Whenever we talk about lawsuits, the term “burden of proof” inevitably comes up. What, in everyday terms, does that phrase mean? Let’s suppose you are the employer and a prospective employer calls about one of your former employees and asks why he left your company. You disclose that the former employee was caught stealing from you – which is true – and was fired. Next, suppose that, as a result, the former employee doesn’t get the job and sues you for keeping him from getting it. The burden of proof is on that former employee to prove that you maliciously and intentionally lied about him. You don’t have to prove you told the truth.

Just what level of proof must that former employee reach to make his case against you? This case is unlike a criminal case, where the state must prove guilt beyond a reasonable doubt, which, over the centuries, has come to mean that, if even the slightest doubt remains about whether or not the defendant actually committed the crime of which he’s accused, the verdict must be “not guilty.” In our example, which is a civil action, the guy who didn’t get the job because you told the truth about his termination, must prove by a preponderance of the evidence that you maliciously and intentionally lied about him. That italicized phrase means the plaintiff (the guy who didn’t get the job) must show that you maliciously and intentionally lied about him by something like a 51% certainty or that it was “more likely than not” that you lied about him and, as a direct result, he didn’t get the job. So, it’s a lower standard of proof; but, keeping in mind that the burden of proof is still on him, he’ll fail because he really did get caught in the act of stealing. Remember, it’s not your job to prove you told the truth – it’s up to him to prove you didn’t!