What is the Burden of Proof in a Personal Injury Case in Texas?

Burden Of Proof For Negligence – Preponderance of the Evidence

Scales of justice and gavelGenerally, in order to prove that someone else’s negligence caused you damages, the aggrieved party (plaintiff) bears the burden of proof to prove each element of their cause of action by a “preponderance of the evidence.”  A preponderance of the evidence mean the greater weight and degree of credible evidence.  Another way to say it is that it is a “more likely than not” standard. If the jury finds that a particular fact is more likely than not to be true, then they must find that it is true. They do not have to be certain about it or sure.

This standard is kind of like a 51% rule. If you think its 51% change it’s true, then you find that it is true. The standard is often described using the example of the scales of justice. If you imagine all of one side’s evidence for a fact in one side and all of the other side’s evidence against a fact in the other, if the scales tip in favor of the fact ever so slightly, then it is true.

Interestingly, this “majority wins” rule of 50% or more does not apply when it comes to individual jurors opinions. For a plaintiff to recover for negligence, 10 out of 12 jurors must agree on each element of the claim. Having a lesser majority of jurors (whether it be 7 out of 12, 8 out of 12, or 9 out of 12), is still a loss to the plaintiff.

Burden of Proof For Punitive Damages – Clear and Convincing Evidence

Due to tort reform changes in the law, the burden of proof for punitive damages (also known as exemplary damages) is much higher than that of ordinary negligence.  In order to recover for punitive damages, you must prove your case by “clear and convincing evidence.”  Clear and convincing evidence means “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.”

In addition to a higher burden of proof standard, punitive damages require a unanimous jury.  This means that if a single juror does not have a firm belief or conviction as to the truth of the allegations made by the plaintiff justifying punitive damages, then that single juror prevents the other 11 jurors from awarding punitive damages.


Paul Cannon