Louisiana Jury Instructions–Civil and Criminal
CHAPTER 1 Civil Jury Instructions
II. Evidence

§ 2.05 Burden of Proof

[1] Preponderance of the Evidence Standard

The general standard of proof required in the civil case is the plaintiff must establish the facts of the claims by a preponderance of the evidence; a more likely than not level. This is generally considered to be a requirement that a civil plaintiff prove by greater than 50% of the evidence that the facts that support a finding of the validity of the plaintiff’s case. If the jury fins the matter is 50/50, the verdict must be for the defenses. The Louisiana Supreme Court has provided suggested language for a charge to the jury relative to this standard as follows:

One of the first things for you to keep in mind as the trial begins is that the plaintiff has to prove his case by what the law calls a “preponderance of the evidence.” This means that the evidence shows that the facts the plaintiff is seeking to prove are more likely true than not true.

“Preponderance of the evidence” is different from a standard of proof described as “beyond a reasonable doubt.” Proof beyond a reasonable doubt applies in criminal cases, but not in civil cases such as this one.

Alternative

In Louisiana tort cases and other ordinary civil actions, the plaintiff, in general, has the burden of proving every essential element of his case, including the cause-in-fact of damage, by a preponderance of the evidence, not by some artificially created greater standard. Proof by direct or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not.

[2] Clear and Convincing Evidence Standard

There are areas of law where a plaintiff may be required to prove all of the facts relative to the claim by clear and convincing evidence, which is a higher burden than the normal preponderance of the evidence required in civil cases. This criterion can be very confusing to a jury and an explanation of the nature of clear and convincing is necessary. When this is the case, the Louisiana Supreme Court Rule XLIV provides the instruction that should be given to the jury as follows:

In this matter, the Plaintiff is required to prove the facts claimed by the Plaintiff in this case by clear and convincing evidence. This is a standard of proof beyond the customary standard of “preponderance of the evidence” which applies in most civil cases. The law that applies to this case places the burden of proving facts to clear and convincing standard because of the nature of the cause of action brought by the Plaintiff. This is standard you are you use in your deliberations relative to this case and in determining if you are to find that the Plaintiff has proven the facts alleged b the Plaintiff to have occurred.

To prove a fact by clear and convincing evidence means to demonstrate that the existence of that fact is much more probable than its non-existence. If the plaintiff fails to prove a fact essential to his case by clear and convincing evidence, then you must find that he has failed to prove his case sufficiently to prevail. It may help you in your understanding of this concept to know that the law regards this standard of proof as between the lesser standard of preponderance of the evidence applicable in most civil cases and the greater standard of beyond a reasonable doubt applicable in criminal cases.

Alternative

“Clear and convincing evidence” is an intermediate standard of persuasion. It requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt. The existence of the disputed fact must be highly probable; that is, much more probable than its nonexistence.

 

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