The Burden of Proof

By Philip M Halpern

Date of Publication: 2020

396 Pages


What This Book is About

In litigation, the term “burden of proof” is understood to be the requirement that a litigant must prove their case to a certain standard set forth by the court in order to obtain a favorable ruling[1]. This concept of the burden of proof, while the ultimate goal for a litigant, is often misconceptualized as a standard that only applies when you are in court, at trial, presenting your case. This book, The Burden of Proof, provides an in-depth understanding that the burden of proof is more than just an end goal – it is a technicality of trial practice that applies to every stage in the litigation process.

Written by the Honorable Philip M. Halpern, who sits as a United States District Judge of the District Court for the Southern District of New York, this book offers insight and guidance for analyzing the burden of proof at all stages in the civil litigation process. This insight prepares the reader for the most effective approaches to litigation as it conceptualizes the burdens associated with different common-law and statutory causes of action, as well as the burdens associated within each stage of civil litigation from case inception through appeals.

What I Liked About This Book

To say I enjoyed everything about this book would be putting it lightly. Starting with the organization of this book, I enjoyed its structure, and the flow between each chapter. Each chapter begins with an outline of the chapter contents, and anintroduction so the reader knows exactly what the focus of each chapter is going to be. The introduction provides the most basic overview of the chapter topic before delving into specific concepts, detailed explanations, and how the burden of proof applies to each topic. When you read about the burden of proof, it can seem like the chapters are going to be repetitive. Additionally, due to the misconception as to what the burden of proof truly is, readers may wonder prior to the start of the book how much content you can truly write about the burden of proof. While the book itself is broken up into eight chapters which transition into one another seamlessly, I’d go as far as to break this book up into two halves; the first half is truly understanding the burden of proof, and the second is how the burden of proof applies to all stages of civil litigation.

Judge Halpern begins the book with a historical breakdown of our court system, which roots from the court systems of ancient Greece and Rome, in order to provide context to the development of the burden of proof in current practice. He then breaks down, generally, what the burden of proof actually is into three key components. Once the burden of proof is established, Judge Halpern then offers consideration for the standard of proof which ties into the burden of persuasion component. The standard of proof is broken down into the four standards that can apply to your case based on the cause of action, statutes, and case law. The end of the first half of this book then breaks down the common-law and statutory burdens of proof. This first half sets up a nice framework for the second half of the book, which walks you through the use of burden of proof throughout the stages of litigation. Judge Halpern discusses burden of proof and its uses through four main chapters: 1) burden of proof in discovery, 2) burden of proof in dispositive motions, 3) trial preparation based on the burden of proof, and 4) appeal based on the burden of proof.

What I enjoyed most was that within the four main chapters, Judge Halpern takes the time to truly break down each aspect of the litigation process and how the burden of proof applies. As I was reading each chapter, I did not find myself seeking additional clarification or pondering particular “what ifs” which tend to happen with books that offer guidance for practice. For example, most attorneys know that discovery is the stage in litigation where you establish what your proof is going to be on your cause of action or defense, and when you discover the other side’s contentions or proof.[2] Judge Halpern goes on to explain that there are several discovery devices to utilize, and when determining the best device to utilize, the burden of proof is the greatest item to consider as certain discovery devices work best for burden of proof. When discussing summary judgment, Judge Halpern explains exactly what summary judgment motions are, defines in great detail the elements of a summary judgment motion, walks through when you are entitled to make the motion, who holds the burden of proof, and when it shifts. Additionally, each chapter and section offers case law, applicable statutes, and examples to drive each point home which validates the points made throughout the book.

One final note I’d like to make with regard to what I enjoyed about this book, is that there isn’t necessarily an intended audience for this book, and it is of great value to anyone who reads it. To clarify, this book is clearly intended for lawyers, however, the experience of a lawyer does not diminish the book’s value. What I enjoyed is that on the one hand, the book offers practical guidance and explanations for that “new attorney” to remember as they begin to try cases. On the other hand, experienced litigators oftentimes forget about the burden of proof. Earlier this fall,I was at my internship speaking with my boss who tries cases while simultaneously serving as a town justice. I offer his experience to make this point; as we were preparing to attend court, I was asking questions about the case. At one point, I asked what the burden of proof was with regard to making a plea that the court should refrain from revoking the defendant’s driver’s license, aka what would we need to produce in order to persuade the court that the defendant should be able to keep his driver’s license. After providing an explanation as to the burden of proof, my boss thanked me for my practical thinking, admitting he would never have thought about the burden of proof when making a request to the court. Even with all the experience and knowledge a lawyer has, we can sometimes forget the basics. This book, to an experienced attorney, would ground them to the basic fundamental requirements, and remind them that the burden of proof is always worth considering.

What I Didn’t Like About This Book          

My only negative feedback about this book is that this book is written in the context of the civil litigation process, with emphasis on New York State practice. Chapter three discusses the standard of proof of “beyond a reasonable doubt,” which is the burden of proof standard in criminal cases, and chapter four is dedicated to common law and statutory burdens of proof. While criminal lawcomes from statutes, the statutory section does not go into criminal law. It could be helpful to a reader to have an in depth analysis of the burden of proof for certain criminal elements; specifically mens rea and actus reus, or some of the most common elements of a crime. Judge Halpern wrote this book given his 40+ years of active trial and appellate practice. Prior to his appointment as a District Judge, Mr. Halpern was managing partner of a firm that handled commercial litigation, estates, employment litigation, real estate litigation, and securities litigation. Given his vast experience with civil litigation, I understand the content of this book revolving around civil litigation. This is not to say that these concepts are not to be considered and applied in criminal litigation practice as they absolutely can. I thought this book was fantastic and finding something I didn’t like about the book was extremely difficult, therefore my negative feedback is extremely nit-picky.

What This Book Taught Me About Advocacy

One of the things this book taught me about advocacy is how crucial the burden of proof is. The burden of proof is not just an end goal, it’s a multi-level standard in litigation. The first “level” in the burden of proof is to meet the minimum requirements to bring a cause of action against another individual or entity. The burden of proof begins with the elements of each claim, and if you cannot show that all elements of the cause of action are met, the burden of proof is not met and therefore the claim is moot. Once the minimum requirements are met, it is then up to the weight of the evidence to determine whether or not the burden of proof is met.

The burden of proof is a “tiebreaker mechanism,” a mechanism that is needed to adjudicate cases where the evidence is closely balanced, or where parties (for whatever reason) fail to tender any admissible evidence.[3] As an advocate, I need to constantly remember that the burden of proof remains at every stage of litigation. If I am a plaintiff’s attorney working on a case at intake, before I choose to present it to a judge or jury, I need to ensure that I am able to uphold my obligation to establish facts that support the cause of action I am bringing on behalf of my client. Additionally, I need to ensure that I am able toproduce the appropriate evidence in order to not only meet the burden of proof, but to persuade a judge or jury that all of the elements within the cause of action are met in order to return a verdict favorable to my client. If I am acting in the capacity of a defense attorney, the burden of proof applies in holding my adversary accountable. If the burden of proof is not met in establishing even one element of the cause of action, I need to be prepared to make a motion either dismissing a specific cause of action if I choose not to answer the complaint, or a motion for summary judgment after the pleading stage. If I plan to present any affirmative defenses, I need to remember that I am now creating a burden for the case I will be presenting to a judge or jury, and I need to meet the burden of proof for my affirmative defenses.

How I Will Be a Better Advocate as a Result of This Book

While reading this book, I had the honor of simultaneously taking The Anatomy of a Trial: The Burden of Proof seminar with Judge Halpern at the Elisabeth Haub School of Law at Pace University. This seminar echoed all points madewithin this book, and in listening to his vast knowledge and experience when pleading the importance of the burden of proof, I truly believe that everything I learned from Judge Halpern will make me a better advocate.

We all know that preparation is key when it comes to litigation and advocacy, and cases can be won or lost based on the preparation you put in. This book cooperates with the “preparation is key” concept in reminding the readers that your most prepared case is one where you meet your burden of proof. Imagine buying a book to read, and as you are reading you come to find that 100 pages from the center of the book are ripped out and missing. With the missing pages, you cannot establish what story was to be told in those 100 missing pages, and ultimately your entire story is incomplete. That is how the burden of proof works in litigation. If you appear in court and fail to meet your burden, a judge nor a jury will be able to establish a crucial point to your case; a point that your case relies upon to be successful. Not only do you have an incomplete case, but you’ve essentially wasted the court’s time by presenting a case where you knew your burden could not be met.

This book prepares readers for the real world, however the important points can apply to the mock-trial advocate as well. Mock trial is meant to be a simulation of real world advocacy, however if you have competed in amock trial competition you know that many mock trial fact patterns omit information that, in the real world, could be crucial in meeting your burden of proof. As a prosecutor, or plaintiff’s attorney, in a mock trial competition – go through each and every element within your cause(s) of action and ensure you highlight each fact that meets the burden of proof for that element. If you are a defense attorney in a mock trial competition, hold your adversary to their burden. Know the elements and if they fail to meet their burden on any of the elements, they fail to produce, or fail to persuade the jury with evidence that would meet their burden of proof. That is how you attack and discredit your adversary’s case.

The burden of proof is simple, straightforward, and essential. Advocates are constantly seeking the best methods and practices to stand out and be successful. While a lot of that comes from talent and best practices, it can also come from utilizing the basics. If advocates can constantly keep the burden of proof in mind, they will never fail in “looking good” in front of a judge and/or jury, and success will follow suit.

[1] Philip M Halpern, The Burden of Proof, 41 (2020).

[2] Id. At 171.

[3] Id. at 45.