Several years ago, I was in trial defending a client to a lawsuit. The other party was on the stand. He had raised his hand and sworn to tell the truth. Then he began to unconscionably lie.
I knew he was lying. My client knew he was lying. The judge knew he was lying. The only problem was that we couldn’t prove that he was lying.
Then the judge did something unusual. She leaned forward and looked him sternly in the eye. And then she said to him, “Mr. So-And-So, I know that you are lying. I wish that I could prove it.”
“Yeah,” I thought. “Me too.”
Let’s hold that thought a sec.
Do you have a favorite shirt? A seashell you found on a romantic night on Siesta Key? A perfectly round stone shaped by time and weather that you picked up on a hike through Canyonlands? Well, they may be valuable to you — maybe even priceless. But to others … maybe, not so much.
Proof is sort of like that.
Absent proof, a story is, well … just a story. Albeit, a good one, maybe even a doozy. It may be your story and it may be dear to you, but to make it stick, to make a meaty Yorkshire pudding of the law, the proof (if you’ll forgive me) must be in the pudding. Otherwise, all you’ve got is a simple — perhaps thrilling — tale.
“Proof” may be thought of as evidence. More precisely, it is the “effect” of evidence on a particular fact or set of facts. It is what gives meat to the bones of allegation. Proof is any fact or circumstance which leads the mind to the affirmative (or perhaps negative) of any proposition.
I may claim, for example, that Mike Tyson lopped off a tidy morsel of my ear, but, oh, how much better if I can show the jury the place where my well-formed pinna used to be and better still if I can score the video of the teeth-gnashing deed being done!
Absent evidence of the deed to prove my claims, I am just one in a long line of blokes who’s claimed that “Mikey bit me!” (OK, maybe it was more popularly Charlie, but let’s not quibble).
Proof is a tool of persuasion. It is a thing or circumstance that allows one to sway a judge or jury into believing the proposition you want them to believe. By exhibiting (and explaining) certain evidence, it leads the judge or jury into believing the thing that you allege is true. Evidence establishes the proof of the thing alleged and so evidence and proof are inexorably tied.
Simply, proof is the establishment by evidence of a requisite belief concerning a fact in the mind of the trier of fact in the court. To prove something is to show it’s true. And in order to show that something is true, there must be satisfactory and sufficient evidence making it more likely than not.
Of course, “proof” brings us to “standards of proof,” which can change like a chameleon depending on the particular circumstances. A “standard of proof” is the burden of proof required in a particular type of case. In other words, how much “proof” do you need to show to prove your point?
In criminal cases, the prosecution must overcome the burden of proof to demonstrate by persuasive evidence that the accused is guilty beyond a reasonable doubt. In other words, the proof is so compelling that no reasonable mind could doubt that the defendant committed the wrongful act. In most civil cases (that is non-criminal disputes between individuals), the standard of proof is “by a preponderance of the evidence” which means, essentially, that the evidence stacks up more generally in favor of one proposition than the contrary one. Simply, the evidence shows that one version of the facts is more likely than the other.
I recently was engaged with a client with a compelling story. What was lacking though was proof. I believed the client’s story, believed that the client was both honest and earnest, but there was simply not enough to rest a legal hat on. I told him, if he could find more to support his tale, then we could move forward with a claim. But unless he could support his claim with sufficient evidence, his ship was likely sunk.
One last thing is worth considering. Despite what you may think about lawyers, each of us is held strictly to a code of ethics. Yeah, a real “code” known as the Code of Professional Conduct which is not merely aspiration; it has the same effect as any other law. And bound within the Code is Rule 11, which provides that an attorney may not advance a case on behalf of a client unless he/she has a good faith belief, after due inquiry, the claim is well grounded in fact and warranted under the law. In other words, the attorney must certify that in his/her good faith belief, there is evidence to prove the case.
Oh, by the way, the liar on the stand got too full of himself and ultimately tripped up. We proved that he was lying and he slipped quietly back into his deceitful hole. He got what he deserved and lost the case. And clean, sparkling unvarnished proof came out as it most times does the winner.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at either of his email addresses, firstname.lastname@example.org or email@example.com.