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Month: July 2014

Civil Court Preponderance of Evidence

Girl with Bed bugs
Bed bugs

In civil injury cases, such as a car crash, the preponderance of evidence is the standard of proof that will be required for the plaintiff to use in proving liability of the defendant. This is something that can vary from one jurisdiction to another and from one court to another within the same jurisdiction.

The plaintiff in a civil lawsuit must prove their allegations against the defendant using the facts for the case to be successful. A large portion of civil lawsuits are brought as personal injury claims. In other words, they are based on negligence using tort law.

And they require the plaintiff or injured party to prove specific elements:

  • The defendant or negligent party owed a duty of care to the injured plaintiff.
  • The negligent party or defendant breached the duty of care.
  • But the plaintiff must have suffered injuries due to the violation of duty of reasonable care by the negligent party.

The elements of a case, which is the plaintiff’s burden to prove in a civil lawsuit, involves the credible evidence. So it might require documents, police reports, medical documents, expert testimony and witness statements. This is used as a way of showing the at-fault party caused the injuries and that they had a duty of care. The defendant will have an opportunity to present evidence to combat and controvert the plaintiff’s case. Afterward, or upon objections raised, the judge or jury will weigh the evidence submitted by the plaintiff and defendant to determine if the plaintiff’s case has been proven.

Their job as jurors is to consider the preponderance of the evidence provided and return a decision for the side that has presented a convincing case. The preponderance of proof is the evidence with greater weight in convincing the judge or jury as compared to the case put on by the opposing side. Even if this tips the scale just a tiny bit, if it is tipped, Plaintiff should rightly win. Success in proving liability in a civil case will mean having the largest percentage produced evidence to sway the jury to make them one side of the case is more believable than the opposing side. Thus, using the rule of evidence if one side convinces the judge or jury by 51 percent they will prevail in the lawsuit.

However, some juries have been known to make a finding of fault, and awards a penny or “dollar,” if they dislike the plaintiff. Thus, the art of legal advocacy, and taking on likable clients, is one of the oft unspoken aspects of a case that is arguably even more important than being able to prove a case. Many experienced attorneys can look through a plaintiff’s case and see into the soul of the victim. If the victim comes off like a jerk, this fact alone could mean a hollow victory. This is an exceptional sub-issue of proving a case that is worthy of further discussion.


“Preponderance” – Cornell University:

Personal Injury and Civil Court Standard of Proof

Balancing scales
Scales of Justice in a Civil Case

In either criminal or civil court, there is a burden of proof that will be required to obtain a conviction, judgment or jury award. This is the relevant “standard of proof” and it will be a different and lessened burden in civil court than the more stringent standard would be in a criminal case.

Thus, the level of proof in criminal cases is always held to a higher standard, since it can result in severe penalties like loss of life, liberty, and the pursuit of happiness for an upheld conviction. This criminal standard is known as proof of guilt beyond a reasonable doubt to convince a judge or jury of the defendant’s guilt to determine the conviction and penalty.

In civil cases the standard of proof is referred to as a “preponderance of the evidence,” or it may be called clear and convincing evidence in civil court litigation cases such as when fraud is alleged in the original or amended complaint.

Wrongful acts or certain types of negligence can be the basis for criminal actions that result in financial punishment. Beyond fines and penalties, this same behavior can also result in imprisonment when the state or federal prosecutor initiates the criminal prosecution, and a jury ultimately decides upon conviction, or the defendant facing incarceration enters into a plea arrangement.

So although there may be criminal charges against a tortfeasor, the wrongful actions in a civil case that fall under civil tort law, even though they can also involve a private attorney general statute. This means an individual is harmed through negligence, such as a fender-bender traffic accident can sue.

Same goes for intentional acts, such as when someone punches you in the face without license. Or it could have been on purpose. And if so, you (as a tort victim) have the legal right to file a civil lawsuit. You would do so in order to recover damages. And under tort law, this is called “civil liability.”

Criminal Case Compared to a Civil Case – Burdens of Proof

Evidence in all criminal cases should be clear and concise to be convincing in court cases, though with civil cases the evidence often falls between this and “more likely than not.” This is because civil court relies on only a lower burden of the evidence, where in criminal cases to convict it must be much greater and not just tip the scales, which is called the “more likely than not” standard of proof.

In these types of jurisdictions the plaintiff, the People of the State of California, is required actually to prove that crimes took place. This is because the in most criminal cases, jail time and even the death penalty can be a penalty if convicted.

The U.S. Supreme Court has stated that there is a lessened burden of evidence required in most civil lawsuits. And this is called the “preponderance of the evidence” standard of proof. This lowered evidentiary threshold exists mostly because the only punishment will be money damages. The one time that more is required is when “particularly important individual interests are at stake.” This is known as the “clear and convincing” burden of evidence.


Recent Court Example of Clear and Convincing Evidence Standard Issues

This higher civil standard has been mostly in cases that involve punitive damages, insurance bad faith or fraud. But with every rule, there is always an exception. One example was in 2003. That was when the Arizona Court of Appeals upheld a lower standard of proof.

And that was because an insurance company claiming fraud by an insured party had sufficient cause to void the policy of the policyholder. So that relieved the insurance company from being obligated to pay without the need for clear and convincing evidence to prove the case by the carrier.

More recently in the state of California, an appeal case ruling involved a physician being sued by an insurance company under the statute for fraud due to over-billing. That Court ruled that the plaintiff could use a lower standard of the evidence to prove their case. The physician’s counsel had argued the case should be litigated using either clear and convincing evidence (discussed below), or even the greater criminal burden in the case, since the stakes were so high.

  • Other Issue – What if a Matter is Potentially a Crime And a Civil Case?

When a wrongful action takes place in which criminal charges can be brought against the individual who has caused harm to another person, tort law can be used by the injured party to bring a civil case against the wrongdoer in civil court, irrespective of double jeopardy laws. This is because one case is a civil case and the other potentially a chargeable offense in a criminal case so there is not a double criminal punishment for the same offense.

I’ll Take the 5th?” – Criminal Case

The Fifth Amendment restates the ancient Common Law right that:

“No person. . . shall be compelled in any criminal case to be a witness against himself.”

Our one Supreme Court has long upheld this natural right stating:

“The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.” (Hoffman v. United States, (1951) 341 U.S. 479, 486-487.)

With few exceptions, this rule is sacrosanct in a criminal case. Once relied upon, the defendant’s refusal to testify cannot be used against him or her to create an inference of guilt or innocence.

Pleading the 5th in a Civil Case Distinguished – Inference of Liability Potentially Inferred

Often when criminal charges are pending, or potentially chargeable, defendants in civil cases will use the 5th Amendment as a basis for refusing to answer questions in the pending civil lawsuit. In this case, a seasoned plaintiff’s lawyer will argue Evidence Code Section 412 to attempt to have the other evidence that is actually produced by the defendant in mitigation, to be viewed with distrust. In fact, it is also potentially a sanction-able act in a civil case to take the 5th for purposes of refusing to answer questions while under oath in that civil case. Even fishing expeditions are allowed, since facts discovered could lead to other witnesses and facts potentially admissible in a civil action that would normally be dis allowed in a criminal case.

Potential Doomsday Sanctions for Taking the 5th in a Civil Case? – YES

There are vast arrays of sanctions in a civil case available to a plaintiff to force compulsion of responses, including the striking of the defendant’s answer and entry of judgment in favor of the plaintiff without even going to trial. The potential sanctions for refusing to answer questions in civil discovery, based upon “absolute privilege” like this, include monetary sanctions and even more extreme “doomsday sanctions” like “issue sanctions,” “evidence sanctions,” “terminating sanctions.” (See also generally CCP §2023.030.)

The wrongful action case by the victim in civil court will be to recover financial damages, while charges filed against the wrongdoer will be heard in criminal court. Being charged criminally does not relieve the individual of civil liability. The criminal case and the civil case can use the same facts to garner the necessary evidence in the wrongful action.

This evidence while being used for both courts can result in an acquittal in the criminal court, but at the same time the individual can be found liable in civil court, such as in the O.J. Simpson case where he killed his wife and Ron Goldman but got our of jail-time, but still was held liable for money damages in the wrongful death lawsuit by the surviving family members of decedent Goldman.

This seemingly strange result is due to the difference in the burden of proof that is less in civil litigation as opposed to criminal litigation. The sports figure was found liable in civil court for damages in the murders, which shows the difference in proving a case in civil court compared to a criminal trial setting. In that case, Judge Ito excluded evidence of guilt and allowed other evidence in that many legal scholars said should not have been allowed (such as the shrunken leather glove atop a rubber surgical glove).

Conflicts are more likely to occur in criminal court settings, rather than civil actions involving the same facts. This is why in some cases that result in an acquittal are still successful in civil court, due to the difference in the standard of proof. Thus, as one can see, there are many variables involved in meeting the prospective burdens of proof for torts versus criminal acts.

The Unintended Consequences of Jurors Weighing the Evidence

Many political scientists believe that particular case became a racial trial of whites versus blacks, with an almost all black jury panel. Most agree that the OJ trial set back race relations in this country by a hundred years as an unintended consequence. Thus beyond the evidentiary burdens, political and other factors can play a major role in the way a jury rules on the standards of evidence and whether a prospective burden can ultimately be met.

How Much Do Lawyers Get Paid?

Retro couple sitting behind table.
Retro couple sitting behind table.

How much an attorney or lawyer makes is a burning question people often love to ask. There are hundreds of forums and blogs on the internet where this topic gets discussed. Some people want to know their yearly salaries only because they are curious about how much a lawyer makes while others inquire about it because they want to join this field. How much a lawyer makes depends on many factors. However, it can be easily said that a lawyer makes a handsome yearly salary that is better than what most other professions yield for the people.


The Many Different Types Of Personal Injury Lawyers

There are many different types of personal injury lawyers. Personal injury is not a small field, and if you go deep in it, you will see more than dozen different types of lawyers that are considered personal injury lawyers. Surprisingly, some cases that personal injury lawyers handle involve deaths and casualties too. Here are some of the different types of lawyers that are all working on the one big umbrella term of personal injury:

  • Auto accidents
  • Wrongful death
  • Motorcycle accidents
  • Burn injuries
  • Animal bite injuries
  • Brain injuries
  • Aviation accidents
  • Amusement park accidents
  • Insurance/bad faith
  • Spinal cord injuries
  • Construction accidents
  • Swimming pool drowning accidents
  • Nursing home abuse
  • Slip and fall accidents
  • Medical malpractice
  • Pedestrian accidents
  • Defective products

As you dig deeper you will find out many other types of accidents and injuries that can be handled by personal injury lawyers.


Factors Affecting Yearly Incomes Of Personal Injury Lawyers

Many websites will quote $62 to be the mean hourly wage for lawyers, but these statistics don’t always apply to all types of lawyers. It is understood though that a personal injury lawyer can easily make above $100,000 every year.

A Lawyer with lots of cases to resolve in a year can also cross the $200,000 mark annually. These are the statistics you will find on many websites, but the matter is not as easy as it sounds. Different lawyers make money in various scenarios and conditions. Some lawyers might not be making even half of $100,000 every year because of many reasons.

What domain a lawyer is working in is a significant factor when calculating the annual income of a lawyer. Another important factor that decides the annual income of a lawyer is how he takes the fees. Even though the per hour rates are not very common these days, some lawyers still prefer to go this way. One big reason for many lawyers for charging this way could be that they are not seeing the case ending on favorable terms.

Why many lawyers avoid, this type of fees plan is because it doesn’t give them a good return if they can win the case for the client. However, when a lawyer thinks that the case is weak, charging customers on per hour basis is considered wiser.

What type of employment a lawyer takes up is another deciding factor of his yearly income. It is hard to predict how much a self-employed lawyer would make at the end of the year since it totally depends on their personal efforts. The type of organization that employs the lawyer also decides how much he will make at the end of the year.

A lawyer serving the government will not make as much money as a lawyer working for a successful private firm. 26% of lawyers don’t work for any organizations and are rather self-employed because they want to earn big profits from their profession.

Location of the lawyer also plays a vital role in his yearly income. A lawyer located in a populated city will mostly be earning more than a lawyer working in a rural area. Lastly, how a lawyer markets himself has become the most crucial factor in a lawyer’s yearly income. Law websites are some of the most popular types of websites today.

As you can see, the types of lawyers and how much money they make depends on several factors. And this fully answers the question. Lawyers need to have themselves marketed properly and more efficiently on the internet today. A free consultation is the biggest tool of today’s lawyers to attract more clients towards them. Furthermore, lawyers can now make use of social networking platforms to market themselves and earn huge profits at the end of the year.

Families of Slain Men Want Patriots to Stop Paying Hernandez

Although the Hernandez murder and wrongful death cases are not in California, they do raise the interesting overlap. So here we discuss a civilian death claim and a criminal murder claim. In a court hearing several weeks ago, the attorney for the families of two people allegedly gunned down made a special tribunal request. He asked Hernandez lose his bonus pay. According to the lawyer, parents want the judge to bar the Patriots from paying Hernandez a $3.2 million dollar bonus.

Prosecutors say Hernandez allegedly fatally shot Daniel de Abreu and Safiro Furtado in 2012. They claim that Hernandez killed one of the men after he accidentally spilled a drink on him at a nightclub. Hernandez is accused of fatally shooting the men weeks. Also, this was just weeks before signing a 5-year contract with the Patriots for $40 million dollars.

Patriots attorney William Kennedy said the Patriots had challenged the rights for Hernandez. They say he should not receive the $3.2 million dollar bonus at all. Kennedy said he wants a court order if the team gets sentenced to pay Hernandez in an arbitration hearing. Hernandez got released from the Patriots in 2013. So this was after his arrest in connection with the death of semi-pro football player Odin Lloyd.

California Law is Similar In Death Claims

In California, this is the same type of procedure that a wrongful death attorney would use. So he would make sure there is money set aside for the survivor’s estate. However, it is hard to get such an order to issue. Also, this is since the defendant has to get convicted or found legally liable for the deaths. Last, appears in this case, however, that a stipulation by the suing parties gets entered into. But the content of which is unknown.

Hurdles and Bickering

In a case like that, at least one hurdle, survivors bickering over who gets what is not a basis to not enter the order. The next argument that is helpful to the suing parties is the contract prevents bonuses for certain violations of integrity or crimes. But again, it is hard when the case is still pending not to pay. But the arbitration agreement may allow the money to be set aside pending a court outcome.

Consequently, assuming Hernandez gets convicted of murder, families would use the findings. Also, this can be res judicata or collateral estoppel. Furthermore, this could obviate a lengthy civil trial, unlike the OJ Simpson case. But in that case, an almost all black jury found him not guilty of murder. A more balanced jury found him later liable for wrongful death.

So the biggest problem with orders like this is the 14th Amendment recognizes the right of an accused of notice and opportunity to defend. Depriving Hernandez of money to pay a lawyer is clearly problematic. Hence, a court would need to narrowly tailor any such order that would deprive him of his defense. Also, this could form the basis of a reversal on appeal.

Dash Cams Could Save Your Case

These women could pull you over and film your arrest with a dash cam
These women could pull you over and film your arrest with a dash cam

Dashboard camera videos from countries like from Russia have become increasingly popular on the YouTube hit charts. Millions view videos showing snowy crashes, bad passes, and other glaring driving oddities. However, there’s a good reason that dashcams are so prevalent in the former Soviet Union and beyond: they offer drivers and passengers ironclad evidence in the case of a crash.

Crashes also affect thousands of Americans each day. With these staggering statistics, there are many cases in which only solid evidence can pinpoint the responsible party in such an accident. So this becomes especially vital if there is a severe injury or death involved in the case.

Will Digital Technology Prove Car Accidents of the Future?

With digital technology allowing for smaller, more efficient, and cheaper cameras, they’ve gained significant traction in the United States and Canada over the last five years.

Consider that civil cases do not need evidence beyond a shadow of a doubt. Due to this, settlements and judgment can be achieved when one party has been determined to have been in majority fault for the accident. The bar of convincing a jury is much lower, and it is not uncommon to see visual evidence, such as an onboard dash cam that captures the whole incident giving one side an ironclad advantage.

Hundreds of videos are now swarming YouTube of American drivers having an extra layer of unofficial insurance when they drive. Now there can be no denying who is responsible in certain crashes, as the audio and video will clear up any misconceptions.

Will DashcmasReplace Courts of Law?

Having a dashcam is a surefire way to avoid being caught in an unnecessary court case and protected in case of a tort action. For more information about the legal ramifications of such incidents, reach out to professional legal experts. So this would be a significant reduction on our already taxed Los Angeles Court System for one. We look forward to seeing how far this technology will get integrated with the law and automobiles of the future.

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Ehline Law Firm
Personal Injury Attorneys, APLC

633 W 5th St #2890
Los Angeles, CA 90071

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