Also known as: risks of nonpersuasion · risk of non-persuasion · burden of persuasion
Written by attorneys · grounded in primary & secondary sources — see below
The burden borne by a party to convince the trier of fact of the existence of a fact or element. Failure to meet this burden results in an adverse determination on the issue when the evidence is in equipoise or otherwise insufficient.
Dylan petitions for intestacy after Jordan dies and supplies prima facie proof of death, venue, and heirship. Peggy offers a digital document as a will and presents metadata plus testimony about estate discussions. The court finds the document lacks witnesses and that Jordan showed memory lapses before death. Because Peggy bears the risk of nonpersuasion on due execution and capacity, the estate passes to Dylan under intestacy rules.
Nova Development sues Pacific Estates for breach after water damage and offers maintenance logs suggesting a pattern of pipe neglect. Pacific Estates counters with a notarized acceptance certificate. Under the governing rule the logs create only a production burden on causation. Nova Development retains the risk of nonpersuasion on the ultimate issue of breach, so the trier may still find for Pacific Estates if the evidence remains evenly balanced.
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After conviction for felony use of a firearm, the state seeks a mandatory minimum sentence based on visible possession. The defendant offers psychiatric evidence of emotional disturbance. The court requires the state to carry the risk of nonpersuasion on the sentencing fact by a preponderance. Because the evidence is inconclusive, the minimum sentence cannot be imposed.
Delta sues United for underreported royalties and United moves for summary judgment with spreadsheets and an addendum. Delta shows the cited materials leave open the possibility of underpayment. United therefore retains the risk of nonpersuasion on the absence of a genuine dispute. The motion is denied because United failed to eliminate that risk.
An employee sues for age discrimination and offers evidence of a younger replacement. The employer moves for judgment as a matter of law. The employee retains the risk of nonpersuasion on whether age was a motivating factor. Because the evidence does not persuade the trier that age played any role, judgment is entered for the employer.
A plaintiff sues a corporation in federal court asserting diversity jurisdiction. The corporation shows its principal place of business is in the same state as the plaintiff. The plaintiff bears the risk of nonpersuasion on complete diversity. Because the evidence fails to persuade the court otherwise, the case is dismissed for lack of jurisdiction.
The risk of nonpersuasion requires a party to convince the trier of fact on an issue or lose on that issue if the evidence is inconclusive. The burden of production requires only that a party come forward with enough evidence to avoid an adverse ruling as a matter of law. The risk of nonpersuasion never shifts once assigned while the production burden may move during trial.
Supporting sources
The proponent of a will bears the risk of nonpersuasion on due execution in all cases. The contestant bears the risk on lack of capacity, undue influence, fraud, or revocation. Each party carries the ultimate risk on the matters for which it holds the initial burden.
Supporting sources
No. A presumption shifts only the burden of production unless a statute or rule expressly shifts the risk of nonpersuasion. When the evidence is merely statistical and no independent source of law recognizes a presumption, the original party retains the risk of nonpersuasion on the ultimate fact.
Supporting sources
…658, 104 S.Ct., at 2046. But the adjectives "strong" and "heavy" might be read as imposing upon defendants an unusually weighty burden of persuasion. If that is the majority's intent, I must respectfully dissent. The range of acceptable behavior defined by "prevailing professional norms," ante, at 688, seems to me sufficiently broad to…