What is the burden of proof mean “by a preponderance of the evidence”?

Most jurors will be vaguely familiar with the different burdens of proof, particularly the criminal standard “beyond a reasonable doubt,” due to all the CSI crime shows on television.  One of the most important parts of Voir Dire is educating the jury pool on the proper standard in a civil case.  You should take time to use your hands when describing the different burdens of proof.  For example, when using the term “clear and convincing evidence” – a very high burden of proof, you should keep one of your hands near your torso while raising your other hand very high – every time.

However, when you are explaining the standard of “beyond a reasonable doubt,” you should hold your palms upward as if you are juggling and describe the standard as if it were an antique scale – because it is!  Always explain the burden as “more likely than not.”  You really have to pound the message home that every single element of your case will be measured by this burden.

The last thing you want to happen is for the jury to be debating your case in the jury room, with one of them piping up “I just don’t think he/she provided enough proof.”  If that is what comes up, you want the message you provided in trial to be so clear that someone else uses the scale example with their hands to say “I think it’s more likely than not that it occurred the way they said that it did.”

Crossing the 50 yard line” 

Jurors need to be constantly reminded that that’s the standard to be proven – more likely than not.   You can use an array of examples that might suit your jury: crossing the 50 yard line, for example, is a good message in SEC football country.  You just have to prove each element by a preponderance of the evidence – or more likely than not.  Do not allow the defense to try and use examples that do not properly reflect the burden.  An objection will be in order if that occurs.

For these reasons, it is always smart to associate a veteran litigator and experienced trial lawyer who has been involved presenting cases to a jury.