How can the burden of proof be shifted on the defendant? NOrmally, the burden of proof is on the accuser (plaintiff). But my understanding, from reading the link, is that if the accuser makes a prima facie case, the burden proof can shift from the accuser to the defendant. What constitutes a "prima facie" case (I believe that the Latin means "on its face") and how does that shift the burden of proof to the defendant? This could be for either a civil or criminal case, but my primary interest is in torts.
Your daughter says of your son: "He hit me." She has made an allegation. Assume that the evidence shows that there is a red mark on her arm, tears and she and her brother were the only two people in the room at the time. This evidence is enough to establish a prima facie case. However, this evidence has not yet been tested. Now, for obvious reasons, we are going to assume that your family operates on an inquisitorial rather than an adversarial model of justice of so it is you who will be doing the testing. You might ask for a statement of the fact from your son. This will almost certainly contradict the evidence of your daughter because ... siblings. Assume that your son says they were arguing over a controller and that your daughter threw it at his head, he ducked and it bounced off the wall and struck her in the arm. So now you might cross-examine both the plaintiff and defendant to try to find any inconsistencies or other reasons to doubt their testimony. Or you might examine the controller for evidence of it being smashed into a thousand very expensive pieces. At the end of this process, you may prefer your daughter's version over your son's: if so, your daughter has met her burden of proof and is entitled to whatever remedy your Solomonic wisdom decrees. However, if you prefer your son's or find them equally plausible then she hasn't and justice requires a remedy in the other direction. This is because it was your daughter who had the burden of proof throughout. However, assume instead you son said: "I hit her but she hit me first". Well now he has admitted to the alleged facts and your daughter's burden is met but he is raising an affirmative defense ("I did it, but ...") rather than a negating defense ("I never did!"). The onus has now shifted to him to demonstrate the required elements of self-defense. Of course, unlike in the public legal system, self-defense is generally not a total defense withing a familial legal system and the best he can hope to do is mitigate the punishment and, vitally important in the interests of justice for children, ensure his sister gets punished too; because vengeance is more important than mercy.
When it comes to the obligation to tell the truth, there isn't all that much difference between a lawyer's obligations and those of a pro se litigant -- at least as far objective truth. But not every question has a single truthful answer. Professionalism rules impose some higher standards on lawyers in cases that are a bit murkier than just asking, &quot;Were you at the Capitol on January 6?&quot; In the United States, the analogous rule lays out some bright-line rules. Rule 3.3: Candor Toward the Tribunal (a) A lawyer shall not knowingly: make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. Subsection (a)(1) gives a good example of where the duties of honesty diverge for lawyers and pro se parties. If a plaintiff tells the court honestly -- but mistakenly -- that he lost $1 million in profits, but later discovers that he only lost $100,000, his lawyer has a clear obligation to correct that statement for the court; the pro se plaintiff's obligation is not clear. Similarly, if a plaintiff tells the court that he is entitled to those lost profits if he can prove elements A, B, C, and D, but later learns that the Supreme Court has also imposed a requirement that he prove E, the lawyer has an obligation to notify the court of this development; the pro se plaintiff does not. On the &quot;overriding&quot; language: I don't read it as generally having any effect on a lawyer's duty to be honest to his client. Instead, it means that the lawyer's duty to the court overrides the lawyer's duty to the client. In either of the above hypotheticals, for example, the lawyer acted honestly and ethically in presenting his evidence and argument, even though his statements turned out to be false. Correcting the record on either point would reduce or possibly eliminate his client's likely recovery and be against his client's best interests. Once the lawyer discovers the error, he is therefore faced with a conflict of interest: he has a duty to act in his client's best interest, but he also has a duty of honesty to the court. Chapter 13 says that his duty to the court overrides his duty to his client.
Short Answer The concern raised is a real one, but it is much less serious than one might naively expect. Long Answer Precedents Apply Only To Resolve The Legal Arguments Presented On The Facts Found To Exist At Trial A Bad Lawyer's Failure To Develop Facts At Trial Isn't A Serious Problem A precedent determines the law as applied to a particular set of facts found by the trial court and confirmed as properly in the trial court record by the appellate court, as to a particular legal issue. Failure to prove facts at trial due to the fault of counsel for a party in the trial court changes the scope of the precedent. Failure to establish facts in one case that sets a precedent, doesn't prevent a similarly situated party, in a case with essentially the same actual facts, from doing a better job and thus presenting a set of facts that are not governed by the same precedent. The precedent from the ill argued case would not apply because the facts as found by the trial court would be different. A Bad Lawyer's Failure To Present Legal Arguments Isn't A Serious Problem if a someone lost a case merely because they did not come up with an argument which, should they have come up with, would convince the judge to rule in their favour, and that case has become a precedent, the fate of any following cases in lower courts with comparable facts will be decided by that unluckily slow-thinking litigant/lawyer. Likewise, suppose that due to incompetence of counsel, a key legal argument isn't made. When a trial court lawyer makes that mistake, the precedent will merely resolve the legal arguments that were resolved by the trial court. This won't preclude a future litigant from making different legal arguments that are stronger in the same circumstances since the precedent won't resolve those legal arguments. For example, suppose that a trial, a lawyer for one side fails to argue that the statute of frauds (which requires certain contracts to be in writing) bars the claim, and the judgment in favor of other other side on an oral agreement is upheld on appeal. A lawyer in a new case with the same facts can move to dismiss the other side's claim based upon the statute of frauds, because the precedent upholding the oral agreement didn't resolve the question of whether the statute of frauds could be used to dismiss the claim arising under that agreement. There Aren't Better Alternatives To Sift Through Legal Arguments No lawyer can make every argument. The incentives of the system and the professional regulation of lawyers, however, increases the likelihood that the strongest arguments will be made to the court setting the precedent and in the trial court before an appellate court considers the issue, relative to pretty much any other means of clarifying ambiguous issues in the law, where the advocates for different legal rules usually don't have the same strong incentives to argue their cases as well as they possibly can. The Risk Posed By Ineffectual Rhetoric In Favor Of Good Rules Of Law Is Real But Limited This doesn't mean that bad lawyering doesn't give rise to bad precedents. But when this happens it is usually because for a given argument and set of facts, the lawyer for one side is so much more rhetorically effective in making a legal argument than the lawyer for the other side which is proposing a &quot;better rule&quot; of law. But the exclusion of people who can't finish law school and pass the bar exam from the process makes a truly decisive advantage for one party over another in rhetorical effectiveness fairly rare. To the extent that rhetorical failure in appellate briefing is the cause of a bad precedent, the long term systemic effect of this problem (some would call it a feature of the system rather than a flaw) is that the side with more resources that can afford to hire better lawyers will tend to produce legal results that favor similarly situated parties going forward. Thus, it produces a sort of diluted &quot;natural selection&quot; effect (a bias that is equally, if not more concerning, in the duel of lobbyists for all sides of an issue in the legislative process). The other safeguards discussed below, limit this risk, although not completely. Other Safeguards Subject-Matter Jurisdiction The requirement of an actual &quot;case and controversy&quot; for subject-matter jurisdiction, and the requirement of &quot;standing&quot; for subject-matter jurisdiction are designed to prevent someone from intentionally making straw man arguments on appeal that produce precedents that are bad law. Thoughtful Appellate Judges When Opinions Are Published Also, appellate court precedents are made by a panel of multiple (usually three at the first direct appeal level) experienced and esteemed judges who are acutely aware that the decisions that they are making in precedent setting cases influence the law in other cases which causes them to look beyond the arguments of the parties to resolve the dispute. It isn't at all uncommon in such cases for an appellate court to resolve a case on appeal on the basis of arguments not made by either party in their briefs, or precedents or statutes not mentioned by either party. Furthermore, most appellate court decisions are unpublished opinions that expressly determined by the panel making the decision not to make a binding precedent, which allows panels of judges in these cases to take less care to run afoul of the risk of making a bad decision due to bad lawyering by a party. So, in the minority of cases that are published and create binding precedents, judges are especially careful to consider this risk. Five More Safeguards The other main safeguards in the case law system against bad precedents due to poor lawyering by a party are: (1) the ability of uninvolved third-parties to file amicus briefs in connection with an appeal presenting perspectives on legal issues not presented by a party, (2) the ability of a state supreme court or the U.S. Supreme Court (or both) as the case may be, to overrule intermediate appellate court precedents that were wrongly decided, (3) the ability of legislatures to change non-constitutional legal rulings by statute, (4) the procedural requirement that the relevant state or federal attorney general be given notice and an opportunity to intervene in cases challenging the constitutionality of a law, and (5) the ability of the political process to amend the relevant constitution to address a bad binding precedent by a highest court on a constitutional issue that the legislature cannot fix. Collectively These Safeguards Help Somewhat None of these safeguards are fool proof. But, collectively, these safeguards reduce the risk of a bad precedent being established due to bad lawyering in an adversary system, that the inherent limitation of a precedent being limited to particular facts and particular legal arguments provides as a primary means of preventing. Other Causes Of Bad Precedents Are More Of A Problem In general, once all of the considerations above are taken together, the risk of a bad precedent being made due to bad lawyering, while it is real, is significantly smaller than the risk that a bad precedent will be made because the appellate judges rendering the precedent making opinion are bad judges. Bad judges usually end up as judges with appellate precedent making power because they were selected more based upon political considerations, as they are in many states, and in the federal system, rather than primarily based upon the soundness of their legal judgment. When one risk factor that can lead to a bad decision is much larger than another risk factor that can lead to a bad decision, further improvements in the smaller risk factor will rarely make all that much of a difference in the overall likelihood that the system will produce a bad precedent. So, the adversary system, is, on balance, good enough make the risk of bad precedents arising from bad lawyering a not very troubling problem with the system, even though it is a real risk that sometimes does produce bad precedents.
If you are directly suing two people regarding a shared set of circumstances (e.g. two co-signers on a promissory note to plaintiff, or two people who both contributed to causing an accident burting the plaintiff), the caption and name of the lawsuit is: PERSON v. DEFENDANT1 and DEFENDANT2. The entire complaint together with a summons directed at DEFENDANT1 goes to DEFENDANT1 and the entire complaint together with a summons directed at DEFENDANT2 goes to DEFENDANT2. There are cases that do have captions like PERSON v. AWESOME PERSON v. SUPERAWESOME PERSON. But that means that PERSON sued AWESOME PERSON, and then AWESOME PERSON, after being sued by PERSON, then turned around and filed what is called a &quot;third-party complaint&quot; against SUPERAWESOME PERSON. A typical fact pattern there would be LANDLORD v. TENANT for damage to property and TENANT v. SUBTENANT to indemnify TENANT for damage actually done by SUBTENANT for which TENANT is nonetheless responsible to LANDLORD.
An alibi is a particular kind of defense strategy bearing on the burden of proof: here is the alibi jury instruction for California. The defendant contends (he/she) did not commit (this/these) crime[s] and that (he/she) was somewhere else when the crime[s] (was/were) committed. The People must prove that the defendant was present and committed the crime[s] with which (he/she) is charged. The defendant does not need to prove (he/she) was elsewhere at the time of the crime. &quot;I had put the gun down&quot; is not an alibi defense, &quot;I was not in my right mind at the time&quot; is not an alibi defense. The alibi defense is essentially a formality that clarifies the logic of &quot;reasonable doubt&quot; for the jury. If the defendant could not have committed the crime because they weren't there, then that is the end of the discussion. The prosecution will introduce various facts that suggest that the defendant may have committed the crime. The &quot;reasonable doubt&quot; instruction is widely interpreted by jurors to involve a defense obligation to disprove that evidence, which is a reason why a number of jurisdictions have adopted a different instruction based on &quot;being firmly convinced&quot;. Reasons to doubt prosecution evidence can be weak and highly speculative, and the courts have struggled for years to find a good way to convey exactly what &quot;reasonable doubt&quot; is. An alibi goes way beyond merely detracting from the prosecution's case. An alibi is not an affirmative defense where you have to prove the claim by a preponderance of evidence. If you can establish that you were somewhere else when the crime happened, had no opportunity to have committed the crime and could not have committed the crime by another means, you have defended yourself against the charge (assuming that the prosecution does not successfully challenge the credibility of the alibi witness). And in California, you have to give notice that you intend to use the alibi defense.
There is no public place to “file” that. When privilege is claimed and the other side challenges it then the person claiming privilege needs to establish somehow that the attorney client relationship exists and is pertinent to the question. In the normal course of things there would be an engagement agreement in the attorneys files. And not everything communicated between a client and attorney is protected by the privilege. It only covers legal advice and specifically does not cover discussions planning criminal activity.
Basically, the idea of incontrovertable evidence is that the evidence points to one and only one truth, and the fact-finder need not doubt it (metaphysical doubt) unless opposition provides material fact that refutes the claim. That is, the defendant may be innocent until proven guilty, but evidence that shows guilt exists on the defendant's part is not false just because it demonstrates this. Thus, if the person making the claim meets the burden of proof, the person in the defense must refute with new evidence that raises doubt about the new fact. One should not assume it is not factual just because it aids in the claim against a defendant. You cannot doubt the evidence just because you doubt it; there must be a reason.
I understand that by &quot;civil law systems&quot; the OP means to refer to civil (vs criminal) cases, not to the civil law (vs common law) systems. The standard for proof of &quot;guilt&quot; (which is not actually called &quot;guilt&quot;) is indeed &quot;much lower&quot; in civil cases, but the reason for that is not that it has to be so, but that the standard of proof in criminal cases has to be much higher. In civil cases none of the parties face criminal conviction. One party will just lose some money or property, will have to perform some work, will lose some opportunities etc. So, initially, both parties play the same game and each of them is in to lose it down to a similar level of peril. What follows is that, at the baseline, neither of the two parties should be in more advantageous position to prove their rightness than the other. In other words, if any of them proves that they are more than 50% likely to be right than the other, they should win. Indeed, why would one party have to prove their rightness beyond reasonable doubt? If it was so, it would mean that the other party would effectively have to prove their rightness to only a small degree, which would be utterly unjust. lot of guarentees like right avainst self incrimination are also not available in civil law systems. what is the reason behind this ? False. If saying something from a witness stand would risk you being prosecuted, you can refuse to say it regardless of whether you are giving evidence in a civil or a criminal case.