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Wednesday, July 25, 2007

Did You Know the Burden of Proof is a Waivable Standard?

So I was reading an old Posner opinion (Burdett v. Miller, 957 F.2d 1375  (7th Cir. 1992))  and came across this passage:

Actually [the district court] did commit one clear error on the fiduciary count, and that was to apply the normal civil standard of preponderance of the evidence, rather than the higher standard of proof--proof by clear and convincing evidence--that Illinois requires to establish the existence of a fiduciary duty outside of the per se categories such as lawyer-client and guardian-ward.  But Miller waived the error in the district court by failing to ask the judge for the higher standard.  The normal standard of proof in a civil case is, of course, proof by a preponderance of the evidence, not proof by clear and convincing evidence. . . .  A federal district judge cannot be presumed to carry around in his head every esoteric rule of the law of the state in which he happens to sit.  If the parties do not mention the standard of proof in a civil case, the district judge is bound to apply the normal civil standard, just as he will apply the substantive law of the forum state if the case is a diversity case and neither party argues choice of law.  The preponderance standard, and the forum state's substantive law, are the default rules to be applied in such situations in the absence of objection.  And that is what happened here. The parties did not mention the burden of proof in any of their filings in the district court; the pretrial order didn't mention it; so naturally the judge applied the preponderance standard.

Not my field -- so perhaps this is old hat.  But I was pretty surprised to learn that a basic legal issue like the standard of proof could be waived.  Notable, too, is that Posner treats this as a federal rule of procedure: presumably even if the substantive law of Illinois held that the burden of proof is non-waivable, federal courts could ignore that requirement because a "federal district judge cannot be presumed to carry around in his head every esoteric rule of the law of the state in which he happens to sit."  These are the days I wish I got to teach and study Erie.

UPDATE:  For more on this interesting subject, you might look at Henry Noyes's recent article on parties' ability to specify details about the litigation process by contract.  Could parties contract for the harsher "clear and convincing" standard for breaches?  What if it is your cell phone provider furnishing such a contract to a consumer? 

Posted by Ethan Leib on July 25, 2007 at 02:12 PM in Odd World | Permalink


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"Courts understandably balk at imposing the burden of proof on unsuspecting defendants after the plaintiff in a declaratory judgment action has voluntarily assumed the burden of proof and has given no prior notice of its claim that the defendant should bear the burden. Liberty Mutual Insurance Company v. Sweeney, 216 F.2d 209, 211 (3d Cir. 1954).... See also Pacific Portland Cement Company v. Food Machinery & Chemical Corporation, 178 F.2d 541 (9th Cir. 1949); Bauer v. Clark, 161 F.2d 397, 401 (7th Cir. 1947), cert. denied, 332 U.S. 839, 68 S.Ct. 210, 92 L.Ed. 411 (1947); New York Life Insurance Company v. Stoner, 109 F.2d 874, 876 (8th Cir. 1940), rev'd on other grounds, 311 U.S. 464, 61 S.Ct. 336, 85 L.Ed. 284 (1940); Hartford Accident & Indemnity Co. v. Lougee, 89 N.H. 222, 196 A. 267 (1938)." Fireman's Fund Ins. Co. v. Videfreeze Corp., 540 F.2d 1171, 1175 (3rd Cir. 1976).

Posted by: Chris | Jul 25, 2007 10:32:21 PM

As Prof. Bainbridge is fond of pointing out, whether a given question is procedural or substantive is a silly question. The litigant's substantive rights are abridged by the application of the rules of procedure.

Also, whether a court - or rather, The Court - determines that Rule 51 is not squarely presented, and thus did not improperly abridge substantive rights, or whether it instead determines that Rule 51 deals with a matter of pure procedure-not-substance, and therefore does not improperly abridge substantive rights, it's all the same. In no case has the Supreme Court ever found that a rule it propounded violates the Rules Enabling Act; they'd look like idiots. Or so they may think.

Acknowledging that the criminal situation is not presented, which yes does implicate due process problems, I think Posner's rule is stupid. Judges don't carry around rules in their head? No? Well, why should every litigant have to plead the proper standard of proof or persuasion? Shouldn't we ignore it when it's the default, and have a mild standard of pleading? Certain things ought to be waivable. Affirmative defenses, say. But a failure to plead a (legislatively imposed?) higher standard of proof?

Why should the innocent party who failed to plead this pay the price for the judge's ignorance? This is *not* information within the sole control of the litigant. Let the judge pay the price of his or her failure to [have their clerk] do the judge's job.

Posted by: Eh Nonymous | Jul 25, 2007 8:03:41 PM

The portion in the quotation from Posner's opinion after the ellipses could be read as, silently and subtly, addressing the plain error issue by suggesting that the error was not "plain"--because judges cannot hold in their heads the rare times in which clear/convincing applies, there was nothing so obvious about it.

The result might have been different in a criminal case. Because beyond a reasonable doubt is constitutionally required (*In re Winship*), the error would be much more obvious and thus grounds for reversal.

The *Erie* issue is interesting. Posner seems to have taken the correct approach because waivability is determined by an FRCP and thus controlled by *Hanna v. Plumer.* But if state law did make it non-waivable, we would have to figure out whether waivability was procedural or substantive and, in turn, whether Rule 51 improperly abridged substantive rights.

Posted by: Howard Wasserman | Jul 25, 2007 7:19:13 PM

In 1992, Fed. R. Civ. P. 51 required a contemporaneous objection to an instruction to preserve an error for appellate review. Although some circuits had recognized a "plain error" exception, that view seemed wrong, given that Fed. R. Civ. P. 51 contained no plain error exception, in contrast to Fed. R. Crim. P. 52. The 2003 amendments to Rule 51 introduced a plain error exception. Thus, Judge Posner's statement was correct when it was made, although it does not apply to the current version of Rule 51.

I concur in the plug for the wonderful article by my colleague, Henry Noyes. He raises some fascinating questions.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jul 25, 2007 6:00:15 PM

Hey Scott--

Haven't heard from you in some time! Hope all is well.

I wouldn't be surprised if Posner just made it up either; I teach a few of his made-up statements of law in Contracts. But whatever else one thinks of Posner, he does have an uncanny ability to have his imaginary law become the law of the jurisdiction (as long as Easterbrook doesn't oppose him!). My quick search didn't reveal any opposition to the principle he announced. But I hope those who know more about this stuff school me in the comments....

Posted by: Ethan Leib | Jul 25, 2007 3:07:49 PM

I wouldn't count on this passage as gospel. Posner often just asserts rules of law that make sense to him, without citation, and he's sometimes just wrong.

Posted by: Scott | Jul 25, 2007 3:01:18 PM

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