What Is The Preponderance Of The Evidence?

You probably know that you’re innocent until proven guilty. However, that’s criminal law. In the civil cases that most often concern businesses, there’s no guilt or innocence. The standard that drives most civil cases is the “preponderance of the evidence.”

So, what is this standard? How does it separate civil cases from criminal trials? When do businesses face different standards? These are all important questions for any business looking either to file suit or defend itself against one.

The 51% rule

In every legal case, one side has a burden of proof. This means that one side is tasked with proving its case. In civil cases, this burden of proof typically lies with the plaintiff. For example, in a breach of contract case, it’s the plaintiff’s job to show that the defendant failed to uphold its contractual obligations, and it’s the plaintiff’s job to show that the failure led to measurable damages.

When the standard for a case is “the preponderance of evidence,” it means that the plaintiff needs only prove that its argument is more likely right than wrong. For example, in our fictional breach of contract case, our plaintiff would only have to convince the judge or jury that it’s more likely than not that the defendant violated the contract.

Or, as the U.S. Courts system informs the jurors for federal civil trials, “To prove an element by a preponderance of the evidence simply means to prove that something is more likely than not. In other words, in light of the evidence and the law, do you believe that each element […] is more likely true than not?”

If the evidence is evenly balanced, jurors need to rule in favor of the defendant, so plaintiffs need to be slightly more compelling. In other words, they need their arguments to be 51% or more likely.

A lower standard than “beyond a reasonable doubt”

As you can see, this “preponderance of the evidence” standard provides one key difference between civil and criminal trials. It’s not the only difference, of course, but it’s something that any business looking at upcoming litigation needs to understand.

As the defendant, you need to do more than raise a “reasonable doubt” about the plaintiff’s case. Plaintiffs do not need to prove their cases beyond a reasonable doubt. They just need to get the jurors to believe their arguments more than they believe yours. Conversely, you need to show how your argument is stronger, wins more support from the evidence and interprets the law more accurately.

Possibly because they operate according to this lower standard of evidence, civil trials also tend to end in hung juries far less than criminal trials. The research is older now, but in 2002, the National Center for State Courts reported on hung juries.

From 1980 to 1997, federal criminal trials ended in hung juries at a rate between 2 and 3%, averaging approximately 2.5% over that 17-year time period.

Over the same period, federal civil trials ended in hung juries only half as often. They ended in hung juries between 0.5 and 1% of the time.

The report indicated that evidentiary standards factored heavily into hung juries. The more complicated the case and evidence, the more likely the trial would end with a hung jury. In fact, one chart compared the ambiguity of the case and evidence against the percent of trials that ended with hung juries:

Most ambiguous = 24% hung

Somewhat ambiguous = 13% hung

Less ambiguous = 10% hung

Least ambiguous = 0% hung

From this evidence, you might assume that civil trials are less likely to end with hung juries because jurors don’t need to understand the case and evidence 100%. They only need to evaluate if the law and evidence support one side over the other.

Other standards of proof

While most civil trials use the preponderance of the evidence standard, it is not the only standard of proof:

“Beyond a reasonable doubt” is the highest standard of proof. It applies to criminal cases.

“Clear and convincing evidence” is a lower standard than “beyond a reasonable doubt,” but still higher than “the preponderance of the evidence” standard. It demands that someone provide enough evidence to leave you with a “firm belief or conviction” that the factual claims are true. Instead of being “more likely than not,” the arguments must be “highly probable.”

There are several lower standards of proof that do not often apply to businesses and their legal concerns.

Sometimes, the standards of proof follow statutory guidelines. More often, they follow the facts of the case. For example, civil litigation uses a lower standard of proof because the stakes are usually just monetary. They don’t directly target an individual’s civil rights and freedoms as with a criminal case. However, courts may demand the higher standard of proof in situations involving punitive damages, claims of fraud or similar situations.

The different standards of proof may also apply to specific claims or defenses within the larger case.

You start by aiming at the right target

Most business litigation settles outside of court, but it’s still important to understand how the standards of proof might affect your case. After all, the standard of proof for your case is something like your victory condition. In most civil cases, this is akin to winning by a single point. A single basket or field goal. You don’t need to win a tremendous, lopsided victory.

This all factors into negotiations, as well. The stronger your argument, the more you can argue a trial will go your way, and you can push for a better settlement. But it all starts with playing the right sport. Ensuring that your evidence and arguments all work toward your goal. And that you are aiming at the right goal.