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August 31 - Newsblog #1
Your Injury Attorneys in the News: Homeowner and Wife Sue over Police Shooting
September 7 - Newsblog #2
Your Injury Attorneys in the News: Homeowner’s Possession of Handgun Legal Under 2nd Amendment
September 14 - Newsblog #3
Your Injury Attorneys in the News: if a Government or Government Agency is at Fault, You Can Sue
September 21 - Newsblog #4
Your Injury Attorneys in the News: Lawsuit Against Police Department Invokes the Civil Rights Act
September 28 - Newsblog #5
Your Injury Attorneys in the News: a Clear Line from the Action – or Inaction – to the Injury
October 12 - Newsblog #6
Your Injury Attorneys in the News: Police Insensitivity Turns Traffic Stop into a Travesty
October 19 - Newsblog #7
Your Injury Attorneys in the News: Police Who Abuse Power Must Be Held Accountable, Law Professor States
October 26 - Newsblog #8
Your Injury Attorneys in the News: Holding Overly Aggressive Police Accountable
November 2 - Newsblog #9
Your Injury Attorneys in the News: Brown Vs. Impd Case About Much More Than Punishment or Money
November 9 - Newsblog #10
Your Injury Attorneys in the News: Improper Medical Diagnosis and Care Resulted in Loss of an Eye
November 16 - Newsblog #11
Your Injury Attorneys in the News: Medical Malpractice Claims Have a Front End and a Back End
November 30 - Newsblog #12
Your Injury Attorneys in the News: Truths About Medical Malpractice
December 7 - Newsblog #13
Your Injury Attorneys in the News: Yes, You Can Sue City Hall
December 14 - Newsblog #14
Your Injury Attorneys in the News: Slip and Fall Changes Two Lives Forever
December 28 - Newsblog #15
In the News: Ramey & Hailey Year in Review
January 4 - Newsblog #16
In the News: Teen’s Sexual Abuse Case Calls Attention to the Problem
January 11 - Newsblog #17
In the News: Parents of Survivor Sue Parents of Shooter
January 18 - Newsblog #18
In the News: Erin Brockovich Teams Up with Indiana Moms
January 25 - Newsblog #19
Your Injury Attorneys in the News: Case Settled in Favor of Catastrophic Slip and Fall Injury Victim
January 31 - Newsblog #20
In the News: Wrongful Death Lawsuit Filed Against Rehab Facility
February 8 - Newsblog #21
In the News: Nurse Arrested in Sexual Abuse Case
February 15 - Newsblog #22
In the News: Running the Clock on Indiana Medical Malpractice
February 22 - Newsblog #23
In the News: to Repeal or Not to Repeal – Indiana Legislators Rule “not”
March 1 - Newsblog #24
In the News: Helping Physicians Keep Helping
March 8 - Newsblog #25
In the News: Parents of Brain-damaged Infant Sue Hospital
March 15 - Newsblog #26
In the News: Owner of Gun Wins Decision
March 22 - Newsblog #27
In the News: Indiana House Passes Long Term Care Protections Bill
April 5 - Newsblog #28
In the News: Slip-and-fall Victim Wins Right to Sue Dollar Tree
April 12 - Newsblog #29
In the News: Inspection Report Shows Vets Harmed at 52 Nursing Homes
April 19 - Newsblog #30
In the News: Sandwich Diversion Causes Fatal Two-semitrailer Crash
April 26 - Newsblog #31
In the News: Does Premises Liability Cover Goose Attacks?
May 10 - Newsblog #32
Two-week-old N.y. Verdict Offers Takeaways for Slip and Fall Victims
May 17 - Newsblog #33
In the News: Barrel Blast Triggers Wrongful Death Lawsuit
May 24 - Newsblog #34
In the News: when a Product Manufacturer is Not at Fault
May 31 - Newsblog #35
In the News – College Doc’s Sexual Abuse of Students Coming to Light
June 7 - Newsblog #36
In the News – One Week, Four Motorcycle Accidents
June 14 - Newsblog #37
List of Troubled Nursing Homes Released
June 21 - Newsblog #38
In the News: Kansas No-caps Ruling Changes Personal Injury Climate
June 28 - Newsblog #39
In the News: Jury Awards $10.5 Million for Pain and Suffering in Birth Injury Case
July 5 - Newsblog #40
In the News: More Indicted in Last Year’s Duck Boat Tragedy
July 17 - Newsblog #41
In the News: Richard Hailey on Litigation Team for Lawsuit Vs. Tesla
July 24 - Newsblog #42
In the News: Malpractice Lawsuit Yields Largest Award in History
August 28 - Newsblog #43
In the News: Trucks V. Passenger Cars – Score 18:116. Everybody Loses
December 4 - Newsblog #44
In the News: High School Chaplain Suspended on Allegations of Sexual Abuse
December 11 - Newsblog #45
In the News: Franklin, Indiana Continues to Face Toxic Waste Problem
December 11 - Newsblog #46
In the News: Franklin, Indiana Continues to Face Toxic Waste Problem
December 18 - Newsblog #47
In the News: Parents of Bus Accident Victim Awarded $20 Million
January 8 - Newsblog #48
In the News: Parents Sue After Daughter’s Brain Damaged in Surgery
January 10 - Newsblog #49
In the News: Trucking Accidents Due to Careless Driving Increase
January 29 - Newsblog #50
In the News: Trucking Accidents Due to Careless Driving Increase
February 19 - Newsblog #51
Indiana Authorities Buy More Time to Prosecute Child Abusers
February 26 - Newsblog #52
In the News: Teen Brain-injured at Birth Awarded $15.1 Million
March 4 - Newsblog #53
In the News: Did Connecticut School Officials Turn a Deaf Ear to Sexual or Physical Abuse?
March 18 - Newsblog #54
In the News: Facility Held to Blame for Medical Treatment Delivered in a Careless and Negligent Manner
April 1 - Newsblog #55
In the News: Emergency Measures Instituted in Indiana’s Judicial System
April 8 - Newsblog #56
In the News: Medical Malpractice Limits Challenged in California
April 15 - Newsblog #57
In the News: Indiana Supreme Court Issues Five Orders for Legal Proceedings
May 6 - Newsblog #58
In the News: Nursing Homes with Covid-19 Cases Have Been Violating Federal Infection Control Rules for Years
May 13 - Newsblog #59
In the News: Physician Not Negligent in Choosing One Treatment over Another
May 20 - Newsblog #60
In the News: Nursing Homes with Covid-19 Cases Have Been Violating Federal Infection Control Rules for Years
June 17 - Newsblog #61
In the News: Ruling Reverse on Police Shooting – New News, Old Story?
July 8 - Newsblog #62
In the News: What is This Thing Called Qualified Immunity?
July 15 - Newsblog #63
In the News: Sooner or Later for Virus-delayed Jury Trials
July 29 - Newsblog #64
In the News: Truck Driver Sentenced, Another Charged in Fatal Crashes
August 5 - Newsblog #65
In the News: Double-booked Doctors Cause Personal Injury to Patients

Litigation Newsletter

“Standard of Proof” in Most Personal Injury and Other Civil Cases

Crimes are wrongful acts against society for which punishment may be imposed. Where an individual is injured through the wrongful action (“tort”) of another, the law may also give the injured party the right to file a civil lawsuit to recover damages. The same wrongdoing may constitute both a crime and a tort, and subject the wrongdoer to both criminal and civil liability.

What must be established or proven in a criminal or civil case in order to win a conviction or judgment (the “standard of proof”) usually differs, however. Criminal actions are seen as involving more serious penalties, therefore the law requires a distinctly higher degree of proof for conviction; generally proof of guilt “beyond a reasonable doubt,” i.e., the jurors or judge must be convinced beyond a reasonable doubt, of the defendant’s guilt. Civil cases usually require a lesser burden: “preponderance of the evidence” or, in some cases, “clear and convincing evidence.”

It is thus possible for seemingly conflicting results in a criminal versus a civil action arising out of the same facts and circumstances. A notorious recent example of this was that of a well-known sports figure accused of murdering his former wife and her acquaintance. The criminal prosecution resulted in an acquittal, whereas a civil action brought by the members of the deceased’s families found the man civilly liable for damages arising from the murders.

Preponderance of the Evidence

The standard of proof applied in most civil cases is a preponderance of the evidence. What exactly this means in practice is not crystal clear, and may vary between jurisdictions and even courts within the same jurisdiction. The parties to a civil lawsuit, such as a personal injury suit, must prove their allegations, backed up by facts, in order to prevail. Many civil personal injury cases are based on negligence, which means that the injured party may have to prove that:

  • The person causing the injury (defendant) owed a duty of care to the injured (plaintiff).
  • That duty was beached by the defendant.
  • The defendant’s breach of duty caused the injury to the plaintiff.
  • The plaintiff suffered injuries.

These are sometimes referred to as the “elements” of a case. The plaintiff has the burden of presenting credible evidence, e.g., documents, witnesses, and/or expert testimony, to show that each of these elements existed. The defendant usually also presents evidence to defeat the plaintiff’s claim. The trier of fact, either a jury or the judge, is then supposed to fairly and impartially weigh the evidence and find in favor of one side or the other based on which presented a preponderance of the evidence.

Preponderance of the evidence is usually defined as evidence that has greater weight or is more convincing in comparison to the evidence introduced by the other side. It means that the majority of the evidence favors one side or the other or, as described by other courts and authorities, enough evidence has been produced by one side to create a belief that its version of the story is more likely true than not. It is sometimes called the “51% of evidence” rule: whichever side convinces the judge or jury by 51% of the evidence will prevail.

Evaluating the Evidence

Attempts to assign mathematical certainty to a subjective process may have questionable value, but it highlights that the trier of fact only has to be more convinced by one side’s evidence, not overwhelmed. Some authority likens the process to putting each side’s evidence on a scale. If it tilts ever so slightly in one side’s favor, that party will win, but if equally balanced, the plaintiff loses.

One court in its instructions to juries asserts that the decision depends on the quality, not the quantity, of the evidence. Another court instructs juries to take into consideration factors such as the following is assessing the credibility of witnesses:

  • Whether the witness has an interest in the outcome of the case.
  • The reasonableness and believability of the witness’s testimony.
  • Contradictions or inconsistencies (or changes from a deposition) in the testimony.
  • The witness’s demeanor, candor, and willingness to answer the questions.

The trier of facts is the one that determines the weight, effect, and value of any evidence and the credibility of any witnesses. All evidence on a fact or issue should be considered.

Clear and Convincing Evidence

The clear and convincing standard is perhaps harder to define. It lies between the beyond a reasonable doubt standard in criminal cases and the “more likely than not” evaluation of preponderance of the evidence. While most civil cases require only a preponderance of the evidence, the clear and convincing standard has been applied in cases where there is a potential loss of important interests and, in some states, where the alleged tort is also a crime. The rationale in such jurisdictions is that, to recover, the plaintiff must prove the crime took place and cannot establish the existence of the crime by a lesser standard of proof.

The U.S. Supreme Court has stated that preponderance of the evidence is all that is required in most civil cases, unless “particularly important individual interests are at stake.” The higher standard has been applied in cases involving fraud or bad faith conduct. Much to the chagrin of the insurance industry, a 2003 decision by an Arizona court of appeal held that an insurance company claiming that fraud by the insured party was sufficient to void the policy and relieve the insurance company of its payment obligation had to be proven by clear and convincing evidence.

A California court of appeal case, however, held that an insurance company suing physicians under a statute for fraud, arising out of over-billing, could prove its case by a preponderance of the evidence as dictated by California law. The accused doctors argued that beyond a reasonable doubt or at least clear and convincing evidence standards should apply.

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