Preponderance of the Evidence
Most people are familiar with the phrase, “proof beyond a reasonable doubt,” from television. That phrase applies to criminal trials. A jury should not convict a criminal defendant unless the state has proven “beyond a reasonable doubt” that the defendant is guilty of the crime. Well, in civil cases, where the specter of incarceration and the death penalty does not exist, the plaintiff has the burden of proving her case by “a preponderance of the evidence.” This means that the plaintiff must prove that her assertions are more likely true than not. If she has proven her case to a 50.1% degree of certainty, then she wins. On the other hand, if the judge or jurors believe the plaintiff and defendant to the same degree, then the plaintiff loses. That is only a 50% level of proof. In civil cases, the tie goes to the defendant.
It can be difficult for the uninitiated to conceptualize the preponderance of the evidence standard. Here is a helpful analogy.
Scales of Justice
Sometimes judges describe the evidence in terms of a scale that is even on both sides at the beginning of the trial. One side of the scale represents the plaintiff and the other side represents the defendant. During trial, evidence is presented. Some of this evidence weighs in favor of the defendant and some will weigh in favor the plaintiff. After trial is over, if the scale is no longer even, but tips even slightly in favor of one of the plaintiff, the plaintiff wins.
In theory, the plaintiff is at a slight disadvantage at the beginning of trial because if the plaintiff does nothing, defendant automatically wins. The plaintiff must prove her case in order to prevail. In reality, however, plaintiffs do not bother bringing a lawsuit to court unless they think they can win it. No lawyer would litigate a case unless there was some persuasive evidence to present. So the real question is how heavily the judge or jury will weigh the evidence. How persuasive will they find the evidence?
Clear and Convincing
A higher standard of proof is “clear and convincing.” Under this standard, the plaintiff has to present evidence that shows that her assertions are substantially more likely true than false. Relating back to the “scales of justice” analogy, the scale would have to tip very much in favor of the plaintiff in order to triumph. This standard is used in certain situations when the stakes are higher than a typical civil trial, but do not rise to the level of possible incarceration or the death penalty.
For example, in the personal injury context, a plaintiff seeking punitive damages from a defendant must prove by clear and convincing evidence that the defendant intentionally misbehaved in a way that he knew would hurt the plaintiff (or someone like the plaintiff.) Florida Statute 768.72. Another example is proving medical malpractice. Doctors have difficult jobs and it is not always easy to determine whether a doctor acted competently during a crisis. Furthermore, doctors who have been found guilty of multiple acts of malpractice can lose their license. Therefore the law requires that you use an expert witness, which is a doctor who works in the same field of medicine, and that you prove your case by clear and convincing evidence. Florida Statute 456.50. A third example is the plaintiff who has been physically injured by a profitable criminal enterprise or by human sex trafficking. A plaintiff that has been physically injured as a result of one of these can win three times her medical costs as an award from the court, but she has to prove her case by clear and convincing evidence. Florida Statute 772.104
Motion for Summary Judgment
In certain parts of trial, the standard of proof effectively changes. For example, if both parties agree on all materially relevant facts and they simply disagree on issues of law, one party may prevail with a motion for summary judgment as opposed to litigating in a merits trial. A motion for summary judgment is a document explaining why the law is in favor of the movant (i.e., the person writing the motion.) If the motion is granted, that party (the movant) wins on all the issues the motion discusses. You can win your case without ever going to trial. Therefore, it is harder to win with a motion. When a judge is considering whether to grant or deny a motion for summary judgment, he must give all benefit of the doubt to the non-movant (i.e., the person who did not write the motion). This means that even if the scale tips slightly in favor the movant, the judge will seriously consider whether there is any doubt that could resolve in favor of the non-movant. If there is such doubt, the motion is denied.