the , the wins.” But if you think those rules are driven by truth- finding or fairness, they’re not. Rather, On Reconsideration they seem to exist for the sake of having a common framework on which every BURDENS OF stakeholder in the dispute can rely as pro- viding the terms of engagement. OR BURDENS ON TRUTH? Let’s look at this more carefully.

Burden of Proof Why do we have a ? Why KENNETH R. BERMAN does it belong to the party on the left side The author is a partner at Nutter McClennen & Fish LLP in Boston and the author of Reinventing of the v? Is this a good thing? Is there a Preparation: Unlocking the Secrets to Testimonial Success (ABA 2018). better way to do it? These questions are easy to on the criminal side. On the civil side, not so much. In a criminal case, the burden of proof is on the government, and it’s a heavy one. The government might have a strong case and great evidence to support it, but if the government fails to foreclose a simple doubt, that doubt, if reasonable, will al- low a defendant who committed a crime Two young siblings approach a parent. Only one can be telling the truth, but the to go free. “Tracy took my hairbrush,” says Alex. truth cannot be discerned from a mere This serves an important policy: “I did not. It’s not her hairbrush. It’s accusation and denial. Depriving a person of liberty is so destruc- mine. She took it out of my room, so I took Actually, there isn’t a single accuser. tive to the defendant’s humanity and po- it back.” Each child is an accuser, accusing the tentially so harmful to the community’s The parent must resolve the dispute. other of having taken something of theirs. conscience that we need ample protec- Who has the burden of proof? And each is a denier, denying having done tion against mistaken outcomes. We also Under our justice system, that’s easy anything wrong. need this protection to curb zealots within to answer. Alex does. Alex claims own- Of course, only one child has posses- the government from using the levers of ership. Tracy has possession. Alex has sion, and a convenient maxim says that a prosecution to terrorize those who are accused Tracy of a : conversion. In possession is nine-tenths of the . But innocent but disliked. So we guarantee our system, the accuser has the burden why should that matter? If Tracy had a lawyer, a , the right to of proof, and the opposing party’s pos- come to the parent while the brush was confront and interrogate their accusers, session is presumed to be rightful until still in Alex’s room, their roles would be the right to remain silent, the right not proven otherwise. reversed. Tracy would be claiming theft, to be convicted by improperly obtained But who should have the burden of Alex would be in possession, and Tracy evidence, and the right to have their guilt proof? That’s not so easy to answer, at least would have the burden of proof. or innocence determined by a neutral jury. not on the civil side of the justice system. Does Tracy’s entering Alex’s room and And on top of that, we give the govern- Not having heard any evidence, the taking the hairbrush justify shifting the ment the burden of proving the case be- parent has no basis to give even the burden of proof to Alex? yond a , something ap- slightest benefit of the doubt to either It seems that our civil justice system proaching a moral certainty. sibling. Two children are arguing over has developed procedural rules of con- These safeguards no doubt allow some ownership of a hairbrush. Each makes venience, rules like “the plaintiff has the criminals to walk. But we tolerate some the same claim: “I am the true owner. My burden of proof” and “if the plaintiff fails mistaken acquittals for the sake of avoid- sibling is falsely claiming that I am not.” to persuade you by a preponderance of ing mistaken convictions. A wrongful

Published in Litigation, Volume 47, Number 2, Winter 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be 1 copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. conviction is an offense against morality. it revealed the strong maternal bond on made the most sense and to rule for that Not so for a wrongful acquittal. which Solomon could make the right party. They would say to weigh the evi- That explains why the government has decision. dence, weighing whatever evidence fa- the burden of proof in a criminal case and Assigning a burden of proof would vored a proposition against the evidence why the burden is so high. But it doesn’t have had no relationship to discovering that opposed it, without reference to a explain why, in a civil case, the burden of the truth. Not then. And not today. burden of proof. Jurors would decide the proof belongs to the plaintiff. For reasons unrelated to truth-finding, case by crediting whatever evidence they Let’s look at one of the oldest and most the burden of proof advantages one side at found the most believable, pretty much famous legal disputes. When two women the expense of the other. It tilts the play- like the Solomonic model. went to King Solomon, each claiming to ing field against the party who has it. If Today though, as the law has evolved, be the mother of the same baby, it would that party fails to persuade the fact find- the burden of proof belongs to the accus- have been terribly unfair had Solomon er that the party’s contention is true, that er. That favors the accused, the defendant. assigned the burden of proof to either of party loses, even if the contention is true. The accuser may have the truth on her side, them. To whom should he have assigned The party without the burden of proof but if she can’t persuade the adjudicator it? To the first woman who approached gets the benefit of the doubt. to believe her, then the accused, without him, claiming to be the true mother? To This isn’t to say that burdens of having to prove anything, will escape any the woman who happened to be holding proof are necessarily bad. It’s only to consequence and justice won’t be done. the baby when the claim was made? say they’re unnatural. They’re a human Had there been burdens of proof back invention, not driven by truth-finding. then as we now know them, Solomon They serve other purposes. For reasons unrelated might have said to the first woman: You’re As we’ve seen, in criminal cases claiming to be the true mother and that they’re meant to keep innocent people to truth-finding, the other woman is not. So you have the out of jail. But what purpose do they burden of proof. If you fail to persuade serve in civil cases? the burden of proof me that your claim is true, or if I find the Sometimes, a statute or common-law evidence evenly balanced, then you’ll lose, rule will assign issue-specific burdens of advantages one side and I’ll declare the other woman to be the proof for policy reasons. For example, to true mother. benefit accident victims, a statute might at the expense of the But that would have been arbitrary. make the vehicle owner vicariously lia- Were the evidence inconclusive, the wom- ble for the driver’s negligence, unless the other. an would have lost simply for coming for- owner proves that the driver was not op- ward first. And had Solomon given the bur- erating the vehicle for the owner’s benefit. So how did we move from the evenly den of proof to the other woman, it would Or to protect individuals from undeserved balanced instructions of the early 18th cen- have been equally arbitrary, with an equal reputational harm, a party asserting , tury to the tilted instructions we use today? chance of an unjust outcome. After all, whether as a claim or , must prove Some procedural rules are codified in what hung in the balance was the awesome it with clear and convincing evidence. the Federal Rules of and responsibility of uniting the child with the But aside from specially created bur- its state analogues. But they don’t mention true mother. Should such an outcome turn dens of proof on specific issues, what the burden of proof. on how the burden of proof is assigned? truth-seeking, justice-promoting ends Other procedural rules are nested in Solomon didn’t think so. Determined to are served by placing a general burden of case law. Those rules evolve. They mu- get his decision right, he neither needed proof on plaintiffs? tate. They creep into a case through skill- nor wanted a burden of proof. Applying a ful advocacy. That case then becomes a burden of proof would have risked pro- precedent, and a precedent often repeated ducing an outcome dependent on process. The Evolution of Burden of becomes a norm. Over time, it becomes a Instead, he only needed evidence. Proof legal article of faith. And he found it. By threatening to Consider how cases were decided in the That’s how the civil burden of proof cut the baby in half, he caused the true early 18th century before burdens of proof got to where it is today and, according mother to scream in horror and to offer evolved to what they are today. Back then, to scholarly research, where it has been to abandon her claim to spare the baby’s judges would tell juries to let their con- since probably the middle to latter part life. That reaction was the evidence, for science guide them as to whose evidence of the 19th century.

Published in Litigation, Volume 47, Number 2, Winter 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be 2 copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Some argue that the burden of proof offered by the party who has with the general burden of persuasion al- belongs to plaintiffs to discourage frivo- the burden of proof. For that reason, that together? Why do we need it? Yes, it estab- lous suits. That might be a post hoc ar- party not only must offer enough evidence lishes who wins in the event of a tie, but gument to preserve the status quo, but it to prove that the claim is more probably how fair is that? In tennis, ties are unac- doesn’t seem related to how the burden of true than not, but also must make jurors ceptable. The match simply isn’t over until proof evolved. Nor is the burden of proof a care enough to do their job and to disregard one player wins on the merits. Shouldn’t particularly potent weapon against frivo- the judge’s permission to be arbitrary about we expect the same from the civil justice lous suits. We have so many other mecha- whether to credit any testimony at all. system? nisms: Rule 11, abuse-of-process claims, Put another way, the party with the bur- Wouldn’t it be an improvement if the anti-SLAPP statutes, bad-faith fee-shift- den of proof has the practical burden of rules left no room for a tie and required ing statutes, the Rules of Professional moving jurors from a state of indifference adjudicators to choose between one side Conduct, dispositive motions, and the gen- to a state of caring about the outcome. That or the other, based on the totality of the erally high cost of litigation, to name a few. may be a far weightier burden than simply evidence and on which side had the bet- For those reasons, eliminating the offering sufficient, logical evidence on each ter case, without trying to apply a bur- burden of proof would hardly open the element of a claim. A failure to meet this den of proof? Is there a reason not to be floodgates to more frivolous litigation weightier burden will doom the case. Solomonic in this sense? than what the current machinery stops. In combination, those two instructions And consider the practical effect of If a suit is frivolous, if the facts are weak can make it easier for defendants to win. the persuasion burden. It handicaps the or the case law hostile, the suit will fail Under those instructions, jurors who lean plaintiff and gives the defendant a big lead. and get flushed away, regardless of who toward avoiding confrontation or avoiding If you doubt that, do this thought experi- has the burden of proof. the cognitive dissonance that comes with ment: Say you represent only defendants. So what justice-promoting purpose making the wrong decision could easily How much more concerned would you does today’s burden of proof serve? What conclude that the evidence is equally bal- be if, in your next trial, no one had the relationship does it have to the delivery anced. But if they do that, the default rule burden of proof and jurors were told of true civil justice? To understand just takes over and the defendant wins, not be- that they had to evaluate all the evidence, how much the civil burden of proof dis- cause the jury thought the defendant was credit the evidence that made the most advantages the party who has it, consider in the right but because the jury found it sense to them without regard to which the combined effect of two common jury cognitively difficult to choose between side offered it, and apply the law to the instructions. The first goes like this: two conflicting versions of the truth. facts they found based on the evidence so credited? Now imagine you represent only The plaintiff has the burden of proving plaintiffs. If the trial were conducted un- its claim by a preponderance of the evi- A Fairer System der those same rules, how much happier dence. For the plaintiff to meet this bur- What would be fairer? Let’s start with would you be? den, you must be persuaded by the evi- the burden of production, who goes first. We often assume that whoever wrote dence that the plaintiff’s claim is more Instead of a rule that automatically puts the rules was right. When rules have been probably true than not true. the burden of production on the plaintiff, around a long time, they become like gos- we could do what the National Football pel. We assume they serve a salutary pur- And the second goes: League does: The winner of a coin toss pose and the interests of justice, without could decide whether to go first or let the asking how we got them or whether they In deciding the facts, you may have to other side go first. As a consolation, the make sense. So no one should begrudge a decide which testimony to believe and loser of the toss could decide whether defense counsel for harnessing the ben- which testimony not to believe. You to present the first or efits that the civil burden of proof offers. may believe everything a witness says, last. Some modifications might need to be But if a commission were formed to fig- or part of it, or none of it. What is im- made for multiparty cases or bifurcated ure out how to deliver better justice, and portant is how believable the , but variations could be developed if the commission were to list some rules were, and how much weight you think to handle special situations. for reexamination, maybe the commission their testimony deserves. Now the bigger challenge: Other than should consider adding the civil burden when some policy reason allocates the of proof to the list. q The second instruction gives the jury persuasion burden for certain issues license, if it wants to, to disregard all the (fraud, for example), what if we dispensed

Published in Litigation, Volume 47, Number 2, Winter 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be 3 copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.