top of page

Don't Be Fooled: How to Combat Creative Takes on the 'Burden of Proof' in the Courtroom

Lawyers have a knack for creativity, especially when it comes to the burden of proof. But fear not! Here's your guide to staying one step ahead.


Ah, the burden of proof—a phrase that sounds like it should be the title of a courtroom drama, yet is one of the cornerstones of any legal proceeding. While this concept is quite straightforward in theory, things often get dicey when plaintiff attorneys decide to stretch its interpretation like it's courtroom yoga. This article aims to arm you with the strategies to keep things on the legal straight and narrow.

What is the Burden of Proof?

Before diving into the deep end, let's set the stage by understanding what the "burden of proof" actually means. In legal jargon, this refers to the obligation of a party to substantiate their claims with evidence. In a criminal setting, the prosecution bears the burden of proving the defendant's guilt "beyond a reasonable doubt." Meanwhile, civil cases often go with "preponderance of the evidence," a somewhat easier threshold.

For further reading, check out the American Bar Association's take on it here.

The Creative Plaintiff Attorney: A Case Study

Remember the infamous O.J. Simpson case? Defense attorneys brilliantly manipulated the burden of proof by putting the LAPD on trial, raising questions about the handling of evidence. While this was a criminal case, and the strategy was employed by the defense, it's an excellent example of how flexible interpretations can dramatically influence a case's outcome.

For an academic perspective, read Alan Dershowitz's piece "Reasonable Doubts".

An illustration of a man in a suit, representing an attorney, straining to carry a massive rock labeled 'Burden of Proof' up a steep mountain to signify the challenges and responsibilities involved in proving a case

Strategies to Combat Creative Interpretations

1. Clarity is King

In both your oral and written arguments, strive for precision and clarity. Ensure that the jury knows exactly what the burden of proof means in the context of your case.

2. Leverage Technology

Consider using interactive presentations or infographics that visually represent the burden of proof. Visual aids can help jurors follow along and establish whether the burden has genuinely been met. Websites like Prezi or Canva can be handy tools for this.

3. Expert Witnesses

Sometimes, expert witnesses can break down complex issues in layman's terms, helping the jury understand what needs to be proven for the burden to be met.

4. Jury Instructions

Make sure to request jury instructions that clearly outline the standard for the burden of proof. Cases like "Sandoval v. Qualcomm Inc.," 288 F.R.D. 203 (S.D. Cal. 2012) emphasize the significance of proper jury instructions.

5. Object, Object, Object!

If the opposing counsel tries to introduce a "creative" interpretation of the burden of proof, don't hesitate to object. Let's steer things back to the rule of law.

6. Pre-Trial Motions

File pre-trial motions to clarify what can and cannot be considered as meeting the burden of proof. You could argue that improper interpretations are inadmissible, relying on precedents such as "Anderson v. Liberty Lobby, Inc.," 477 U.S. 242 (1986).


Interpreting the burden of proof is not a game of Twister—you can't just bend it whichever way you want! Armed with these strategies, you'll be more than equipped to combat any "flexible" interpretations that come your way.

For a good roundup of how burden of proof has been manipulated or properly applied in various cases, give a read to "Burden of Proof: Case Studies, Interpretations and Implications" from the Harvard Law Review.


15 views0 comments


bottom of page