Thank you to everyone who attended our Thomson Rogers Webinar Series “The Burden of Proof: Proving Losses and Causation” held September 25, 2020 conducted by Thomson Rogers’ personal injury lawyers Robert Ben, Deanna Gilbert and Lucy Jackson.
Webinar Highlights:
• Standard burden of proof in a civil case (tort & AB): balance of probabilities.
Lower than “beyond a reasonable doubt” or “100% medical certainty”
Equivalent to a probability of 51% or higher
• Language:
Words that do not satisfy the burden: possibly, maybe, may, could, might
Word that do satisfy the burden: on a balance of probabilities, probably, likely, more likely than not, will, would.
• Exception:
Lower burden than a balance of probabilities
Only applicable to future losses/needs/risks
“Real and substantial possibility” or “real and substantial risk”
Must be more than fanciful, speculative, or remote possibility
Signals lower level of confidence
Consequences: expert for other side may be preferred or Plaintiff/insured may be given a lower reward
Summary:
Plaintiff/insured generally has to prove on a balance of probabilities
Words matter
Where even a future risk/need/loss can be proved on a balance of probabilities, then say so. Only resort to the exception where must
Point is to ensure that your words accurately reflect what you are actually trying to convey
