POSSIBLY PROBABLY.............by Steve Duhl 
Tuesday, November 16, 2010, 10:58 AM
Posted by Administrator
As I sat this morning wondering whether my client...who had three cases: a drug sale, a burglary and a "lewd" battery ..would take the plea deal (with the deal he would be out by summer without it he'd be out in somewhere between 3 months and 15 years), I began wondering...

When I said "You will probably win the (battery) case but if you don't it will ruin your life." By "ruin your life" I was talking about being labled a sex offender, having to register as a sex offender and risking more prison time for a 3rd degree felony if he didn't register.

I was saying that he would "probably" win but I began to think he was hearing that he would "certainly" win. But "probably" doesn't mean "certainly".

In a civil case, the trier of fact (judge or jury) is supposed to find in favor of whichever side of the case has the majority of the believable evidence pointing in their favor. A "prepondence of the evidence" means more evidence than the other side. "Prepondenance" is the civil standard (just as "reasonable doubt" is the criminal standard for determining guilty or not). "Preponderence" means pretty much the same thing as "probably". So, in a civil case, if the Plaintiff probably should win...he will win. This stinks for a Defendant whose evidence falls just a fraction short of 50%. Say that if you quantified the evidence it was 49.9% vs. 50.1%....well, someone has to win.

Need to get expert testimony in as evidence to win your trial? The standard is "a reasonable degree of medical (or enginerering, or aeronautic or whatever) certainly".

"Doctor can you say with a reasonable degree of medical certainty that the accident caused Mr. Smith's injury?" "Yes, it's possible." "By "possible", do yo mean "probable"? Because if the doctor knows that "possible" means less than 50/50, his testimony isn't coming in. Anything is possible and "possible" isn't evidence. Probable..even a little more likely than not, comes in.
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