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Who has the burden of proof of affirmative defenses in a civil lawsuit?

Miami, FL |
Filed under: Lawsuits and disputes

I have read that defendants have this burden of proof. Is that correct? If so, what is the standard of proof?

Attorney Answers 3


  1. An affirmative defense is alleged on behalf of a defendant and therefore, the defendant must prove the elements of the affirmative defense. In a civil case the burden of proof is by a preponderance of the evidence (proof outweighs, even so slightly, in favor of defendant).

    I am a New York Civil and Criminal Trial Attorney and handle serious Personal Injury cases, Criminal Defense cases, and Divorce, Custody, and Support matters. Feel free to check out my web site at www.rossilawfirm.com or contact me at (716) 773-5460 or via email at rossilaw@mac.com. The above answer is based on New York law and is posted for informational purposes only and does not constitute legal advice.


  2. The burden of proof in Florida civil courts is t"he greater weight of the evidence". This means the more convincing force and effect of the entire evidence in the case.

    The plaintiff has the burden of proving a prima facia case, and the defense has to prove its affirmative defenses by the same standard.

    Affirmative defenses admit arguendo that the plaintiff has a legally sufficient case, but constitute an avoidance of liability for a legal reason, for example, the statute of limitations has run, the debt has been satisfied, the right plaintiff asserts has been waived, etc.

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  3. Someone who is attempting to avoid a claim asserts an affirmative defense. That party would have the burden of proving up that defense. Burden of proof in a civil case is generally the preponderance or greater weight of the evidence. There are defenses that may require a higher legal standard. Consult with an attorney about the legal case you are involved in, if any.

    The answers given are limited to the facts as given and presumed by the answer itself. Without seeing actual written documentation or having a conference to more fully explore the issues, this short answer has only limited application. Make sure to seek legal counsel and provide all documentation to get assistance in making informed legal choices. Bstein@dcfsz.com, 305 377 1505

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