When a personal injury lawyer pursues a case, there is a legal obligation to prove their argument. At different stages of a case, though, this burden can move around. Take a look at those stages and how the burden of proof applies in each situation.
Insurance Claim
The majority of injury cases will start as claims filed with insurance companies. At this stage, there isn't an overt burden proof.
Instead, a personal injury attorney will send a demand letter to the insurance carrier of the party they believe to be at fault in the case. A claims adjuster will be assigned to the case, and they will examine the demand letter and supporting documents the lawyer has sent. At this stage, the adjuster's responsibility is to assess the validity of the claim. They will look at whether the statements appear to be true and if the compensation requested matches what they've seen in similar cases — and this operates as functionally the burden of proof.
If the claim is deemed invalid, the adjuster will reject it. You and your personal injury lawyer will then have to decide whether suing is worth the effort. If the claim is considered valid, the adjuster may either accept the compensation request and pay the claim, or make a counteroffer and negotiate.
Lawsuit
Presuming that either the claim was rejected or negotiations failed, a claimant may elect to sue. The burden of proof at this stage becomes "more likely than not." This means the claimant, who now becomes known as the plaintiff, must demonstrate that their version of events is more likely to be the truth than not. Essentially, this means the burden of proof is 51%.
It's worth noting that this is different than liability. Liability is assigned as a percentage of the responsibility shared for the events that happened between the parties to the incident. In most states, liability has to be proven to be at least 51% on the defendant before any compensation will be required.
Motion for Summary Judgment
The plaintiff or the defendant each has the right to make a motion for summary judgment. This is a request that a judge settle the matter then and there. At this stage, the burden of proof is on whoever brings the motion. The standard for summary judgment is that there are no meaningful disputes of the material facts, and this usually based on physical evidence, police reports, testimony, and medical reports. Reach out to a personal injury lawyer, like those at Winstein, Kavensky & Cunningham, LLC., to learn more.
Share22 October 2019
The court system can seem frightening and confusing if you're not used to using it. Whether you've been accused of a crime and you're trying to navigate the criminal court system, or you're being sued or considering suing someone else in civil court, you need an advocate who knows their way around. That's why finding the right lawyer for the job is so important. In this blog, I'll be helping you learn how to choose the right lawyer for the job and sharing information about legal strategies and courtroom procedures that you may come across when you have a legal problem. You need accurate information to help you understand the court system, and this blog can help.