# Civil lawsuit: plaintiff's word vs nothing **URL:** \ **Category:** Factual Questions\ **Created:** [December 2, 2019, 5:19pm UTC](https://boards.straightdope.com/t/civil-lawsuit-plaintiffs-word-vs-nothing/844278 "2019-12-02T17:19:40Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [December 4, 2019, 1:45am UTC](https://boards.straightdope.com/t/civil-lawsuit-plaintiffs-word-vs-nothing/844278/41 "2019-12-04T01:45:44Z")
> [@Kearsen1](#): > > Not exactly, if someone can’t PROVE that they were abused by a priest, better not CIVILLY sue. If a person is prepared to testify under oath, and subject to cross examination, that they were the victim of the defendant’s tortious conduct, then, as a matter of law, they have presented sufficient evidence to prove their case, presuming the fact finder believes them. That’s all they have to do: come forward and testify. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [December 4, 2019, 5:58am UTC](https://boards.straightdope.com/t/civil-lawsuit-plaintiffs-word-vs-nothing/844278/42 "2019-12-04T05:58:37Z")
> [@Cayuga](#): > > So what you’re saying is: Everyone knows that McDonald’s is (was) selling a product that causes surgery-requiring injuries if that product comes into contact with the purchaser within, say, 10 minutes of the purchase. So anyone who attempts to use that product within 10 minutes of purchase is an idiot who deserves such injuries and the surgery required to remediate them. > > I have issues with that, but I’ll let it go. Instead, I’ll just point out that you seem to have missed the part where the McDonald’s coffee was 20 degrees — if not more — hotter than any coffee sold anywhere else in town. Don’t want to hijack, but - I’ve said my opinion. We also have companies selling blenders that will take your fingertips off, cars that run you over, tires that blow out at high speed if you don’t inflate them sufficiently, electrical devices that should not be near water, alcohol that lets you do stupid lethal things if overconsumed. The world is full of dangerous products but adults are expected to exercise caution and judgement. I don’t want to debate coffee, I just pointed out that there are plenty of lawsuits about stuff that may run counter to common sense that can cost plaintiffs a lot if they bet on common sense winning. But to return to the OP’s question… If someone alleges something - say, sexual abuse as a child, decades down the road when records logically no longer exist for perfectly legitimate reasons… and never mentioned the problem until about the time they filed a lawsuit, cannot produce any evidence that the alleged perp acted in the alleged manner with anyone else (pattern of behaviour), not long history of counselling or mental issues that could be related to the trauma, nor anything other than their recollection - IANAL, I don’t know what would happen with that case, but it looks pretty weak to me. The other problem is that the person would, absent corroborating evidence, might perhaps also have to demonstrate that this was not a fabrication based on a perceived profit motive. The scary part is that the type of person who had spent 40 years suffering from abuse might have history of behaviour problems that would make them appear an unreliable witness also. SO, is this a person traumatized by childhood abuse or an addict looking for a big payoff to finance their next binge? But my thought is that there may be the occasional abuser with one weak moment, but the pattern we see with most abusers is that they are mercenary predators with a pattern of repeated behaviour, particularly if enabled/excused by their superiors, and finding corroborations of such behaviour from unconnected victims should not be difficult. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [December 4, 2019, 9:18am UTC](https://boards.straightdope.com/t/civil-lawsuit-plaintiffs-word-vs-nothing/844278/43 "2019-12-04T09:18:37Z")
And in the case of every product, society finds a balance of various factors including the usefulness of the product, the costs of harm created by the product, the profits to the seller the ease of ameliorating harms, etc. One way society does that is through regulation. Another way society does that is through the tier system. In this case, the fort system (eventually) worked the way it was supposed to. It made the cost for serving superheated coffee too high. And the fix is easy. McDonald’s was serving superheated coffee because it made tjemoennies more on each cup. Because nearly everyone walks around with a coffee in hand, it was worth it for them to keep doing it. But from society’s perspective, it makes no sense to have common beverages that everyone is holding have the characteristics of a weapon. Yes “only” 700 people suffered critical burns in X years. But that was a societal and individual harm that was unnecessary and trivially easy to eliminate. The fort system is somewhat comparable to insurance. The problem with useful products like tractors or coffee is that for the most part society benefits from them. But inevitably a small number of individuals are going to suffer catastrophic harm. What torts do is to help those few individuals that will inevitably be harmed receive compensation from the company making all the profit. And in the case of McDonald’s, the company is making so much profit that it can afford to compensate the individuals and also easily implement a long-term fix. ---
**Author:** ![bob\_2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bob_2/32/3341_2.png) [@bob\_2](https://boards.straightdope.com/u/bob_2)\ **Post date:** [December 4, 2019, 10:03am UTC](https://boards.straightdope.com/t/civil-lawsuit-plaintiffs-word-vs-nothing/844278/44 "2019-12-04T10:03:37Z")
> [@Northern\_Piper](#): > > The insurance company doesn’t have the power to settle without the consent of the defendants. > > The insurance company has the power to say that they recommend settlement, and will negotiate the best settlement they can get… But, if the defendants aren’t prepared to enter into settlement negotiations, the company can advise that they will not pay for counsel on the case if that recommendation is refused. > > It still would be open to the defendants to defend themselves, at their own cost. > > It’s also common for settlements to be without admission of liability. The defendants, in this case, The British Scout Movement, did consent. The people involved were not even consulted and that’s why they were so upset. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [December 4, 2019, 3:36pm UTC](https://boards.straightdope.com/t/civil-lawsuit-plaintiffs-word-vs-nothing/844278/45 "2019-12-04T15:36:47Z")
It’s worth mentioning here that, in a civil case, nobody needs to prove anything. The standard of evidence in civil law is “the preponderance of the evidence”: If the jury thinks that the plaintiff’s claim is 51% likely to be true and the defendant’s 49%, they’re supposed to find for the plaintiff. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 4, 2019, 3:41pm UTC](https://boards.straightdope.com/t/civil-lawsuit-plaintiffs-word-vs-nothing/844278/46 "2019-12-04T15:41:44Z")
That is proving something. The plaintiff has the onus of proof. If the plaintiff doesn’t meet that standard, the case fails. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [December 4, 2019, 3:57pm UTC](https://boards.straightdope.com/t/civil-lawsuit-plaintiffs-word-vs-nothing/844278/47 "2019-12-04T15:57:22Z")
I would reserve the word “proof” for something a lot stronger than 51%. Evidence, sure, but not proof. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [December 4, 2019, 4:07pm UTC](https://boards.straightdope.com/t/civil-lawsuit-plaintiffs-word-vs-nothing/844278/48 "2019-12-04T16:07:02Z")
> [@Chronos](#): > > I would reserve the word “proof” for something a lot stronger than 51%. Evidence, sure, but not proof. You can reserve it for that if you like, but the legal term is “standard of proof”. I’ve never seen a definition of “evidence” that would make sense if it were substituted for your phrase “standard of evidence” - “standard of facts or observations presented in support of an assertion” doesn’t make much sense. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [December 4, 2019, 4:07pm UTC](https://boards.straightdope.com/t/civil-lawsuit-plaintiffs-word-vs-nothing/844278/49 "2019-12-04T16:07:33Z")
> [@md2000](#): > > …but of course, you have your viewpoint and I have mine and we will continue to disagree on this. And that’s why it’s a bad argument for a “frivolous case.” It doesn’t just mean a case where you disagree with the judgment. It is one where no reasonable person could have sided with the plaintiff. You want frivolous cases? Try the recent music cases where three notes or having a similar style is enough to infer copyright infringement. Or, worse, the ones that they have no hope of winning, like all the various SLAPP suits where the point is to punish the person by making them have to pay legal costs, even when the case will be dismissed. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [December 4, 2019, 5:52pm UTC](https://boards.straightdope.com/t/civil-lawsuit-plaintiffs-word-vs-nothing/844278/50 "2019-12-04T17:52:34Z")
So what does one call a lawsuit where the strategy is to rely on the sympathetic appeal of the plaintiff? Besides “cynical”? Would a burly ex-con with face tattoos and a big beard win millions of dollars suing over severe burns to his knee, versus a sweet old lady with severe burns to an intimate area? (This is a known strategy. One often hears references to the need to find the “right victim” when suing in a class action or test case) Indeed, the judge in the McCoffee case reduced the judgement by more than 80%, so the judgement of the jury was not apparently what the rest of the system thought reasonable. Which, to get back to the OP’s question - there is no mechanical test for true or false, believable or not. It all boils down to appearances and impressions and human judgement whether someone is believable or not, and all is entirely subjective. Lawyers are not above exploiting the sympathies and inclinations of the jury, much as those 12 people may claim to be unbiased and objective. (Apparently there’s a whole industry devoted to analyzing potential juror reactions and how to manipulate them). ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [December 4, 2019, 7:02pm UTC](https://boards.straightdope.com/t/civil-lawsuit-plaintiffs-word-vs-nothing/844278/51 "2019-12-04T19:02:16Z")
You need to let this go. Reduction of a jury award on remittatur has nothing to do with whether “the rest of the system thinks it is reasonable.” It is generally based on purely mechanical application of statutory factors, or on whether certain evidence should not have been presented to the jury in the first place. > [@](#): > > So what does one call a lawsuit where the strategy is to rely on the sympathetic appeal of the plaintiff? Besides “cynical”? Smart. I’m a civil defense attorney. I represent (mostly) giant corporations and insurance companies. They are not sympathetic defendants. I take that into account in evaluating my cases. That doesn’t mean that the jury can find against them on elements of a case where the evidence is insufficient or non-existent, regardless of sympathy; that just means I’m going to get the judgment reversed, either by the judge or the court of appeal. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [December 5, 2019, 4:57am UTC](https://boards.straightdope.com/t/civil-lawsuit-plaintiffs-word-vs-nothing/844278/52 "2019-12-05T04:57:35Z")
The real purpose of the law is to lay out in mind-numbing detail with centuries of precedent - what the rules are. Sometimes it’s not fair (just) but at least in most circumstances you can point to laws and past judgements and determine whether you can or cannot do what you want to do. This is important when years of your life or millions of dollars may be at stake. I’m just curious how this law works in the USA. I was under then impression - maybe just in Canada - that the defendant could elect judge or jury trial. Why would an unsympathetic defendant who feels the law is on their side not choose a judge trial? ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [December 5, 2019, 5:14am UTC](https://boards.straightdope.com/t/civil-lawsuit-plaintiffs-word-vs-nothing/844278/53 "2019-12-05T05:14:43Z")
> [@md2000](#): > > The real purpose of the law is to lay out in mind-numbing detail with centuries of precedent - what the rules are. Sometimes it’s not fair (just) but at least in most circumstances you can point to laws and past judgements and determine whether you can or cannot do what you want to do. This is important when years of your life or millions of dollars may be at stake. > > I’m just curious how this law works in the USA. I was under then impression - maybe just in Canada - that the defendant could elect judge or jury trial. Why would an unsympathetic defendant who feels the law is on their side not choose a judge trial? In the U.S., either party can request a jury. (Generally). ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [December 9, 2019, 4:53pm UTC](https://boards.straightdope.com/t/civil-lawsuit-plaintiffs-word-vs-nothing/844278/54 "2019-12-09T16:53:25Z")
> [@md2000](#): > > I’m just curious how this law works in the USA. I was under then impression - maybe just in Canada - that the defendant could elect judge or jury trial. Why would an unsympathetic defendant who feels the law is on their side not choose a judge trial? Because it can’t. Civil cases in the US are tried to a judge only when both parties agree. The right to trial by jury in U.S. civil cases is a constitutional one which attaches on both sides under the Seventh Amendment, so long as the amount in controversy is more than $20. Canada has no constitutional provision guaranteeing trial by jury in civil cases; in fact, the judge generally has discretion to order a bench (non-jury) trial. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [December 9, 2019, 5:33pm UTC](https://boards.straightdope.com/t/civil-lawsuit-plaintiffs-word-vs-nothing/844278/55 "2019-12-09T17:33:56Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Because it can’t. Civil cases in the US are tried to a judge only when both parties agree. The right to trial by jury in U.S. civil cases is a constitutional one which attaches on both sides under the Seventh Amendment, so long as the amount in controversy is more than $20. > > Canada has no constitutional provision guaranteeing trial by jury in civil cases; in fact, the judge generally has discretion to order a bench (non-jury) trial. See? I learn something new every day. thank you. ---
**Author:** ![Wrenching\_Spanners](https://avatars.discourse-cdn.com/v4/letter/w/ecb155/32.png) [@Wrenching\_Spanners](https://boards.straightdope.com/u/Wrenching_Spanners)\ **Post date:** [December 9, 2019, 5:59pm UTC](https://boards.straightdope.com/t/civil-lawsuit-plaintiffs-word-vs-nothing/844278/56 "2019-12-09T17:59:40Z")
> [@Procrustus](#): > > In the U.S., either party can request a jury. (Generally). Is that true for US criminal trials? I know the defendant can always ask for a jury trial, but if the defendant asks for a bench trial, can the prosecutor still demand a jury trial? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [December 9, 2019, 6:16pm UTC](https://boards.straightdope.com/t/civil-lawsuit-plaintiffs-word-vs-nothing/844278/57 "2019-12-09T18:16:10Z")
No. The right to a jury trial in criminal cases attaches to the defendant only (absent a quirk of state law). ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [December 9, 2019, 6:34pm UTC](https://boards.straightdope.com/t/civil-lawsuit-plaintiffs-word-vs-nothing/844278/58 "2019-12-09T18:34:12Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Because it can’t. Civil cases in the US are tried to a judge only when both parties agree. The right to trial by jury in U.S. civil cases is a constitutional one which attaches on both sides under the Seventh Amendment, so long as the amount in controversy is more than $20. > . Does this only apply to cases in Federal court? If it applies to state courts, I don’t understand how there can be small claims courts. Sent from my iPhone using Tapatalk ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [December 9, 2019, 6:50pm UTC](https://boards.straightdope.com/t/civil-lawsuit-plaintiffs-word-vs-nothing/844278/59 "2019-12-09T18:50:21Z")
The Seventh Amendment itself only applies in federal case, but every state has essentially the same provision in its state constitution (just with different threshhold numbers). _Liebeck_ was a federal case. I should also note that the 7A only applies to causes of action which required trial by jury at common law, which is why lots of things that didn’t exist back then such as workers’ compensation do not require jury trials. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [December 9, 2019, 6:59pm UTC](https://boards.straightdope.com/t/civil-lawsuit-plaintiffs-word-vs-nothing/844278/60 "2019-12-09T18:59:45Z")
> [@Really\_Not\_All\_That\_Bright](#): > > No. The right to a jury trial in criminal cases attaches to the defendant only (absent a quirk of state law). This link indicates otherwise [https://www.cato.org/publications/commentary/right-choose-trial-jury-or-judge](https://www.cato.org/publications/commentary/right-choose-trial-jury-or-judge) > [@](#): > > under federal law, prosecutors have the option to accept or reject a jury trial waiver I know when I practiced criminal law in Washington, the matter was unsettled for state court. (Prosecutors would very rarely want a jury over a judge. Defendants would usually, but not always. want a jury. It would be a fluke to have a case where the defendant wanted a bench trial and the state wanted a jury.) [Previous page](https://boards.straightdope.com/t/civil-lawsuit-plaintiffs-word-vs-nothing/844278.md?page=2) [Next page](https://boards.straightdope.com/t/civil-lawsuit-plaintiffs-word-vs-nothing/844278.md?page=4)