Who Has The Burden of Proof in Personal Injury Cases? 

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In order to prevail in a personal injury lawsuit, the plaintiff must meet the burden of proof on every element of each of their claims. This requires that they (or their attorneys) convince the judge or jury of their claims beyond a certain level of doubt. If the plaintiff does not meet the burden of proof, the defendant will not be held liable and the plaintiff will lose their case. 

The burden of proof in personal injury cases is a preponderance of the evidence. Proving a claim by a preponderance of the evidence means that the plaintiff has convinced the judge or jury that it is more likely than not that their version of events is what actually occurred. This being said, it is helpful to have an experienced personal injury lawyer to help in proving a claim.

Proving Every Element of a Claim

The plaintiff cannot just prove their case as a whole by a preponderance of the evidence, but rather, must meet this burden for each element of a claim. For instance, if the plaintiff is suing the defendant for negligence, he or she must prove each element of negligence by a preponderance of the evidence. So, the plaintiff must prove that the defendant owed them a duty by a preponderance of the evidence, that the defendant breached that duty by a preponderance of the evidence, that they suffered an injury by a preponderance of the evidence, and that the defendant’s breach caused their injuries by a preponderance of the evidence. 

The judge or jury will have the final say as to whether the plaintiff has met the burden of proof. If the plaintiff fails to meet the burden of proof on even one element of their claim, they will lose their case. 

The Defendant’s Burden of Proof

The defendant is not required to prove that their version of events is true or convince the jury of an alternative version of events than the version the plaintiff is alleging. All that is necessary for the defendant to prevail is for the judge or jury to believe that the chances that the plaintiff’s version of the facts is false is 50% or higher. 

However, there is one exception to this rule. In certain instances, the burden of proof will also apply to the defendant. The burden of proof shifts to the defendant if the defendant raises an affirmative defense. An affirmative defense occurs if, regardless of whether the plaintiff successfully proves each element of their claim, the defendant proves additional facts that defeat the plaintiff’s claims. A defendant must prove an affirmative defense by a preponderance of the evidence. 

An example of an affirmative defense is the doctrine of assumption of the risk, whereby the plaintiff assumes the risk of injury by participating in an event, such as a sporting game. Even if the plaintiff proves each element of their claim against the defendant by a preponderance of the evidence, the plaintiff will still lose the case if the defendant can successfully prove the affirmative defense of assumption of the risk.

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L Proctor
August 30, 2022.
My experience with Cohen &Cohen was beyond my expectations. Jill did an amazing job with negotiating on my behalf and got me way more money than I anticipated. Thank you for having my back.
Ebony Stoutmiles
June 23, 2022.
To say that I am happy with the outcome of my case is the understatement of the century! Jill Stanley is a BEAST at what she does. That is the only way to explain it. She takes no prisoners. She and her team are very skilled and knowledgeable. I am so happy I trusted them to do their job and rolled with Jill's suggestions. I would choose Jill again 100 times. She settled my case for more than I imagined I would receive. I was literally in tears. It is the best feeling to know my pain isn't for naught. Wayne Cohen and Kristopher Yorke were nothing short of amazing. They have the patience of saints. I'm 100% certain that I got on their last nerves with my frustration and tears at every other call I had with them. Being in pain and wanting to just be able to heal was all I could focus on, but they helped me realize that I also had to focus on the bigger picture (the case) so I could put this piece behind me. As a high-strung individual with anxiety, it was hard for me to not worry and let them do their jobs, but they reassured me all of the time that they had this. To be injured before the start of the pandemic and have to receive regular, weekly treatment while others are able to stay home is anxiety inducing. I was in pain, I was anxious, and I was just hoping it all worked out. It more than worked out. I hope Jill, Siri, and Kris know how much their hard work and "hanging in there" meant to me. I am eternally grateful. I can't recommend you all enough. If you choose this law firm, you won't be sorry!
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June 3, 2022.
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May 25, 2022.
COHEN & COHEN ARE THE BEST I WAS INVOLVED IN A REAR END CAR CRASH AND 2 YEARS LATER I HAVE RECEIVED MY SETTLEMENT I AM VERY EXCITED TO SAY BRYAN!!! IS THE MAN HE INSURED THEY WILL TAKE CARE OF ME AND THEY DID 100% ANY QUESTIONS I ASKED THEY WERE ANSWERED. Jill and SIRI WAS ALSO REMARKABLE AND SHOWED THEY REALLY CARED I RECOMMEND COHEN &COHEN TO ANYONE THEY ALSO MADE SURE I GOT MORE THAN EXPECTED WHICH WAS AMAZING I APPRECIATE YOU GUYS THANK U💯
Jose Rivera
May 25, 2022.
The legal team at cohen & cohen did a great job I really appreciate the hard work on gating my compensation in a fair amount of time. Special thanks to Kris for a wonderful job
Lea Harvey
May 25, 2022.
I had a great experience with the team at Cohen & Cohen. From my intake attorney, Adam, to the paralegal, Bryan, who worked with me regularly for months to document and prepare my case, to Jill, the attorney who secured my settlement, I feel fortunate to have had their representation and expertise on my side.
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May 19, 2022.
Kris was phenomenal. Spectacular communication & knowledge in regards to my case. Would definitely return if I needed more legal services. 100% definitely recommend.