The court acknowledged that there are "several problems with this approach," the most obvious being that it reduces the incentive to use a special committee if all of its decisions can be second-guessed and weakens its utility as a "reliable pre-trial guide to the burden of persuasion
The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion
is on the State to disprove the affirmative defense beyond a reasonable doubt (e.
held that a patent challenger "bears a heavy burden of persuasion
15) A closely related device is the affirmative defense: a requirement that the defendant bear the ultimate burden of proving a defense can be functionally equivalent to an inference that shifts the burden of persuasion
on an element of the claim or offense.
Imagine a single disputed issue of typical fact on which the plaintiff bears the initial burden of production and the burden of persuasion
at 8 ("[O]ne otherwise an infringer who assails the validity of a patent fair upon its face bears a heavy burden of persuasion
The plaintiff then assumes the burden of persuasion
to demonstrate by a preponderance of the evidence that the defendant's explanation is mere pretext (98) and to then convince a jury that the employer was instead motivated by age bias.
affirmative defense and placed the burden of persuasion
Finally, the distinction between a burden of persuasion
and a burden of production eliminates Title VII as a viable analogy on which to rely.
After a hearing, an Administrative Law Judge (ALJ), who heard the case on behalf of the NLRB, dismissed the Union's complaint ruling that the Union failed to carry its burden of persuasion
that anti-union animus was a motivating factor in the hospital's subcontracting decision.
There is the requirement of initially going forward with a burden of proof that a plaintiff has, and something called burden of persuasion
28) The burden of persuasion
follows if the burdens of production are met and both parties have presented all their evidence.
in the substantive criminal law, may allocate the burden of persuasion
(45) to the defense.
In no other area of personal injury trial practice is the gap between meeting the technical burden of proof (which I define as surviving a motion to dismiss at the close of my case) and meeting the burden of persuasion
(which I define as providing a basis for a jury verdict in my client's favor) so potentially large.
But if this point is conceded or the policyholder shoulders the burden, the burden of persuasion
then shifts to the insurer if the insurer is seeking to successfully interpose an exclusion to coverage, whether the exclusion be for an "intentional act," "expected or intended injury," "self-inflicted injury," or a "criminal act.