After sustaining an injury because of another’s negligence, your recourse is to seek fair compensation from the responsible party in a personal injury case. Once the case is determined, the jury awards you compensation to compensate for the economic and non-economic damages suffered. However, you will have to prove your case to win the suit.

The burden of proof lies with you, the plaintiff, in personal injury lawsuits. The principle requires you to demonstrate to the court that the defendant owed you a duty of care, breached it, and as a result, you suffered damages. Personal injury suits rely on the preponderance of the evidence and clear and convincing evidence as to the two approaches you can utilize to prove your case. This article will discuss the two at length to clarify the matter.  

Understanding Burden Of Proof

Both criminal and civil cases require certain evidence thresholds to be met to determine the prosecution for criminal cases and the plaintiff in civil cases.

Prosecutors are expected to prove their case beyond a reasonable doubt in criminal proceedings. Only in proving their case will the defendant be held criminally liable. The burden of proof is much lower in civil proceedings like personal injury cases. A personal injury suit aims to recover damages for the losses sustained. Therefore, the burden of proof is much lower. Plaintiffs only have to provide evidence demonstrating to the jury that there is a likelihood the defendant’s actions resulted in the plaintiff's injuries and losses.

Plaintiffs in personal injury suits prove their case through two approaches:

  • A preponderance of the evidence, and
  • Clear and convincing evidence
  1. The Preponderance of the Evidence

Under this standard, as a plaintiff, you will provide evidence to demonstrate to the jury that your circumstances are more likely than not that the facts are as you present them to be. It follows under this evidentiary standard, should the jury believe your account to be more than 55% true, then they believe 45% of the version to be false. Therefore, if the jury believes 55% of the plaintiff's account to be true, they will assign 55% of the blame to the defendant. Thus the defendant will only be liable to 55% of the compensation sought in the suit. 

A defendant’s negligence is pivotal in a personal injury lawsuit. You have to prove his/her negligence through five elements through a preponderance of the evidence. Further, you have to also demonstrate to the court that you suffered harm due to negligence. Without proof of loss or injury, you will not recover damages. 

Negligence and Its Elements

Engaging in conduct that deviates from the standards of the prudence of a reasonable individual amounts to negligence. A jury will compare the facts of the case, your evidence, and the testimony provided in the case to determine whether the following elements were satisfied. 

Duty of Care

It must be established that the defendant owed the plaintiff a legal duty of care. The law recognizes the existence of duty-bound care in relationships where the defendant is expected to act with a standard of care while dealing with the plaintiff.

For example, drivers are expected to exercise caution while driving by practicing safe driving habits and adhering to the driving laws. In this case, the driver exercises reasonable care by practicing safe driving habits and adhering to the traffic laws. This care is owed to motorists and other road users.

Duty of care is determined by the judge rather than the jury.

Breach of Duty of Care

Once the duty of care is established to have existed, you should prove that the defendant breached the duty of care through your attorney. A breach occurs when the defendant fails to exercise reasonable care when performing his/her responsibility.

For example, doctors owe a duty of care to their patients. Doctors are expected to offer reasonable care for their patients. Failure to do so could result in the patient suffering harm or death in the worst-case scenario. In personal injury lawsuits against doctors, plaintiffs show that the doctor failed to exercise due care, which resulted in harm or the demise of the victim. Failure is a breach of duty.

Breach of duty of care is a question of fact to be decided by the jury. It will evaluate the evidence and testimony presented against the reasonable standard, that is, what would a reasonable person would do given the circumstances in the case to determine if the defendant breached the duty of care owed to the plaintiff.  

Cause in Fact

As the plaintiff, honors are on you to establish a link between the defendant’s actions and your injuries or losses. The connection demonstrates the cause in fact. Cause in fact is further explained as the ‘but-for principle,’ that is, but for the defendant’s actions, you would not have suffered the injuries or losses.

Taking a car accident caused by reckless driving, for example, the victim’s position would be, “But not for the defendant’s reckless driving I would not have sustained the injuries I did in the crash.”    

Proximate Cause

Proximate cause refers to the scope of the defendant’s responsibility in the matter. Under the proximate cause principle, a defendant is only liable for the foreseeable consequences of his/her actions. If the harm suffered by the defendant was not foreseeable, the defendant could not be held responsible.

For example, a truck driver swerves onto a passenger vehicle’s driver’s lane and causes a collision. The passenger vehicle then veers into on-coming traffic and collides with your car.

Is the truck driver liable for your injuries?

Yes, he is. Your injuries resulted from the impact on the passenger vehicle. If not for the truck driver's actions, the passenger vehicle would not have swerved onto your lane. Hence the crash that resulted in your injuries would not have occurred. Therefore, the truck driver’s recklessness was a proximate cause for your injuries.


You must prove you suffered a loss on account of the defendant’s actions. The loss should be legally acceptable and verifiable. Losses in personal injury lawsuits occur in the form of injuries and property damage. As with the above elements, you must provide evidence establishing a link between the defendant’s actions and the harm you suffered. Further, you should provide evidence for the expenses you have incurred in treating your injuries or repairing the damage to your property. Medical bills and receipts of the costs incurred to restore your property should be tabled as evidence in your claim.

Once the jury ascertains the defendant’s culpability in the case, they will assign the degree of fault, the basis of the compensation. If the jury finds the defendant to be 60% at fault, you will recover 60% of the compensation sought in the lawsuit. The defendant is only liable for the degree of responsibility assigned by the jury.

Compensation Attached to the Preponderance of Evidence  

The preponderance of evidence supports your compensation claim. Once satisfied, the jury can then award economic or non-economic compensatory damages.

Economic compensation aims at restoring the plaintiff for quantifiable losses incurred as presented in the suit. These losses have a specific dollar figure and include medical expenses, property loss, and lost income. Non-economic compensatory damages cater for the non-quantifiable losses, that is, losses incurred whose dollar value cannot be immediately established. The losses include pain and suffering, loss of consortium, emotional distress, and loss of enjoyment. 

  1. Clear and Convincing Evidence

The clear and convincing evidence standard is a higher burden of proof than the preponderance of the evidence. However, beyond a reasonable doubt ranks higher.

Under clear and convincing evidence, the evidence you present in your case should be highly probable that a fact is true. The judge or jury in your case should be able to determine the matter is highly likely to be true rather than untrue based on the evidence you present in the case.

Clear and convincing evidence is required to determine if the jury should award punitive damages. As the name suggests, these damages are higher in value than compensatory damages because they serve to deter society from engaging in behavior similar to those of the defendant.

Further, punitive damages are not based on your losses but the indefensible conduct by the defendant. As per California Civil Code 3294, this conduct should be fraudulent, oppressive, and malicious.

Fraudulent, Oppressive, and Malicious Conduct

You can only recover punitive damages if the defendant engaged in fraudulent, oppressive, or malicious actions.

Fraudulent conduct refers to deceitful, intentional misrepresentation or concealment of material facts known to the defendant. Individuals who engage in deceptive conduct intentionally deprive others of their legal property rights. Additionally, this conduct does also cause injury.  

When a defendant is oppressive, this means that they engaged in deplorable actions that subjected you to an unjust hardship in conscious disregard of your rights.

Malicious acts aim at inflicting injury on another. You will have to prove that the defendant deliberately took action that consciously disregarded your rights or that of another. As a result, you suffered harm.

Punitive Damages

Take note: punitive damages are only awarded if you specifically ask for the award in your lawsuit. You are, however, not required to state a specific figure. The jury assesses the case, and if satisfied that the defendant’s actions were fraudulent, oppressive, or malicious, they determine the value to award in your case. 

Punitive damages are case-based. Meaning the value of the damages varies depending on the jury’s assessment of the case as presented. However, all juries consider the following before making their verdict.

  • The reprehensibility of the defendant's conduct
  • Whether a reasonable relationship exists between the value of the punitive damages and the harm suffered by the plaintiff
  • A value that will punish the defendant while discouraging others from engaging in similar behavior. Further, the jury also considers the defendant’s financial ability to pay the punitive damages.

California does not impose a cap on the value of punitive damages recoverable in a personal injury case. However, the value of the award should not be grossly excessive or arbitrary. Otherwise, it violates the Fourth Amendment. Therefore, the compensation value should be reasonable and relate to the compensatory damages awarded.

Since punitive damages are high in value and require proof of malice, fraud, or oppression, it thus supports the reason why the clear and convincing evidence standard ranks higher than the preponderance of the evidence.

How the Burden of Proof Relates to the Defendant

Defendants in personal injury cases are not required to prove their version of events as true. The defendant does not need to present an alternative version to counter your claim. All he/she has to do is make the jury believe that your version is 50% or more false or inaccurate. The defense achieves this objective by presenting evidence that counters your facts. This move aims at casting doubt on your account and not convincing the jury that his/her version or facts are more accurate than yours.

However, instead of casting doubt on your case, the plaintiff can offer additional facts to challenge your claim through the affirmative defense. Under this exception, the burden of proof shifts to the defendant. By presenting the different facts, the defense seeks to demonstrate the elements as more likely than not true, regardless of your success in proving your claim. 

Note that affirmative defense is a strategy the defense employs to avoid liability in the case.

Some examples of affirmative defenses employed include

  • Assumption of risk — Under this, the defense will argue that you were aware of the dangers before suffering an injury. Engaging in sporting activities is one example. By participating in a sport, you were aware of the risks involved. Even if you successfully prove that the defendant is liable for your injuries, the defense will argue that the defendant cannot be held responsible for the harms you knowingly exposed yourself to.
  • Comparative negligence — This rule apportions fault to parties in a claim. For example, the jury could determine that the defendant was 70% at fault in your claim while assigning a 30% responsibility to you for your injuries or loss. Under the comparative negligence rule, the defense aims to provide facts that demonstrate your liability for your injuries or loss to reduce their own.

California is a pure comparative fault state. This means that you can claim compensation even if you bear responsibility for your loss or injuries.

Following the example above, the jury determines that the defendant is 70% at fault and you 30% at fault. You can only claim 70% of the damages awarded. If you were 60% responsible and the defendant 40%, you would only claim 40% of the damages awarded in your claim.

  • Laches — This defense challenges your claim based on an unreasonable delay in pursuing your claim. Laches is different from an application of a lapsed statute of limitations. Under laches, the defense should show how the plaintiff's delay in asserting his/her rights is prejudicial to the defendant.
  • Estoppel — This defense seeks to stop individuals from making contradictions or going back on their word. Defendants in your case can resort to this approach if they believe there are inconsistencies in your case.
  • Res judicata — Res judicata offers defendants protection from vexatious litigation, where plaintiffs sue defendants without sufficient grounds for doing so. Further, the defense presents this argument in concluded cases. The move is to avoid relitigating the matter.

How a Personal Injury Attorney Can Help

Making your case in a personal injury matter is challenging. In other situations, defendants entice plaintiffs with out-of-court settlements on face value that appear significant but are not fair compensation. Maneuvering all these challenges requires expertise, one that personal injury attorneys offer. The following are what you can expect from a personal injury attorney.

Explaining Your Rights

A common assumption is that when you are injured, all you need to do is sue another, which is enough to secure compensation. This is not always the case. An attorney will evaluate your case and inform you whether you have a case or not. Further, their assessment will include realistic feedback on your odds should the case proceed to trial vis-a-vis an out-of-court settlement. In both options, count on them to represent your rights and best interest.

Professional Assessment Your Case

Personal injury attorneys conduct independent investigations to ascertain the facts of the case. You can expect expert witnesses to offer accounts for your case in addition to the witnesses to your injury. Further, an attorney will professionally assess your damages. In most cases, the damages go up because plaintiffs predominantly focus on the immediate expenses and limit the future impact of their injury.

The converse is also true. Some plaintiffs exaggerate their expenses following an injury, but a professional damage assessment reduces it to a realistic figure.

Contact A Los Angeles Personal Injury Attorney Near Me  

Experience and professionalism are what you need in your attorney. You can rest assured that their advice and representation improve your chances of securing just compensation. At The Personal Injury Attorney Law Firm, we bring on board our experience and professionalism to the representation we offer our clients in California. Contact our team at 800-492-6718 for a free and no-obligation case assessment today.