves that he is guilty. The burden of proof in a criminal case rests on the prosecution, with no requirement that the defendant prove that he is innocent. The standard to which the prosecution must prove the defendant’s guilt is much higher than in a civil case, as the defendant’s freedom is often at risk. In a criminal matter, the prosecution must prove, beyond a reasonable doubt, that the defendant did the deed.

There are a few circumstances in which a defendant may want to take action in proving his or her innocence. If the defendant wishes, for instance, to make a claim that he is not guilty by reason of insanity, the burden of proving that he was insane at the time of the crime rests on the defendant. Claims of duress or self-defense also require the defendant to prove the circumstances. 3

Again, the legal concept of the burden of proof encompasses both the burdens of production and persuasion. Burden of proof is often used to refer to one or the other. Burden of proof and burden of persuasion are also sometimes used to refer to the standard of proof.4

Shifting Sands of Burden

When the prosecution establishes a fact that tends to prove an element of a crime, the burden essentially switches to the accused, not necessarily to disprove the fact, but to raise a doubt about it. The defendant need not raise a doubt about every fact that the prosecution tries to prove—creating enough doubt about any point that’s crucial to a guilty verdict will suffice. Of course, the more convincing the fact is, the tougher the defendant’s burden is.

For instance, suppose the prosecution shows that, when searching the defendant, the police found a watch that store records reflect as stolen. In defense of a burglary charge, the defendant would probably have to give a plausible explanation for possessing the watch legally. By producing a receipt or testimony that the watch was a gift, the defendant would essentially shift the burden back to the prosecution. 5

Generally, the prosecution has the burden of proving every element of a crime beyond a reasonable doubt. But while a defendant isn’t required to prove innocence in order to avoid conviction, the prosecution doesn’t have to prove guilt to the point of absolute certainty. And despite the general rule that the prosecution bears the burden of proof, there are instances when the burden shifts to the defendant. 6

 

Juvenile Dependency Hearings: Burden of Proof

In nearly all cases where a government agency such as CPS (or DHS in Oregon) files allegations against you, that agency has the burden of proof. It is the job of the juvenile attorney experienced in juvenile dependency law to protect and fight for the client and against the allegations that are lodged against the client.

Standards of Proof in Juvenile Dependency Court

      Preponderance of the Evidence


Proof which is of greater weight or more convincing than the proof that is offered in opposition to it; that is, proof which as a whole shows that the fact sought to be proved is more probable than not. This is the standard of proof in Juvenile and Dependency cases including Jurisdiction Hearings.

     Clear and Convincing Evidence

Proof that results in a reasonable certainty of the truth of the fact or assertion in controversy. This is the standard of proof that is used in Juvenile and Dependency Court for disposition hearings. If the county CPS agency is seeking a disposition of family reunification over your family, the burden of proof rests with that government agency.

Real World Meaning: The burden shifts again to the county; their proof must be 70-80% more convincing or stronger than that of the opposing party (you).

     Reasonable Doubt (NOT used in juvenile court) 7

Juvenile proceedings are civil as opposed to criminal. Instead of being formally charged with a crime, juvenile offenders are accused of “committing a delinquent act.”

 

Conclusion

In summary, the burden of proof refers to the duty of a party making a claim to prove that the claim is true. The phrase is most commonly used in the context of criminal trials, where the defendant is presumed innocent until proven guilty. In a criminal trial, the obligation to prove the defendant's guilt belongs to the government. In a civil trial, it's the plaintiff (the party making a claim for civil damages) who carries the burden of proof. Because the burden of proof belongs to the party making the claim, the party against whom the claim is made is under no obligation to prove their innocence or to prove that their position is the correct one.

It's important to remember that burden of proof doesn't only refer to the amount of evidence presented. Rather, the quality of the evidence produced is as important as the amount of evidence presented. 8



  1. Black’s Law Dictionary, 223 (9th  ed. 2009)
  2. https://legaldictionary.net/burden-of-proof/, last viewed October 14, 2017

  3. Ibid.

  4. Burden of Proof, http://dictionary.findlaw.com/definition/burden-of-proof.html

  5. Burdens of Proof in Criminal Cases, https://www.nolo.com/legal-encyclopedia/burdens-proof-criminal-cases.html, last viewed October 14, 2017

  6. Ibid.

  7. Dependency Hearings: Burden of Proof, http://www.cps-lawyers.com/dependency-proof.html, last viewed October 14, 2017

  8. Brittany McKenna, Burden of Proof: Definition and Cases, http://study.com/academy/lesson/burden-of-proof-definition-cases.html

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Ask Eula Mae: Finding Time to Stay Certified

Posted By NALS Editorial + Marketing Board, Thursday, April 19, 2018
Updated: Wednesday, April 25, 2018

Dear Eula Mae:

I’ve been a legal assistant in real estate contracts for many years and my workload has grown with the company. It’s not too big to handle, but sure makes for a full day. I have my PLS certification, which is about to expire and I’m not sure if I want to stay certified. Part of this feeling is due to the workload and part is due to my busy family life with three teenagers at home. My life is full and my time is limited. I don’t know how I’m going to keep my certification.

 

—Stay Certified or Not in Cleveland



Dear Cleveland:

Where there is a will there is a way and fortunately for you, NALS has many ways to stay certified thanks to their online presence. There are so many ways for you to get CLE and most of them are on your own time.

Education is something that no one can take away from you. You can lose a job, a house, a car, etc., but no one can strip you of your knowledge. Your certification not only expresses your expertise in the field but your experience—a truly precious commodity in the legal field. You are not just another ‘assistant’ or ‘secretary’; you are a legal support professional—an earnest, worthy investment for any attorney or law firm. By letting your certification lapse, you are essentially cloaking a beacon of legal expertise and education.

First, look at what is required for your recertification and I’m sure you will find a way to get the credits you need. You worked hard to become certified and it is worth it to keep it—for now and for later!

Here are some suggestions:

  • Register for a webinar at NALS. A list of upcoming webinar and continuing legal education (CLE) events can be found at NALS.org/Events.
  • Read the @LAW magazine and take the respective quiz to earn education hours. 
  • Write an article for the NALS Docket eNewsletter. I know you can! You have a lot to say. You could talk about your NALS experience as a non-traditional legal person and what this has meant to you personally and for your job. Tell us about your local NALS chapter’s volunteering experience and your role as an officer. What is your proudest accomplishment at NALS and how has that impacted your life on the job? How can this information help other members? How have the skills that you gained from NALS helped you? How have your connections in the association helped you in your job, in NALS, and in your life? Docket newsletter article are 1000 words. These tend to be more personal in nature, but not necessarily.
  • Write an article for NALS @LAW. These articles are 2000 words about the law in action or the law itself. If you have ideas for an article, members of the NALS Editorial + Marketing Board will be happy to work with you to develop some article ideas. The goal is to get the most out of NALS.
  • Do you have mandatory classes that you have to take for your job? You can always send information on that to the Certification/Education Manager at NALS to see if it qualifies for CLE credit.
  • Teaching a session through NALS or through your chapter. You receive 4x the CLE credit for hosting or teaching a webinar/seminar/or workshop and, yes, this includes prep time.
  • If you enjoy reading or writing, you can always do self-study. You can earn up to 5 CLE credits for doing so.
  • Attend an online membership meeting. They are free and you can earn up to 2 CLE. Visit NALS.org/NOMM for all upcoming dates.
  • Stay active on our NALS social feed. The NALS Certification/Education Manager releases online certification quizzes over various areas of substantive law
  • Attend a conference. NALS conferences are notorious for being fun learning environments for all attendees. You will have time to meet the NALS Board of Directors, NALS Resource Center Staff, and NALS Pals from across the nation! NALS.org/PHX18
  • If you have the time to volunteer, you can join a national task force to earn CLE on certain tasks. 

And if ‘life happens’, just reach out to the NALS Resource Center and request an extension. NALS Resource Center will do anything in its power to help you succeed and maintain your certification.

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#IAMEULAMAE: Spirit of Pioneering

Posted By NALS Editorial + Marketing Board, Thursday, April 19, 2018
Updated: Wednesday, April 25, 2018
The next piece of this series on the Spirit of Eula Mae (stolen from the Disneyland Great Moments with Mr. Lincoln display) is Pioneering. In my mind, pioneering is being innovative and bringing others with you.

Eula Mae Jett, who founded NALS in 1929, was definitely a pioneer. Not only did she start a group for women, she started a group for women employed as legal secretaries. And this was in 1929, the year the Great Depression started and when the majority of working women were employed as maids, telephone operators, teachers, nurses, or clerical workers. I also have a feeling that in 1929, women were expected to have dinner on the table before hubby came home, so finding time to have a meeting to share knowledge and help each other would definitely have been a challenge.

When Eula Mae set out to get together with others in her profession to make everyone smarter, better at their professions, and better legal professionals, she truly had the spirit of a pioneer. She did something that hadn’t been done before in her profession.

NALS itself continues to be a pioneer. We have access to people employed in the legal field in all positions—not just one. We have members who are paralegals, legal secretaries, legal assistants, administrators, docket clerks, receptionists, filing clerks, people who work in title companies, banks, real estate companies, nonprofits, and others. NALS is THE premier association for legal support staff—ALL legal support staff. We aren’t exclusive, we don’t deny membership to those who qualify, and we have education that everyone can learn something from. 

I am so glad that NALS pioneered its way through the changing legal support profession and has maintained its position as an association that Eula Mae would be proud of. We can always use more people with the pioneer spirit to help NALS meet its goals. By volunteering on a committee, attending national conferences, special events, online webinars, online membership meetings, local meetings, authoring articles for the docket, inviting coworkers to participate, using your NALS network to impress your employer, and myriad ways that I haven’t even thought of, you can be a NALS pioneer. We have an obligation to help those following behind us to find their way in the legal profession. What better way to do that than through NALS?

Be like Eula Mae—be a NALS pioneer.

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Are Entities Singular or Plural?

Posted By Kathy Sieckman, PP, PLS-SC, ACP, Thursday, April 19, 2018
Updated: Wednesday, April 25, 2018

As we've learned before, a verb must always agree in number and person with the subject. See “Singular Verb, Plural Subject, Both . . . and, It's All About the Agreement” in the October 2014 NALS docket. But what if the "person" is an entity? Do you then use a singular or plural verb?


Typically, if you are talking about the entity as a unit, you use singular verb:

  • The committee meets on the third Thursday of each month.
  • The firm has earned many accolades.

If the entity is a company, it is usually treated as a unit. Just be sure that you carry the treatment as singular or plural every time you are talking about that entity. For instance:

  • ABC Corporation has ended its lease term. It is now looking for new office space.
  • NOT: "ABC Corporation has ended its lease term. They are now looking for new office space." This example is inconsistent in treatment. If you are going to treat ABC Corporation as a single entity, then it is looking for space.

If you want to emphasize that the members of the entity are acting independently, then a plural verb is correct:

  • The committee left the meeting together.
  • The staff have successfully staggered their vacations.
  • The jury left their notes in the jury box.

To help figure it out, replace the entity with "it" and replace members of the entity with "they" to make sure you are using the right verb. Using the examples above, replace the entity with the word in parenthesis to see how it works:

  • The committee (it) meets on the third Thursday of each month.
  • The firm (it) has earned many accolades.
  • The committee (they) left the meeting together.
  • The staff (they) have successfully staggered their vacations.
  • The jury (they) left their notes in the jury box.

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What Does A Strategist Do?

Posted By NALS Leadership Identification Committee, Thursday, April 19, 2018
Updated: Wednesday, April 25, 2018

Strategist is defined as a person who is skilled in making plans for achieving a goal or someone who is good at forming strategies.  So the question is: What can a strategist do for your membership? It is a vital competency for any organization. 

 

A strategist must set the stage for why strategy is an essential leadership responsibility while providing support and structure to any vision and concept.  Leaders with this quality want to develop the framework to use what is meaningful and adapts with change.

 

A strategist brings forward a plan and challenges other leaders to embrace it as a core value accompanied by enduring action. Strategy is not something to hand-off to someone else and it is not a shelf article, safely stored away.  Strategy and leadership need to be filled with purpose, consistency, and dynamism. Many leaders have not thought about their own strategies in a very deep way. Often, there is a curious gap between their intellectual understanding of strategy and their ability to drive those insights home.

 

Some leaders view strategy as something others do, something a consultant does.  If different levels within an association are to know what to do, how to do it, and why they should do it, then leaders need to develop a real, meaningful strategy that is attainable and actionable.

 

Change is the only constant. So strategy should be able to be adapted as conditions change. A strategy needs to be agile, re-visited, and made a part of an ongoing conversation and action. The strategist's responsibility is to ensure its adoption throughout the organization.  A strategist creates and supports a productive plan that incorporates members' interests in ways that promote leadership development.  The structure and forces of the association  will not change just because the strategist wants it to.   A strategist  needs to incorporate the structure of the membership in which they serve and determine how to navigate the plan of action.  The structure may not change, but membership can adapt. So, when the strategist makes decisions, he or she needs to be humble and seek out new perspectives.  Securing buy-in for any new plan is crucial to the strategist's success.  He or she knows the dynamics of the association and that failure could be an option, but the strategist refuses to accept failure as he or she works through the obstacles to produce a new plan. Remember courage creates change.

 

The LIC is looking for courageous strategists to serve at every level within NALS.  

 

If you have questions, please contact Brandi Hobbs, ALP; Kerie Trindle Byrne, PP, PLS, CP; Sherry Baran; Cathy Zackery, CLP; and Charniece Rollie at LIC@nals.org. 

 

If you or someone you know is interested in serving on the NALS Board you can find additional information along with the application here. Deadline August 1, 2018!

 

 

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