Copyright (c) 1996 Brooklyn Law School
Brooklyn Law Review
ARTICLE: PREPONDERANCE, PROBABILITY AND WARRANTED FACTFINDING *
* (c)1996 Vern R. Walker. All Rights Reserved.
62 Brooklyn L. Rev. 1075
Vern R. Walker **
Legal factfinding is a process governed by procedural rules, evidentiary rules on admissibility and exclusion, legal sufficiency rules, rules of presumption and standards of proof. It has as its goal the generation of warranted findings of fact. This Article explores what it means for a factual determination to be "warranted by a preponderance of the evidence," the traditional formulation of the standard of proof in civil litigation. 1 Courts have interpreted this standard as meaning that the party having the burden of persuasion on a proposition must prove that the proposition is "more probably true than false." 2 It is also said that the "weight" or "convincing force" of the evidence in favor of the proposition must be "greater than" the weight of evidence tending to establish the assertion's falsehood. 3
Many courts and most theorists have gone further, however, explaining the meaning of "probably true" in terms of probability measured on a cardinal scale between 0 and 1, 4 and locating the threshold of "preponderance" on that scale as 1/2 , 0.5 or 50%. 5 This further interpretation has sometimes led to troubling results. In the "lost chance cases" in tort law, for example, this cardinal interpretation has led some courts to hold that the plaintiff must prove a "better-than-50% chance" of surviving but for the defendant's negligence, which may be impossible if the plaintiff's chance of survival was less than 50% even before the negligence. 6 Other courts facing lost chance cases ...
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