From the common-law evidence tradition, as set out by John Henry Wigmore (A Treatise on the System of Evidence in Trials at Common Law, 1904) and Charles T. McCormick (Handbook of the Law of Evidence, 1954).
Asks two questions of any disputed claim: who has to prove it, and to what standard, so the argument centers on what must be shown.
When to reach for it
Debate over a claim keeps going in circles, or one side keeps demanding that the other disprove what was never established.
How it runs
- State the disputed claim precisely.
- Name who is asserting it.
- Place the burden on that person by default.
- Set a standard of proof that matches the stakes.
- Test the evidence against that standard.
- Refuse attempts to shift the burden to the other side.
Where it sits in SOLVE eX
Go to the source
- A Treatise on the System of Evidence in Trials at Common Law, Little, Brown, 1904
- Handbook of the Law of Evidence, 1954