TRIAL PROCEDURE

1. Both burdens not always on same party: The burden of production is not necessarily placed on the same party as the burden of persuasion. F,K&C, pp. 673-74. Indeed, the burden of production may itself shift throughout the course of the trial.

Example: A trial consists of only one issue, A, which P asserts and D denies. P starts out bearing initially the burden of producing some evidence of A. If he produces just enough evidence so that the judge finds that a reasonable jury might find that A exists, P has met his burden of production. If P produces so much evidence that he is, in the absence of evidence from D, entitled to a directed verdict, P has shifted the burden of production to D. If D now produces evidence, he can either make a jury issue of A (in which case neither P nor D bears the production burden anymore) or he can produce enough evidence so that P must once more meet the production burden, or suffer a directed verdict against him. See the diagram in F,K&C, p. 672.

C. What meets burden: In general, a party has met his burden of production on an issue, A, if he has given enough evidence to send that issue to the jury. He has met his burden of persuasion with respect to A if he has produced enough evidence to lead the jury “to believe that the existence of [A] is more probable than its non-existence.” J & H (3d ed.), pp. 316-17. Or as the persuasion burden idea is often put, a party bearing that burden with respect to proving A’s existence must demonstrate “by a preponderance of the evidence” that A exists. Id. at 243.

II. PRESUMPTIONS

A. Definition: A presumption, in the sense of the word relevant here, is a “convention that when a designated basic fact exists, another fact, called the presumed fact, must be taken to exist in the absence of adequate rebuttal.” F,K&C, p. 680-81. We shall refer to the designated basic fact as B and the fact presumed from B‘s existence as P.

B. Assumptions for discussion: Assume in the following that the only disputed fact in a case is P, and that existence of the basic fact, B, is agreed to by both sides. Assume also that there is a statutory or common law presumption that where B exists, P exists. Plaintiff seeks to prove the existence of P. Assume that if there were no presumption, plaintiff would bear the burden of persuading the jury that P exists.

1. Burden of production: If no evidence is offered at all as to P, but B exists beyond dispute, plaintiff is entitled to a directed verdict. The party against whom the presumption is directed (in this case the defendant) bears the initial burden of producing evidence of non-P. If he produces no evidence, he suffers a directed verdict.

2. Burden of persuasion: If defendant offers enough evidence of non-P that a reasonable jury might find non-P, it is clear that he has met his production burden. But who bears the burden of persuasion? Courts and commentators are in complete dispute about whether the presumption of P from B changes the allocation of the persuasion burden from where it would be if no presumption existed. Three important different positions exist: