The plaintiff has the burden of proof in order to recover damages. Generally that means that the first thing plaintiff must prove is that the defendant was negligent or at fault for causing the accident. The plaintiff then must also prove that the injuries claimed were caused by the accident, that the cost of past medical treatment was reasonable and necessary, the cost of medical treatment reasonably certain to be incurred due to the injuries in the future, the past income lost as a result of the injuries, and the lost income reasonably certain to be incurred in the future. The plaintiff must also prove his past and future pain and suffering. It is for the jury to determine whether the plaintiff has met his burden of proof as to some or all of these items and how much to include in the verdict for each item.
Defendants never have to prove anything at trial unless they file affirmative defenses. All a defendant must do to win at trial is for the Plaintiff to NOT prove any element of his/her case. If a defendant files an affirmative defense (such as the plaintiff failed to stop at a red light) then the Defendant must prove that fact by testimony, photographs or other competent evidence.
The plaintiff has the burden of proving the case, not the defendant. Your lawyer should have this under control, but if you don't have a personal injury lawyer, get one.
The answer does not create an attorney-client relationship and is for informational purposes only.
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The injured party should do an asset check on the defendant prior to not accepting the policy limits.
Please note that we are not forming an attorney - client relationship and the advice is meant to be general. Law Offices of Joel J. Kofsky 1616 Walnut Street Suite 2110 Philadelphia, PA 19103 http://www.phillyinjurylawyer.com/
As one of the responses points out, the Plaintiff should make sure that the Defendant is not judgment proof before proceeding with the civil lawsuit. Otherwise, a judgment against a defendant with no assets will probably result in little more than unpaid legal fees for Plaintiff.
Also, note that receiving a judgment and collecting on one are two very distinct things, and the latter just may be as complex (if not more) and cumbersome an effort as the former. In short, there are various considerations to take into account before declining the insurance company's offer for liability limits.
However, this case is a civil trial and the burden of proof is merely the "greater weight" of evidence. That is sometimes explained as 51%. So, with that as the rule, a defendant might want to hire it's own doctor to evaluate the injuries/plaintiff - maybe an accident reconstructionist if liability is an issue...
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