The phrase “burden of proof” refers generally to the obligation to prove affirmatively a fact or facts in dispute or an issue raised between the parties in a case. The phrase encompasses two distinct concepts. First, it denotes the duty of a party to produce competent evidence establishing the truth of a given proposition by the degree of proof required in the specific case, either to make a prima facie case or to meet such a case. As a general rule, this burden, known as the “burden of persuasion,””never shifts during the course of the trial, but remains throughout on the party on whom the law cast it at the beginning of the trial.1 An exception to this general rule is where a party relies on a legal presumption, in which case the burden of proof as to the presumed fact shifts to the opposing party.2
The second concept is the “burden of going forward with the evidence.” This phrase denotes the obligation of a party to offer competent evidence to refute or explain the case established by an adverse party. The burden of going forward with the evidence may shift from side to side as the trial progresses and evidence is introduced by the parties. Thus, where one party establishes a prima facie case, the burden of going forward shifts to the adverse party, and that party is required to put forward evidence sufficient to prevent a finding against that party as a matter of law. The adverse party, by producing competent evidence, may satisfy the burden and shift it back to the original party.3
As a general rule, in the absence of a presumption, the burden of proof generally rests upon the party asserting a fact the existence of which is essential to the party’s case or defense.4 The burden of proof as to a negative proposition, i.e., that an event did not occur, similarly rests on the party asserting it.5
1. See Quaker Hill Place v. Saville, 523 A.2d 947, 954 n.6 (Del. Super. 1987), aff’d, 531 A.2d 201 (Del. 1987); Ambrose v. Wheatley, 321 F. Supp. 1220, 1222 n.6 (D. Del. 1971).
2. See §9:6.
3. See Quaker Hill Place v. Saville, 523 A.2d 947, 954 n.6 (Del. Super. 1987), aft’d, 531 A.2d 201 (Del. 1987); In the Matter of Black Stallion Tax Ditch, C.A. No. 83M-JL.l, slip op. at 5, Martin, J. (Del. Super. Mar. 11, 1986), reh’g denied, C.A. No. 83M-JL-l, Martin, J. (Del. Super. Apr. 19, 1986); Ambrose v. Wheatley, 321 F. Supp. 1220, 1222 n.6 (D. Del. 1971); Delaware Coach Co. v. Savage, 81 F. Supp. 293, 296 (D. Del. 1948).
4. See Oberly v. Howard Hughes Medical Inst., 472 A.2d 366, 386 (Del. Ch. 1984); Murphy v. T. B. O’Toole, Inc., 47 Del. 99, 87 A.2d 637, 638 (Del. Super. 1952).
5. Oberly v. Howard Hughes Medical Inst., 472 A.2d 366, 387 (Del. Ch. 1984).
© 2010 David L. Finger