How lawyers Evaluate Personal Injury cases THE BURDEN OF PROOF: Evaluating Your Injury Case Part 1
Lawyers are trained to think differently.
While we want, in the end, justice, fairness, and reasonable compensation for our clients, typically, that is not where we begin our analysis of your case. It is not personal. It is an evaluation of one thing – can we win?
How does a lawyer look at a set of facts and decide whether it is a winnable case? They listen to the prospective client. They evaluate the prospective client’s story using experience with similar cases AND the likelihood of being able to PROVE the facts by a preponderance of the evidence.
Like other professionals such as doctors, engineers, and IT professionals, lawyers live in parallel universes – in our case, these are the universe of the law and the everyday universe. Keeping the two separate is as much art as anything else.
So, when a potential client comes in to discuss possible representation for an injury or automobile accident case, slip and fall, dog bite, or whatever, we listen and evaluate the facts in terms of whether we think we can meet the “Burden of Proof” in the case. In short, this means whether the facts described by the potential client fit within the parameters of the law and the probability of financial success – the facts can be proven.
So, what do I mean by the first element of analysis, the “Burden of Proof?”
Researching legal issues can be complicated for the average person without legal training. But there is a surprisingly easy way for anyone to get an outline of various legal issues: Jury Instructions.
In Arizona, these instructions are referred to by the acronym RAJI – Revised Arizona Jury Instructions.
When you talk to a lawyer about your case, their mind will be thinking of two things: Settlement probabilities or trial. The RAJI frames the lawyer’s thinking process.
There are many different issues to consider here, but for purposes of this BLOG, we are concentrating on a single issue: what does the phrase “the Burden of Proof Mean?” Who has it? How is it defined?
One of the most important considerations is “The Burden of Proof.” to a lawyer, every case, every file, has the potential to go to trial. While most cases settle, good lawyers prepare the file for trial from the day the file is opened, so they are ready to push forward if settlement discussions fail.
What is the Burden of Proof?
If your case goes to trial, the Judge is going to tell the jury exactly what the Burden of Proof means in a courtroom context:
Burden of proof means burden of persuasion. On any claim, the party who has the burden of proof must persuade you, by the evidence, that the claim is more probably true than not true. This means that the evidence that favors that party outweighs the opposing evidence. In determining whether a party has met this burden, consider all of the evidence that bears on that claim, regardless of which party produced it. (This is found in Revised Arizona Jury Instructions (Civil) 7th , Standard Instruction Number 2, Burden of Proof (More Probably True))
This is standard instruction that the Judge will read to a jury whether the incident, accident, collision, or injury happened in Gilbert, Mesa, Phoenix, Chandler, Scottsdale, or Goodyear, Arizona, anywhere in the state. It is well-written and easy to understand.
It is often hard to evaluate a claim after a single interview. Meeting the burden of proof as defined is more complex than you might think. Different juries have different personalities, just like people. Some juries are more challenging to convince than others. No matter what, every lawyer remembers the most difficult juries and thinks of convincing THAT jury.
In some cases, the lawyer may decide to investigate the potential client’s claim before entering into a full contract with the client. So, the initial agreement between the client and lawyer may say that the lawyer and client agree that the lawyer is, probably without charge, going to investigate the claim before deciding whether to take on the additional cost of representing the client against the insurance company or opposing counsel. These kinds of agreements are called “Limited Scope Contracts.”
This may be as simple as obtaining the relevant police report. Or it might include hiring a private investigator to contact and interview witnesses, hiring a nurse to review the injuries claims, or even sending the client to an expert for review or examination.
Only after the lawyer thoroughly understands your claims and the evidence to support those facts can they make an educated guess about the probable outcome. These are the questions that come to mind:
- What are the facts of the case?
- Which of those facts will be contested by the defendant?
- Can the plaintiff meet the burden of proof regarding those contested facts and convince a jury to rule in the client’s favor?
Only then can the lawyer realistically think about the following:
- The claim’s probable monetary value; and
- whether that amount of money fully compensates the plaintiff, pays the lawyer back for their investment of money and time, AND pays off all the client’s liens or remaining medical bills.
It all starts with the Burden of Proof. Who has it? Can it be met? And how much will it cost to meet that burden relative to the claim’s value?
In part 2, we will talk about the claim of negligence. What is the burden of proof when someone alleges that person hit me and caused me injury?