Car accident burden of proof refers to two legal notions: the burden of production, of going forward with evidence, and the burden of persuading the jury or judge that the alleged fact is true. Unless noted otherwise, we are discussing the burden of persuasion.

The injured person in a car accident has the burden of proof to show that the defendant driver’s negligence caused the accident and the person’s injuries. Loeb v. Board of Regents, 29 Wis. 2d 159, 164 , 138 N.W.2d 227 (1965). The burden of proof rests with the party arguing that the answer to a question in the verdict should be “yes.” See Wis. JI–Civil 200. The jury cannot base its decision on argument, and in the absence of proof on an issue for which a party has the burden of proof, that party cannot prevail. La Chance v. Stuart, 233 Wis. 246, 251 (1939). The burden of proof never shifts; it remains on the same party throughout the entire case. Scholz v. Industrial Comm’n, 267 Wis. 31 (1954). However, the burden of production or going forward with the evidence, shifts to the other party once the party with the burden presents credible evidence with what is a prima facie case. Reinke, 53 Wis. 2d at 133, or when the party seeking relief has the benefit of a rebuttable presumption.

In a car accident case, the injured person must meet the ordinary burden of proof, meaning he or she must convince the jury to a reasonable certainty by the greater weight of the credible evidence that the facts are what he or she states they are. Wangen v. Ford Motor Co., 97 Wis. 2d 260, 299 , 294 N.W.2d 437 (1980). The “reasonable certainty” language is unfortunate and not staight forward. It implies a higher burden of proof such as “beyond a reasonable doubt” used in criminal cases. The ordinary burdern is better characterized as “fair preponderance” or even better, “more reasonable than not.” In other words, the party wins the burden of proof if the scales of justice are tipped in his or her favor 51% to 49%. See Wis. JI–Civil 200.

In normal negligence cases, the injured party bears the burden of proving that the defendant driving was negligent and that the negligence was a substantial factor in producing the harm suffered by the plaintiff. See Wis. JI-Civil 1500.

In Milwaukee, Wisconsin McCormick Law Office represents persons injured by negligent drivers, resulting in medical bills, wage loss, pain, suffering and disability. Our attorneys get the best results obtaining money damages for injured persons when there is credible evidence to a reasonable certainty.