It is a common and understandable misconception that someone
injured in a car accident cannot successfully bring a claim unless the person
they are considering going after was issued a traffic ticket as a result of the
accident. While a ticket can help with the liability argument, it really is not
necessary to proving a case. To understand why, it is necessary to understand
the difference between what is necessary to prove a crime and what is necessary
to prove a civil wrong. The key here is what we call the “Burden of
Persuasion”.
Simply put, the burden of persuasion is the level of
certainty the proponent must establish to the trier of fact that the
proponent’s assertions are correct. In criminal cases, the burden of persuasion
is beyond a reasonable doubt. Criminal cases include virtually all traffic
offenses. In civil matters, which include establishing fault in auto accident
cases, the burden of persuasion is a preponderance of the evidence, or better
understood, the more likely than not standard. Judges often explain beyond a
reasonable doubt in their jury instructions to consider that there is a
reasonable doubt if based on all that has been heard the person making the
decision would be uncomfortable with a criminal conviction. A preponderance of
the evidence, on the other hand, is that based on all that has been heard the
person making the decision believes it is “more likely than not” that what the
Plaintiff is arguing is true. Reasonable doubt can exist and a person still
found to be responsible civilly for an accident. This is because the standard
for criminal conviction is so high.
To issue a ticket for a traffic violation, an officer must
make an assessment based upon what he or she has observed at the time.
Moreover, they must have some sense of being able to prove that a crime has
been committed. If the officer is unable to get to that point, they are not
likely to issue a ticket. However, that means only that an assessment has been
made by the officer that the criminal standard cannot be met. Whether the civil
standard can be met is simply not part of the officer’s analysis and has no
bearing on the decision to issue a ticket. Sometimes, it has nothing to do with
the burden of persuasion, and has more to do with an officer providing a
“break” or a warning to someone they feel just made a mistake.
Whether the civil standard can be met is an analysis that
needs to be made by individuals qualified by training and experience in automobile
litigation. It should not be made by someone without that training and
experience. Nor should someone without the training and experience trust that
analysis to one that has an interest in the outcome or “a dog in the fight”.
Such individuals include not only the person causing the accident, but also
their representative, including their insurance representatives. Appropriate
persons to make this analysis include experienced plaintiff attorneys, most of whom will
conduct the analysis at no charge and make meaningful, fair and well thought
out recommendations. At Parnell, Michels
and McKay we take great pride in our analysis and in providing meaningful,
fair and well thought out recommendations at no cost to injured parties who
have questions about their ability to secure compensation for injuries.
If you or someone you know is injured by someone else, do
not let the decision to seek fair compensation be determined by whether or not
charges are filed. Hopefully this post sheds some light on why that should not
be the case. Talk to a trained
and experienced injury lawyer and be sure to understand your rights.
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