The burden (standard) of proof

2010-01-05T17:04:00.005Z

The burden of proof is the obligation on a party to establish the facts in issue in a case to the required degree of certainty (the standard of proof) in order to prove their case.
It is rarely possible for any investigation, fire or otherwise, to be concluded with 100% certainty. There is thus always an element of doubt. The question is of course at what level of proof is it reasonable to atribute blame. The consequenses of any conviction are of course severe and life-changing for the parties involved: Incarceration at Criminal Court, loss of livelihood at Civil Court.
Cases are not normally concluded on the basis of one single element alone but expert reports can be pivotal.
So if 100% proof is not attainable what level of proof IS acceptable?
90%?, 80%?, 51%?
The answer is: None of the above.
It is not practical to define proof as a percentage. After all, in terms of the actual evidence what would be the tangible difference between 80% and 81% proof?. It is entirely subjective and open to wide interpretation and critisism.

There are in fact two levels of proof: One for Criminal Law and one for Civil Law.
The burden, or standard, of proof for Criminal cases is "Beyond all reasonable doubt"
The burden, or standard, of proof for Civil cases is "the balance of probabilities"
There is a considerable difference.
In criminal cases the level of proof is reasonably clear but in Civil cases, technically, all that is required is a level of proof beyond 50%! That is an extremely low basis on which to make potentially life-changing decisions but it can happen. In practise, in insurance-related and some other civil matters, there are legal directions that cases should be considered proved only with a significantly higher level of proof than 50+%. It has not been defined but only suggested that proof should be near to 75%. This is reasonable.
But what about cases that do not go to the Courts. Insurance claims are a civil matter and adjusters may refuse a claim on the basis of proof considerably less than 75%. These decisions should be challenged vigorously.
I have successfully represented a number of claimants under these circumstances.

What is an expert?

2009-11-15T11:39:00.004Z

If a person has skills or expertise in any particular field and those skills are qualified by study, training and experience AND those skills are validated by by peers or seniors in the field then that person may rightly be considered to be an expert. But what makes one expert better than another in the same field?
Is it experience, study, training, character?
Does it matter how many post nominals follow the name?
Is it relevant how many years the person has been in practise? Is this a fair measure of experience?

The answer is all and none:
Some post nominals are no more than a subscription. Those that are earned show a commitment and ability to study and to learn but do not necessarily make a good practitioner. Nor do they show a greater intellect.
Training in the modern world is rarely assessed. Certificates of attendance show a candidate has been presented with the knowledge. They do not prove that knowledge has been absorbed.
Experience is dependant on the quality of that experience. A person may have investigated 100 fires but who can say if the results are accurate? A person in practise for 10 years may have had 100 investigations in that time or only 10.

If you want an expert then you need the RIGHT expert. Ask for a CV. Ask for previous client contacts. Call those contacts. Interview your expert. Does he or she have the right background to handle your case?

David Townsend - Fire Expert Witness

The burden (standard) of proof

What is an expert?