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Chapter 7

TRIAL PROCEDURE


ChapterScope This Chapter examines the mechanics of trials, both jury and non-jury. The most important concepts in this Chapter are:

  • Two meanings of “burden of proof”: There are two kinds of “burden of proof which a party may have to bear. Assuming that the issue is called A:
    • Burden of production: The party bears the “burden of production” if the following is true: unless the party produces some evidence that A exists, the judge must direct the jury to find that A does not exist.
    • Burden of persuasion: The party bears the “burden of persuasion” if the following is true: at the close of the evidence, if the jury cannot decide whether A exists or not, the jury must find that A does not exist.
  • “Preponderance” standard generally: The usual standard of proof in civil actions is the “preponderance of the evidence” standard. A proposition is proved by a preponderance of the evidence if the jury is convinced that it is “more likely than not” that the proposition is true.
  • Summary judgment: If one party can show that there is no “genuine dispute of material fact” in the lawsuit, and that she is “entitled to judgment as a matter of law,” she can win the case without going to trial. Such a victory without trial is called a “summary judgment.”
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