Lawyers often talk about the burden of proof in litigation and whose responsibility it is to “carry” the burden in a particular setting. But what is this “burden of proof” and how, exactly, is one supposed to carry the burden? There are essentially three standards for defining the burden of proof in Anglo-American jurisprudence, two civil burdens and one criminal burden. Most folks have heard of the criminal burden which is beyond a reasonable doubt. Since the burden of proof rests with the party seeking to persuade the factfinder, in criminal trials it is the burden of the prosecution to convince the jury of the defendant’s guilt, not beyond any imaginable, conceivable doubt, but only that doubt which is reasonable under the circumstances of this case. It is not sufficient for the jury to believe that the defendant is probably guilty. Suspicion or probability of guilt are not enough for the jury to convict. See Doubles, Emroch and Mehrige, Virginia Jury Instructions, section 100.14 (West 1964).

The burden of proof in most civil proceedings, including workers’ compensation cases, is much less difficult to meet than the criminal standard. In the great majority of civil cases, the party seeking to persuade the factfinder need only prove his/her case by a preponderance of the evidence, also called the greater weight of the evidence. In Virginia, the courts have defined that standard as “the evidence which [the factfinder] finds more persuasive. The testimony of one witness whom [the factfinder] believe[s] can be the greater weight of the evidence.” Virginia Model Jury Instructions, No. 3.100. In other words, it is the quality of the witnesses’ testimony that counts, not the quantity of witnesses who testify for each side. Generations of Virginia trial lawyers have gone into courthouses all over the Commonwealth and have analogized this standard of proof to a football game, arguing to their factfinders that they don’t have to drive the ball all the way down the field and score a touchdown; they just have to move the ball over the midfield line to win the “game.” Because our common-law forebears considered a person’s life and liberty to be more important than his/her money and property, they created this daunting legal hurdle to a criminal conviction, proof of guilt beyond any reasonable doubt. Money and property can be replaced (at least in theory), so the hurdle to recover against one’s fellow citizen in a civil conflict required a much lower burden of proof.

There is a third standard of proof which is required in certain less familiar cases which is proof by clear and convincing evidence. “Clear and convincing evidence has been defined as ‘that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.”
215 Va. 535, 541, 211 S.E.2d 88, 92 (1975). In workers’ compensation litigation, this standard is rarely used. The clear exception is in cases where the claimant employee contends that he/she developed an ordinary illness of life as the direct result of conditions at work. In those cases, the claimant is required to prove the conditions at work were the sole cause of his/her becoming ill with the sickness complained of by clear and convincing proof.

Now that we have our terms defined for us and have some appreciation for what the burden of proof is, we will take a closer look at how burdens of proof are allocated in multi-issue cases like workers’ compensation claims, which we shall do in an upcoming post to this blog. Thanks for taking the time to read this blog which features my random thoughts on workers comp as well as other legal and non-legal topics which catch my attention.

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