More likely than not, movies and TV mislead about the burden of proof in civil cases

Most people have seen courtroom dramas. Attorneys yell at each other. The judge cautions the attorneys. The witness fires back at the cross-examining attorney. Passionate arguments are made to the jury during closing arguments. The suspense builds as the jury renders its verdict.

Perhaps the most popular courtroom dramas on television are Law and Order and Crime Scene Investigation. But are these television shows and other movies an accurate depiction of what happens in real life? As with almost any question to an attorney, the answer to this question is “it depends.”

The most fundamental part of the answer is whether the case is a criminal or civil one. This is due to the different standards that apply in these types of cases. Because jurors are entitled to consider the evidence in light of their own observations and experiences in the affairs of life, which includes learning the law from television shows and movies, confusion frequently arises about which standard applies in civil cases.

If you have seen any courtroom TV drama, you may know that in a criminal case, the state must prove the defendant is guilty of a crime beyond a reasonable doubt. However, civil cases are different. The plaintiff in a civil case must prove his or her case by what is known as “the preponderance of the evidence.” Every jury hearing a civil case in Arkansas will hear the following instruction from the trial judge:

A party who has the burden of proof on a proposition must establish it by a preponderance of the evidence, unless the proposition is so established by other proof in the case. “Preponderance of the evidence” means the greater weight of evidence. The greater weight of evidence is not necessarily established by the greater number of witnesses testifying to any fact or state of facts. It is the evidence which, when weighed with that opposed to it, has more convincing force and is more probably true and accurate. If, upon any issue in the case, the evidence appears to be equally balanced, or if you cannot say upon which side it weighs heavier, you must resolve that question against the party who has the burden of proving it.

In other words, the plaintiff must prove his or her version of the facts is more probably true and accurate than the defense’s version of events. Stated another way, the jury must have a 51% confidence factor to rule for the plaintiff. Perhaps the best analogy of this principle are the scales of justice seen at right:

If a plaintiff (represented by the scale on the left) tips the scale slightly more than the defendant (represented by the scale on the right), then the jury should find in favor of the plaintiff. However, if the scales are even, or if the scales tip slightly in favor of the defendant, then the jury should find in favor of the defendant.

Most courtroom dramas I have seen involve criminal cases. “The Judge” came out in 2014 starring Robert Duvall and Robert Downey, Jr., which provided a good example of the application of the beyond a reasonable doubt standard of proof in criminal cases. “Twelve Angry Men” stars Henry Fonda, and is an interesting perspective from the inside of a jury’s deliberation. “And Justice For All” starred Al Pacino at his finest, whereby he is forced into a dilemma of defending a judge guilty of a crime, and at the same time defending other innocent clients. Any John Grisham book made into a movie is a good choice. One of the few movies regarding civil cases is “The Rainmaker,” starring Matt Damon as a young attorney representing a plaintiff’s family in a bad faith case against an insurance company. Another movie providing an example of a civil case is called “A Civil Action,” starring John Travolta, who represents several families affected by contaminated groundwater in Woburn, Massachusetts.

So are these movies an accurate portrayal of a real life courtroom? You’ll have to watch to find out.