Burdens of proof in a civil lawsuit

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hi attorney steve andre licensed

practice law in california and arizona

and we are back to the attorney steve

whiteboard all right so this video we're

talking about burdens of proof you may

have heard this and you may have just

got served with a lawsuit you may be

filing a lawsuit you may be wondering

who has to prove the case who proves

what is it do I have to prove it or do

they have to prove it now

normally when a plaintiff files a

complaint okay here's your plaintiff and

they file a complaint normally in most

cases the plaintiff is going to bear the

burden of proof okay in other words

they're going to have to prove what

they're saying and their complaint is

true okay they're going to have to come

up with evidence evidence okay some

things are easy to allege and hard to

prove like frauds intent to defraud

specific actual fraud it sometimes can

be easy to allege and hard to prove but

the burden of proof is on the plaintiff

okay now in general let's talk about

burden of proofs for just a second

there's a lot of you a lot of you have

probably watched a lot of TV and you see

criminal law cases okay

usually in a criminal law case there's

my little burden of proof

there's my little burden of proof chart

I know it's not really neat but this is

attorney Steve whiteboard we do the best

we can with what we have here so but the

most demanding burden of proof in the

legal system is what's known as beyond a

reasonable doubt beyond a reasonable

doubt okay so let's just call that bar

bar okay beyond a reasonable doubt that

means that the and usually in a criminal

case by the way it's the prosecutor or

the Attorney General or somebody that

has the burden of proof it's not your

plaintiff in a civil suit in a criminal

suit it is your prosecutor it's the

person charging you with a felony or

misdemeanor they have the burden of

proof to show it be around a reasonable

doubt now I'm not a criminal attorney so

I'm not going to go into all the little

minutia philosophical conversation about

what beyond a reasonable

aníbal doubt means I think you know it

means a doubt that's it if there really

can't be a good explanation as to as to

why a defendant did or didn't do

something it has to be sufficient it's

almost better just to recite the rule

beyond a reasonable doubt I mean if

there's a reasonable doubt something

that could be true that's plausible then

maybe it's not beyond a reasonable doubt

so that's your most demanding burden of

proof that you'll find in a court of law

another one that you often see is what

we call clear and convincing okay clear

and convincing evidence now this for

example this pops up in our Department

of real estate or Bureau of real estate

cases where somebody is being charged

with disciplinary violations in regards

to their real estate license okay so

where you have a broker that may have

lost trust funds commingled money

committed dishonest acts of dishonesty

lling real estate fraud those kinds of

things you end up in this administrative

hearing process where you're fighting

for your license in those cases the

standard of proof is very convincing

evidence okay what's that well it's less

than beyond a reasonable doubt but it's

more than the next one I'm going to tell

you about which is the preponderance of

the evidence ho we'll call that PO okay

all this C and C okay so the standard

that normally applies in a civil lawsuit

is the preponderance of the evidence


okay that's usually what a plaintiff has

to show this person committed this kin

Larson kin committed a fiduciary duty

breach a breach of fiduciary duty you

have as plaintiff diverted to prove that

by a preponderance of the evidence now

what's the preponderance of the evidence

you know some people call it the you

know if you think of the hands of

justice it's the more likely than not

it's the 51 percent versus the 49 that's

kind of what you're looking at when

you're talking about a preponderance of

the evidence and this is your typical

and I say typical this is

typical civil lawsuit here okay and

that's the typical burden of proof that

you're going to have again in

administrative VRE cases in cases of

showing intentional fraud sometimes you

have a higher standard of proof that has

to be more certain because there's

something more serious on the line for

example somebody's livelihood their real

estate license their ability to make

money so that's - when you pick your

standard up okay it's the more at stake

not to say that there can't be a lot at

stake here I mean there could be

hundreds of millions of dollars at stake

here there's no question but you know

this is the law in for example

administrative hearings in California

real estate licenses and then this is

your typical standard across the country

for criminal cases so you can see this

gives you the general framework of how

it's going to go now when you're filing

a suit or responding to a lawsuit you

need to look at the law there in a

typical plaintiffs complaint you could

find lots of allegations there are lots

of causes of action in other words you

could have a cause of action for elder

abuse you can have one for conversion

you could have one for fraud you could

have one for breach of fiduciary duty

you could have a cause of action for

negligence so you're gonna you're going

to want to look those up and see if

there's any special rules let me give

you an example

financial elder abuse has some special

rules in California where you can fight

you shift the burden of proof shift the

burden of proof off the plaintiff onto

the defendant okay why would you want to

do that because it would be nice in some

circumstances to make them prove that

the transaction was fair instead of

forcing plaintiff who may be an elderly

citizen who doesn't have the records or

doesn't have all the memory of

everything that's gone on there may be

circumstances where you can ledge undue

influence and duress and construct your

fraud close fiduciary relationships and

try to shift the burden of proof on

the defendants so you really need when

you're involved in a lawsuit to look at

the causes of action and figure out

who's going to have to prove what okay

so that's a basic attorney Steve general

overview of burden of proof so if you

have questions in your case you're

getting sued you feel like you have to

file a lawsuit you can't get your issues

resolved give us a call we can be

reached at eight seven seven two seven

six five zero eight four or find me on

the web at attorney Steve net attorney

Steve dotnet we thank you for listening

we'll see you again have a great day bye