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True Justice Record
    True Justice Record

      Kinds of proof

      This record

      Area of law

      Who Must Prove It — page 2

      Most people think a case is won by whoever is right. A great many are decided instead by whoever had to prove the point and did not. The burden sits somewhere before any evidence is heard, presumptions move it, and the standard the proof must reach differs from one proceeding to the next. This subject sets out where the burden starts, what shifts it, what each standard actually requires, and what a decision-maker does with a claim that nobody answered.

      Who Must Prove It

      Shifting the Burden

      Burden shifting is a defined mechanism rather than a description of momentum. Establishing a prima facie position may require an opponent to respond, and raising an affirmative defense places its elements on the party asserting it. In most frameworks the burden of persuasion never moves at all, which means a party who treats a successful prima facie showing as a transfer of the ultimate obligation has misread what happened and will under-prepare everything that follows it.

      6 min readCourts and agencies