Professional Documents
Culture Documents
Standard
Proof
in
Civil
Cases
I.
The
standard
of
proof
in
civil
cases
has
been
much
discussed
in
actions
for
negligence
where
there
is
no
direct
proof
of
negligent
acts
or
omissions
The
burden
of
proof,
is,
of
course,
on
the
plaintiff.
II.
It
has
been
said
that
it
is
no
enough
to
offer
a
"pure
conjecture,"
there
must
be
a
"reasonable
inference,"
that
is
to
say
something
more
weighty
than
a
mere
possibility.
III.
Lord
Macmillan:
The
dividing
line
between
conjecture
and
inference
is
often
a
very
difficult
one
to
draw.
A
conjecture
may
be
plausible,
but
it
is
of
no
legal
value,
for
its
essence
is
that
it
is
a
mere
guess.
An
inference
in
the
legal
sense
on
the
other
hand,
is
a
deduction
from
the
evidence,
and
if
it
is
a
reasonable
deduction
it
may
have
the
validity
of
legal
proof...
the
cogency
of
a
legal
inference
may
vary
between
practical
certainty
and
reasonable
probability.
IV.
If
we
turn
now
to
the
usual
type
of
case
where
there
is
direct
evidence
and
probable
inference
(or
one
or
other
of
them)
on
both
sides,
the
question
becomes
one
of
the
WEIGHT
of
evidence,
not
of
sufficiency.
It
is
the
duty
of
the
court
or
jury
to
decide
the
issues
according
to
the
weight
of
the
evidence,
and
an
appeal
lies
if
it
fails
to
do
so.
V.
Lord
Mansfield:
As
mathematical
and
absolute
certainty
is
seldom
to
be
attained
in
human
affairs,
reason
and
public
utility
require
that
judges
and
all
mankind
in
forming
their
opinion
of
the
truth
of
facts
should
be
regulated
by
the
superior
number
of
probabilities
on
the
one
side
or
the
other.
VI.
That
is
to
say,
a
civil
case
is
decided
according
to
the
balance
of
the
probabilities,
not
indeed
by
counting
the
number
of
arguments
on
each
side,
but
by
assessing
which
version
is
more
likely...
regard
to
the
whole
of
the
facts
and
the
suggested
inferences
arising
from
them.
The
task
of
the
advocate,
in
formulating
his
argument,
is
to
bear
a
superior
weight
of
probability
Standard
of
proof
in
criminal
cases
I.
The
standard
of
proof
in
a
criminal
case
is
necessarily
much
higher
the
guilt
of
the
prisoner
has
to
be
proved
beyond
all
reasonable
doubt.
The
hers?
If
so,
what
was
the
explanation
of
how
they
got
there?
(Implied
inference:
there
is
no
explanation
consistent
with
Crippen's
innocence)
III.
ARGUMENTS
ON
THE
LAW
A. Arguments
on
questions
of
law
are
very
different
from
arguments
on
the
facts.
No
questions
of
probability
arise
here,
for
law
is
a
science,
that
is
to
say
a
body
of
general
principles,
though
it
is
not
an
exact
science
like
mathematics
B. Genesis
of
principles
of
law:
1.
the
first
stage
is
that
a
judge
decides
a
case.
He
decides
what
he
believes
to
be
objective
standards
of
justice.
2.
From
a
series
of
such
cases
general
principles
emerge.
This
is
the
second
stage.
3.
In
the
third
stage
ample
sources
are
available.
The
duty
of
the
judge
is
then
to
decide
the
case
according
to
settled
principles.
C. According
to
this
interpretation,
law
is
an
inductive
science,
building
up
flexible
principles
of
objective
justice
on
the
basis
of
stubborn
fact.
The
enunciation
of
principles
I.
It
is
a
very
bad
fallacy
in
legal
argument
to
rely
on
a
case
which
is
said
to
be
"on
all
fours"
with
that
which
is
being
decided.
The
law
reports
are
full
of
cases
which
are
on
all
fours
with
one
another,
but
were
decided
in
the
opposite
way,
because
their
resemblance
was
apparent
only
and
not
real.
II. An
advocate
who
is
presenting
an
argument
of
law
hopes
that
his
submissions
will
form
the
foundation
of
the
judgment
of
the
court.
Therefore
the
arguments
should
be
sound
and
not
specious,
and
formulate
on
much
the
same
lines
as
the
judge
would
formulate
them
in
his
judgment.
III. Stages
1.
Formulate
the
general
propositions
of
law
which
the
court
is
invited
to
accept.
2.
Offer
any
array
of
cases
in
support
of
these
propositions.
If
cases
have
to
be
distinguished,
they
should
be
distinguished
on
principle.
IV. Failing
any
principle
which
governs
the
case,
the
best
line
is
the
argument
from
analogy,
a
fertile
source
of
arguments,
which
is
in
fact
the
main
builder
of
our
common
law:
for
the
whole
of
the
law
of
tort
and
contract
developed
in
the
Middle
Ages
from
the
prototype
of
Trespass,
party
on
the
initiate
of
the
courts
and
party
under
the
influence
of
the
statute
in
Consimili
Casu.
Questions
of
degree
or
of
discretion
I. Often,
problem
is
not
so
much
to
determine
the
correct
principles
of
law,
as
to
apply
them
to
the
facts
of
the
case:
and
this
may
involve
questions
of
degree,
such
as
whether
certain
proved
omissions
were
"negligent,"
or
whether
a
certain
machine
was
"dangerous.
Such
a
The
construction
of
statutes
and
documents
I.
By
convention,
the
construction
of
a
statue
or
a
document
is
a
question
of
law
for
the
court,
though
in
reality
it
is
a
question
of
fact.
II. The
judge
decides
according
to
his
own
particular
judgment,
according
to
the
various
indications
in
the
document:
probabilities
come
into
play,
as
in
no
other
arguments
of
law.
III. The
groundwork
in
such
a
case
is
to
outline
the
scheme
and
background
of
the
statute
or
document.
The
rest
of
the
argument
will
be
taken
up
with
drawing
attention
to
the
sort
of
considerations
in
the
document
on
which
the
judge
may
act.
and
also
to
drawing
out
the
various
probabilities
which
can
be
raised
in
favor
of
the
construction
contended
for.
To
decide
upon
proven
probabilities
is
not
to
guess
but
to
adjudicate.