Standard of Proof in Europe (Veroffentlichungen Zum Verfahrensrecht) 9783161570209, 9783161570216, 3161570200

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Veröffentlichungen zum Verfahrensrecht Volume 158 Edited by

Rolf Stürner

Standard of Proof in Europe Edited by

Luboš Tichý

Mohr Siebeck

Luboš Tichý is the Director of the Centre for Comparative Law of the Law Faculty of Charles University in Prague. orcid.org/0000-0001-8732-0290

ISBN  978-3-16-157020-9 / eISBN  978-3-16-157021-6 DOI  10.1628/978-3-16-157021-6 ISSN  0722-7574 / eISSN  2568-7255 (Veröffentlichungen zum Verfahrensrecht) The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbiblio­ graphie; detailed bibliographic data are available at http://dnb.dnb.de. © 2019  Mohr Siebeck Tübingen, Germany. www.mohrsiebeck.com This book may not be reproduced, in whole or in part, in any form (beyond that permitt­ ed by copyright law) without the publisher’s written permission. This applies particularly to reproductions, translations and storage and processing in electronic systems. The book was typeset using Stempel Garamond typeface, printed on non-aging paper, and bound by Gulde Druck in Tübingen. Printed in Germany.

Preface The idea for this book arose from a conference on the fundamental issue of standard of proof which took place on 26–27 October 2017 at the Faculty of Law of the Charles University in Prague. The book now gives an overview of different national concepts concerning standards of proof in the Germanic legal family (H.-J. Ahrens and Chr. Althammer and M. Tolani for Germany, W. Rech­berger for Austria), two jurisdictions of Romanic legal tradition (E. Jeuland for France and R. Poli for Italy), a common law (J. Sorabji for England) as well as the Scandinavian jurisdictions (M. Strandberg), and, finally, the Czech republic (J. Balarin), as a representative of the Central European post-communist legal culture. Moreover, the book contains four contributions analysing national approaches on specific issues in context. P. Holländer focuses on the issue of the truthfulness and purpose of proceedings from a Czech perspective; M. Schweizer deals with the key issue of the standard of proof as a threshold of decision-making in Swiss law; Chr. Kern deals with probability as an element of standard of proof in Germany; and M. Strandberg develops a somewhat provocative concept of prevailing probability from a Scandinavian perspective. In addition, M. Stürner presents the ELI/UNIDROIT project in relation to the evaluation of evidence and the standard of proof. In the final contribution the editor then attempts to compare individual approaches to solving the standard of proof issue and presents his own solution. The aim of this book is to analyse the key questions of assessment of proof, namely the standard of proof which is to be applied. Evaluation of evidence requires a though process in which the evaluator reconstructs the past based on information available to them. But since the past cannot be repeated, the evaluator can only attempt to get as close as possible to reality. Interestingly, it is possible to identify two extreme approaches. The first is one which be described as hypothetical or speculative, and stems from the conviction or belief of the judge. It employs terms such as “truth”, “certainty” or “beyond reasonable doubts”. The result of this approach is an “all or nothing” outcome. The second approach is, at least at first glance, somewhat more scientific, since it measures the extent of credibility of the reconstruction by a degree of probability. If, for example, the degree of probability exceeds 51 %, the fact is considered as proved. Therefore, the main purpose of the book is to examine the different approaches in key European jurisdictions and where they are placed between these extremes. A secondary purpose is to assess and evaluate these different approaches, perhaps, and find which the appropriate standard should be.

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Finally, some words of thanks. The editor owes a great debt of gratitude to Alexander von Humboldt Stiftung for generously funding both the conference in Prague and this book. Thanks are also due to the Faculty of Law of the Charles University which founded this project from its program Progres Q 03 “Private law and challenges of today”. The editor is also very grateful to the publisher, Mohr Siebeck, for the very pleasant cooperation, and to his secretary Mrs. Ludmila Nováčková for continuous hard work for this project. But an editor’s greatest debt is to the authors – this book is really theirs. Prague, February 2019

Luboš Tichý

Table of Contents Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V

Fundamentals Pavel Holländer Proof and Changing Idea of Truth in Legal Thinking: Reflection on Postmodernism . . . . . . . . . . . . . . . . . . . . . . . . 2 Mark Schweizer Standard of Proof as a Decision Threshold . . . . . . . . . . . . . . . . . 19 Christoph A. Kern Probability as an Element of Standard of Proof . . . . . . . . . . . . . . 51 Magne Strandberg The More-probable-than-not Standard: A Critical Approach . . . . . . 65

National Reports Germanic Legal Family Hans-Jürgen Ahrens Fact Finding under German Law of Civil Procedure: Evaluating Evidence and the Relevant Degree of Certainty . . . . . . . 95 Christoph Althammer and Madeleine Tolani Proof of Causation in German Tort Law . . . . . . . . . . . . . . . . . . 109 Walter H. Rechberger Standard of Proof: The Austrian Approach . . . . . . . . . . . . . . . . 123

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Scandinavian Approach Magne Strandberg Standards of Evidence in Scandinavia . . . . . . . . . . . . . . . . . . . 135

Postcommunist Legal Family Jan Balarin Standard of Proof in Czech Civil Procedure . . . . . . . . . . . . . . . . 161

Romanic Legal Family Emmanuel Jeuland The Standard of Proof in France . . . . . . . . . . . . . . . . . . . . . . 181 Roberto Poli Standard of Proof in Italy . . . . . . . . . . . . . . . . . . . . . . . . . . 197

Common Law Attitude John Sorabji The English Approach to the Standard of Proof in Civil Proceedings . 249

European Approach Michael Stürner Evaluation of Evidence and Standard of Proof in the ELI/UNIDROIT European Rules of Civil Procedure . . . . . . . . . . . . . . . . . . . . . 273

Comparison Luboš Tichý Standard of Proof: Fundamental Problems Through the Perspective of Comparative Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . 287

List of Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319

Fundamentals

Proof and Changing Idea of Truth in Legal Thinking Reflection on Postmodernism Pavel Holländer

I. Postmodern standard of proof: change indication Legal science is currently focusing on new, modern evidence-based technologies (DNA identification, advanced technology for people tracking, for example eavesdropping, video identification, voice-based identification, etc.) and related issues (for example on the discussion of the theory of the fruit of the poisonous tree, the admissibility of the buckwheat in identifying DNA with respect to the violation of the principle of nemo tenetur se ipsum prodere, etc.), or the questions of the growing role of the expert witness as indirect judges. In contrast to the excited controversies in legal science in the 19th century and in the first half of the 20th century, less or no attention is paid to the basic aim of evidence, the necessary extent or scope of evidence, the relationship of proof and truth. However, a number of indications suggest that this neglect ignores significant changes in the perception of the category of truth. I will try to outline some of these indications. The institute of second appeals in the Civil and Criminal Proceedings in the Czech Republic is conceived in the sense of a substantive review of the decision of the Appeal and Finding Court, not in the context of a review of factual findings. The Constitutional Court, however, has interpreted both these statutory provisions under its framework and the review of the factual finding. The Court proceeds in three ways. The first is based on the thesis of the inseparability of the factual and substantive review (for example judgments of file number I. ÚS 4/04 and I. ÚS 729/17). The second argumentation is based on violation of the in dubio pro reo principle, and this principle has been inferred from the constitutional principle of the presumption of innocence (see the judgments of file number II. ÚS 4266/16, I ÚS 1501/16 and others). Finally, the third is based on the plea of inadmissibility of the extreme contradiction between the evidence and the facts-finding (from recent times, for example judgment of file number I. ÚS 34/17). It is possible to talk about a ten-to-twelve-year trend, a tendency to increase the criticism of the truthfulness of facts-finding of ordinary courts by the Constitutional Court, a trend which includes an extensive interpretation of the in-

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stitute of second appeal in criminal as well as civil proceedings. The result is the construction of two reviews, one before the ordinary courts and one before the constitutional court. It is about a scepticism or about a distrust of judiciary, it is about increase in postmodern relativisation of the truth of human cognition. Both the Czech Code of Criminal Procedure and the Czech Civil Code lay down different levels of standard of proof for the adoption of different types of decisions in terms of their purposes (this may be to reduce or increase the standard of proof). In general, law enforcement authorities are obliged to proceed “to ascertain the facts of the case for which there is no reasonable doubt, to the extent that is necessary for their decision”. However, in the case of remand (detention) the measure of standard of proof is justified by reasonable suspicion. The Czech Constitutional Court has increased its claims in the case of the review of court decision on remand (detention): an illustration is a judgment in which the court moves the value of standard of proof in remand to the level required in the decision on the merits (I. ÚS 2652/16) and argues in a similar way as the novelist hero of Joseph Heller in the book Good as Gold, who in the second half of the statement regularly denies the first half of the statement: “In the case of remand (detention) courts are not required to deal individually with each argument put forward by the accused or his attorney, but they should respond adequately to all claims.” Thus, we are seeing an increase in scepticism about the outcome of judicial evidence, an increase in the complexity of the procedural law, an increase in the number of judicial review courts in the field of reviewing evidence, moreover, we are seeing an increase in evidence-based requirements in cases where the legal procedure does not provide a condition for finding the facts without any reasonable doubt, but merely provides for a reasonable suspicion or reasoned concern. Thus, there are two tendencies: the institutional development of procedural law and the levelling of evidence-based requirements.

II. Historical transformations in the understanding of truthfulness and the standard of proof in law In the following considerations I will build on the thesis of Alasdair MacIntyre, an excellent and in the second half of the 20th century an extraordinarily thoughtful Scottish moral and social philosopher, one of the founders of the philosophy of communitarianism, from the thesis of the inseparability of theoretical and historical knowledge: “There ought not to be two histories, one of political and moral action and one of political and moral theorizing, because there were not two pasts, one populated only by actions, the other only by theories. Every action is the bearer and ex-pression of more or less theory-laden beliefs and concepts; every piece of theorizing and every expression of

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belief is a political and moral action. Thus the transition into modernity was a transition both in theory and in practice and a single transition at that. It is because the habits of mind engendered by our modern academic curriculum separate out the history of political and social change (studied under one set of rubrics in history departments by one set of scholars) from the history of philosophy (studied under quite a different set of rubrics in philosophy departments by quite another set of scholars) that ideas are endowed with a falsely independent life of their own on the one hand and political and social action is presented as peculiarly mindless on the other. This academic dualism is of course itself the expression of an idea at home almost everywhere in the modern world.”1

The basic question of the relationship of proof and truth is the degree of recogni­ tion of past events (standard of proof), in other words, the question of whether or not to be aware of these events in their completeness that would justify the truthful evaluation of the results of that knowledge. But let’s go deeper into European legal history. The basis of the Czech legal-mediavalistic exploration of the medieval understanding of the rules of evidence, in particular the understanding of the legal theory of the evidence, represents the four excellent studies of Jiří Kejř.2 According to Jiří Kejř “a fundamental interpretation … to the foundations of the theory of judicial evidence … filed by Saint Thomas Aquinas in the top work of medieval scholarship Summa theologica. His argument follows this approach: It is better to modify everything by a legal regulation than to leave the judge’s consideration for three main reasons. First of all, it is easier to find a few wise men who would compose laws than a large number of wise men who would be able to fairly decide on individual matters. Furthermore, when making laws, it is usual to think long enough about what is to be done, while judges must decide without delay. Finally, the legislature decides in general and for the future, the judge, on the other hand, only individual things and for the present, and may still be influenced differently. Therefore, it is imperative that, wherever possible, laws are laid down, what is to be judged, and only as little as possible the decision-making of the people. Judges can only be left to the discretion of what can not be regulated by law, such as the finding facts. Throughout medieval literature, hardly a place can be found that would emphatically and more clearly justify the need for a bound evaluation of evidence theory.”3 1  Macintyre, After Virtue. A Study in Moral Theory. London 1981, 3rd ed., Notre Dame, Indiana 2007, p.  61. 2  Pojem soudního důkazu ve středověkých právních naukách (The concept of judicial evidence in medieval legal teachings), Stát a právo, 13, 1967, p.  169–187; republished in Kejř, ­Výbor rozprav a studií z kodikologie a právních dějin (Debates and studies of codicology and legal history), Praha 2012, p.  115–133; Teorie soudních důkazů ve středověkých právních a teologických naukách (The theory of judicial evidence in medieval legal and theological doctrines), Právnické studie, 40, 2009, p.  95–112; Husitská kritika soudobé teorie soudních důkazů (Hussite critique of the contemporary theory of court evidence), in Kejř, Dvě studie o husitském právnictví. Praha 1954; Ke zdrojům husitských názorů na teorii soudních důkazů (The sources of Hussite views on the theory of judicial evidence), Právněhistorické studie, 11 (1965), p.  9 –15. 3  Kejř, Teorie soudních důkazů ve středověkých právních a teologických naukách (The theory of judicial evidence in medieval legal and theological doctrines), Právnické studie, 40, 2009, p.  101.

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Kejř shows that the high Middle Ages were well aware of the possible tension between the “own knowledge” of the judge and “the resulting basis for decision-­ making, as evidenced by the evidence provided“. In spite of the exceptions, the idea of “binding evidence for judging the judiciary”, which benefits the most important authorities of the Middle Ages, “such as one of the greatest Pontifical lawyers, Sinibaldus Fliscus, later Pope Innocent IV, … or the famous Speculator – Guglielmus Durantis in a huge work on the procedural law Speculum iudicale.”4 Requirements for the standard of proof, understanding of the meaning and purpose of evidence, including the perception of truth, in the Middle Ages were determined by a theological view of the world and of human existence. “Truth”is an expression of “God’s revelation”, “God’s will”, not the potency of human reason. The connection between the idea of truth and the theological understanding of the world can be brought closer to the ideas of Thomas Aquinas. According to him, “God belongs to judge by his own power”, that it is only for God that he judges “according to the truth which he himself knows, and not according to what he receives from others”.5 However, “other judges do not judge by their own power”, that is, “judges are to judge the truth according to what is to be presented to them”. 6 The theological argument and argument based on the value of justice created the theoretical justification of bound evaluation of evidence whose application is closely related to the installation of the Inquisition process, primarily for the purpose of conducting trials against heretics during the pontificate of Inocence III. (1198–1216), and in particular, it relates to the results of the Fourth Lateran Council (1215). During the eighteenth century, an outstanding German lawyer, statesman, literary and historian Justus Möser (1720–1794), due to the transposition of Germanic law into Roman law, whose ideas are linked to the current German legal system,7 expresses the belief that only the formalities of the bound evaluation of evidence ensure legal peace and protect against Judge’s arbitrariness. While he finds it regrettable that formal and real truths are not always in agreement, however, this shortcoming must in any case be regarded as less than the shortcoming that would arise if every judge could simply consider the truth of his opinion.8 4  Kejř, Teorie soudních důkazů ve středověkých právních a teologických naukách (The theory of judicial evidence in medieval legal and theological doctrines), Právnické studie, 40, 2009, p.  101–102. 5  Aquinas, Summa theologica. II, II. Quoted by: Bahounek, Politické myšlení sv. Tomáše (Political Thought of St. Thomas), Brno 1995, p.  166. 6  Ibidem, p.  166. 7 See: Möser, Gesellschaft und Staat. Eine Auswahl aus seinen Schriften, Herausgegeben und eingeleitet von Prof. Dr. R. Brandl, München 1921. 8  Möser, Patriotische Phantasien, Bd. IV, Berlin 1786, p.  116–117.

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At the time of Enlightenment, the image of man changes dramatically: “Instead of tradition and authority, knowledge should be found in the use of one’s own reason.”9 At the same time, however, the fear of a possible judge’s arbitrari­ ness has led the most important enlightened personalities, such as Charles-­Luis Montesquieu and Gaetano Filangieri, to a critical perception of the role of a judge.10 A contradiction, the solution of which was a challenge for thinkers of the Enlightenment, the contradiction between the idea of a free and rational individual (which is reflected in the principle of free evaluation of evidence) and the fear of arbitrariness of the judges stemming from the experience of the ancien régime era required solution. Its starting point was the inspiration of the English jury courts11 and the faith of the enlighteners “in the sound judgment of the people”.12 The breakthrough was the parliamentary debate that took place in December 1790 and January 1791 in the French constitutional assembly on the subject of the judge’s inner conviction. Adrien Duport (1759–1798), a politician and lawyer who was instrumental in the implementation of judicial reforms that prompted the establishment of jury courts and a cassation court, and who advocated the abolition of the death penalty, advocated the introduction of jury courts in the debate. He saw the guarantee of an independent, rational evaluation of evidence by a number of independent and impartial individuals, who are only guided by their own reason and their conscience and who “are not forced to observe the wrong and absurd probability rules”.13 The French Criminal Procedure Code of October 1791 introduced the jury and, in the provision of Article 427, instructed the jurors before the final meeting to establish the famous formula of conviction intime: “Criminal offenses can be proved by any means of proof and the judge decides according to their internal convictions.” (Les infractions peuvent être établies par tout mode de preuve, et le juge décide d’après son intime conviction.) The institute of conviction intime was also preserved by the 1808 Criminal Procedure Code. Mark Schweizer notes: “The introduction of free evaluation of evidence and the establishment of jury courts are inextricably linked.”14 9 

Schweizer, Beweiswürdigung und Beweismaß. Tübingen 2015, p.  51. Montesquieu, Esprit des lois. Czech translation: O duchu zákonů. Praha 2010, p.  185; Filangieri, La scienza de la legislazione. Milano 1780–1785. German translation: System der Gesetzgebung. Bd. III, 2nd ed., Ansbach 1788–1791, pp.  328 f. 11 See Baker, An Introduction to English Legal History (4th ed.). London 1972, p.  72–73; Whitman, The Origns of Reasonable Doubt. Theological Roots of the Criminal Trial. New Haven-London 2008, p.  126–127. 12 See Nobili, Die freie richterliche Überzeugungsbildung. Reformdiskussion und Gesetz­ gebung in Italien, Frankreich und Deutschland set dem Ausgang des 18 Jahrhunderts. BadenBaden 2001, pp.  116 f. 13  Ibidem, p.  129. 14  Schweizer, Beweiswürdigung und Beweismaß, note number 9, p.  57. See also Küper, Die 10 

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The overwhelming majority of German lawyers refused the French conception of conviction intime. Paul Johann Anselm Ritter von Feuerbach (1775– 1833), one of the founders of the modern German criminal law science, became the leader of this thought direction.15 Another emerging generation of German lawyers is starting to think differently. Carl Ernst Jarcke (1801–1852), a professor of criminal law at the University of Berlin, later in Vienna as an associate of Chancellor Metternich – in agreement with Kant, defines truthfulness by correspondence theory of truth as “the congruence of a person making judgments with a cognizant object”.16 Finally, the assertion of the idea of free evaluation of evidence is then associated with the most famous name, with the name of Friedrich Carl von Savigny (1779–1861), and in 1846 anonymously published book Die Prinzipienfrage in Beziehung auf eine neue Strafprozessordnung.17 Savigny did not connect judges’ arbitrariness with the abandonment of the principle of the bound evaluation of evidence and according to him the judge is bound by the rules of evidence based on “general laws of thought, experience and human knowledge.” He also recommended the cancellation of the jury and, according to the French model, the free evaluation of the evidence.18 He saw the guarantee against the arbitrariness in a clear written justification of the judgment, which could be reviewed by a higher court instance.19 Unlike the criminal procedure, in civil procedural law, the principle of free evaluation of evidence enforced the generation later: “In the civil procedural law free evaluation of evidence compared to procedural criminal law has been introduced with a delay of about three decades.”20 The first half of the 19th century in German and Austrian civil law is connected with several waves of debates on the merits and deficits of the bound evaluation of evidence and the principles of free evaluation of evidence, debates in which a number of outstanding personalities, including F.B. Busch, government council, chairman of the Arnstadt Regional Court, vice president of the Court of Appeal at Eisenach, Carl Josef Anton Mittermaier, liberal, politician, chairman of the the Vorparlament 1848, Richteridee der Strafprozessordnung und ihre geschichtlichen Grundlagen. Berlin 1967, pp.  174 f. 15  Feuerbach, Ritter von, Betrachtungen über das Geschworenengericht. Landshut 1813, p.  121 f. 16  Jarcke, Bemerkungen über die Lehre vom unvollständigen Beweis, vornehmlich in Be­ zug auf die ausserordentlichen Strafen. Neues Archiv für Criminalrechts, 1826, p.  98. 17  Savigny, Die Prinzipienfrage in Beziehung auf eine neue Strafprozessordnung. Berlin 1846. 18  Ibidem, p.  65. 19  Ibidem, p.  66. A detailed outline of the application of the principle of free evaluation of evidence in German criminal proceedings see: Krieter, Historische Entwicklung des „Prinzips der freien Beweiswürdigung“ im Strafprozeß. Göttingen 1926. 20  Schweizer, Beweiswürdigung und Beweismaß, note number 9, p.  61.

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university professor in Landshut, Bonn and Heidelberg and others.21 A key figure linked to the enforcement of the principle of free evaluation of evidence in a civil procedure is Wilhelm Endemann (1825–1899), a professor at the universities of Jena and Bonn, who since 1867 also worked in the Commission of the North German Civil Litigation Association.22 His breakthrough article from 185823 is based on the theory of liberalism and rationalism. According to him, the traditional rules of evidence “limit the autonomy of judge’s opinion”, the factual finding without their use guarantees a higher degree of “certainty and independence of judge’s opinion”. Further, the barrier of judge’s arbitrariness is the fact that the judge “has to follow the principles of logical conviction”, which is subject to review and, further, is bound by the observance of the principle of public hearing.24 On the Assembly of Association of German lawyers (Deutscher Juristentag) in 1861, a statement was made according to which the association “fully supports the principle according to which the judge must determine the truth of the facts, if they are disputed between the parties, according to the internal conviction”.25 As the famous German lawyer, one of the most important theorists of the concept of the rule of law, the Berlin university professor, Rudolf von Gneist (1816–1895) noted, “the consultation on the German Civil Procedure Order of 1877 for the Reichstag Commission was not a strenuous work, the Association of German lawyers in the previous years has prepared and discussed everything that was essential in its negotiations”.26 The German and Austrian legal thinking in the second half of the 19th century were closely interconnected, the Austrian, i. e. the Cisleithania, the development of law was then directed analogously in the same direction. A key role in this direction was played by Franz Klein (1854–1925), the Viennese professor of civil procedural law, the Cisleithanian minister of justice, the author of the current Austrian Civil Procedure Code of 1895. In his famous work Pro futuro, in which he formulated the principles of a new civil procedure law, the principle of free evaluation of evidence, in addition to the principle of the verbal hearing and the public hearing, is considered to be the key principles of the new Code.27 21  An extremely precise description of this development see: Patermann, Die Entwicklung des Prinzips der freien Beweiswürdigung im ordentlichen deutschen Zivilprozess in Gesetz­ gebung und Lehre. Bonn 1970. 22  See his most significant works: Endemann, Die freie Beweisprüfung in Zivilprozesse. Archiv für die zivilistische Praxis, n.  41, 1858, p.  92–129; Endemann, Die Beweislehre des Zivilprozesses. Heidelberg 1860. 23  Endeman, Die freie Beweisprüfung im Zivilprozesse. Archiv für zivilistische Praxis, Bd. 41, 1858, p.  92–129. 24  Ibidem, p.  116–117. 25 See Patermann, Die Entwicklung des Prinzips der freien Beweiswürdigung im ordent­ lichen deutschen Zivilprozess in Gesetzgebung und Lehre, note number 21, p.  135. 26  Ibidem, p.  137. 27  Klein, Pro futuro: Betrachtungen über Probleme der Zivilproceßreform in Österreich. Leipzig-Wien 1891, p.  5.

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The most prominent personalities of the Czech civil procedural law of the second half of the 19th century and the 20th century, Emil Ott and František Štajgr, were aware the connection between the new understanding of man as a free and reasonable person and changes in the procedural principles determining the degree of standard of proof. In this context, Emil Ott points out not only the change of these paradigms, but also the gradual transition of law of evidence into partial legal adjustments and ultimately resulting in the adoption of a new procedural code.28 In this context, František Štajgr focuses on the historical context: “Ideas of the 19th Century, in particular, begin to take more account of individuality … the principle of the free evaluation of evidence, which at present applies to all kinds of judicial procedures and in all cultural states, and which applies almost to all means of proof … is the institution which, in seeking the truth in the procedure, allows respect for the individuality of events, but does not affect the requirement of objectivity of truth.”29

III. Postmodern uncertainty in finding the standard of proof, or “wandering” between material truth, probability, inner conviction and practical certainty, between subjective and objective theory of proof In the 20th century, as well as in the 21st century, there is still a debate about the relationship between truth and probability, truth, and the inner conviction of the judge, truthfulness and practical certainty. Josef Macur, a key figure in the Czech civil procedure law of the second half of the 20th century, describes this debate as follows: “The rejection of the bond evaluation of evidence does not end the eternal dispute over the solution of the dilemma if the emphasis is on the subjective conviction of the judge or on the objective finding of the probability of the facts … The nature of this dispute has become more subtle and subtle, and its forms have taken on a different character. In the current theory and practice of the civil procedure, it is above all a dispute between the supporters of subjective and objective theory of standard of proof … Differences, however, are manifested in a different understanding of the principle of free evaluation of evidence.”30

Philosophical discourse led in the 20th century to develop a series of concepts of truthfulness, especially the theory of correspondence (and its modification 28  Ott, Soustavný úvod nového řízení soudního. Díl II. (Systematic introduction of new law of procedure), Praha 1898, p.  88–90. 29  Štajgr, Zásady civilního soudního řízení. Praha 1946 (Principles of civil procedural law), p.  68–69. 30  Macur, Postmodernismus a zjišťování skutkového stavu v civilním soudním řízení. (Postmodernism and determination of the facts in civil procedural law), Brno 2001, p.  111.

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– theory of verification, theory of weakening verification, theory of falsification, or theory of probability), theory of coherence, pragmatic and consensual theory (and many others, for example the theory by Alfred Tarski).31 Legal thinking at the same time offered an image of analogous development, and it can be assumed that the vast majority of procedural law theorists or judges, the authors of key decisions in the field of evidence law, were not and are not confidential scholars of philosophy. In the field of Czech criminal procedural law, Vladimir Solnař has said that the principle of material truth “expresses the fact that the criminal procedure law seeks to establish the true reality and is dissatisfied with what the parties, as a matter of consent, are acknowledging for the truth (so the principle formal truth). This is about finding the so-called historical certainty, which is identical to a considerable degree of probability.”32 In the sixties of the 20th century, in the field of legal theory, Czech legal philosopher and legal logic Ota Weinberger replaced the notion of truth with the concept of practical certainty.33 This line of theoretical considerations was also confirmed by its projection into the theory of civil procedure law by the Josef Macur: “Law is a purely practical field of social life. … In practice, therefore, absolute certainty of knowledge can not be attained, but practicable certainty can be achieved. … The knowledge gained by a court in civil proceedings is not and can not be an absolute knowledge. Material truth is not absolute truth or absolute certainty. It is probable, but it is a probability of a certain qualitative level that can be identified with practical certainty. There is no reason why this concept, which is common and fully taught in the field of technology, economics, health, etc., is rejected in legal science and in legal practice.”34

Charles University Professor Luboš Tichý is in a position of preference for the probability category: “Probability is a certain degree of truth. The highest degree of true decision is reached only if we keep the probabilities. … Evidence should be understood as proof of probability, judgment as judgment or probability. Differently, however, it is the question of what degree of probability must be achieved in order for a judge to see a certain fact as proven. There are a number of approaches here, but fundamentally there are two models: high probability beliefs or doctrine of the predominant probability. … From the point of view of the conclusion of the evidentiary procedure, i. e. the evaluation of evidence, each evidence is a proof of probability rather than a proof of truth. … free evaluation of evidence 31  For an interesting review of theories of truth, see Gloy, Wahrheitstheorien. Tübingen-­ Basel 2004. 32  Solnař, Učebnice trestního řízení, (Textbooks of criminal procedure law), Praha 1945, p.  15. 33  Weinberger, Logické a metodologické základy důkazu v oboru práva, (Logical and methodological basis of proof in law), Stát a právo, 1967, no.  13, p.  202. 34  Macur, Dokazování a procesní odpovědnost v občanském soudním řízení, (Evidence and Liability in Civil procedure law), Brno 1984, p.  69.

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is in fact based on probability judgment. The objective aspect of evidence is complemented by its subjective side. This is reflected in the judge’s belief that the degree of probability required to ascertain a certain fact has already been reached.”35 The Czech Civil Code distinguishes for different cases different levels of standard of proof. This difference Tichý divided into three types and quantifies the individual probability levels. He distinguishes between ‘simple or relative’ of 40 %, ‘high’ of 80 % and the ‘near-certainty’ probability of 90 %.36 In response to Luboš Tichý’s article, Reinhard Greger, Emeritus Professor at the University of Erlangen-Nuremberg, who devoted himself to the issue of the relationship of truth and probability in law of evidence his dissertation,37 holds the position oppositely: “In law of evidence the notion of probability has no the right to existence. The judge can only base his decision on such claims as he is convinced of.”38

The key problem of probability considerations as a criterion for the level of standard of proof in criminal law is given by Wolfgang Frisch, Professor Emeritus at Albert Ludwig University of Freiburg: “some probability can never be enough to justify (i. e. legitimize) the conviction and punishment of the accused”.39 All that Frisch regards as a measure of proof for a “serious discussion” is the idea of “probability bordering on certainty”, but in this context draws attention to the “ambiguity” of this construction, after you asks, “what actually makes probability bordering on certainty?”.40 Frisch also calls for competing hypotheses of factual findings to be judged on grounds that are “intersubjectively comprehensible” and which rely on logic (thinking laws) and knowledge of experience.41 Let us note here that Frisch’s point of view of intersubjectivity is a variation on Savigny’s thesis – it is a point of support in “the general laws of thought, experience and human knowledge”.42 For today’s generation, there is a marked increase in scepticism about the possibilities of getting closer to the value of truth in the evidence. For example, Matthias Jahn, Professor of Criminal Law at the Law School of the Goethe University in Frankfurt am Main, notes in this regard: “From my experience in the judiciary, the idea that a person in criminal proceedings reconstructs the truth through a demanding search is a fable. … The goal can only be the fact that … a result acceptable to objective observers or readers is accepted. But the word 35  Tichý, Pravděpodobnost v hmotném právu a míra důkazů (skica o možné změně paradigmatu v NOZ). (Probability in material law and the standard of proof), Bulletin advokacie, no.  12, 2013, p.  30–31. 36  Ibidem, p.  32. 37  Greger, Beweis und Wahrscheinlichkeit. Das Beweiskriterium im allgemeinen und bei den sogenannten Beweiserleichterungen. Köln 1978. 38  Greger, Důkaz a pravděpodobnost. (Evidence and probability), Bulletin advokacie, no.  12, 2013, p.  34. 39  Frisch, Beweiswürdigung und richterliche Überzeugung. Zeitschrift für internationale Strafrechtsdogmatik, Nr.  10, 2016, p.  710. 40  Ibidem, p.  711. 41  Ibidem, p.  713. 42  Savigny, Die Prinzipienfrage in Beziehung auf eine neue Strafprozessordnung. Berlin 1846, p.  65.

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of truth is naive. … The old idea that the criminal procedure truly reflects reality must be rejected. … The old idea that the criminal procedure truly reflects reality must be rejected. Rather, we should be more modest: at the end of the criminal procedure the most likely version of the truth arises, not the only truth. The only truth can not be reached in criminal procedure.”43

A similar development of opinions also takes place in the case law (of the Czech courts). The Supreme Court of the Czech Republic, when considering the categories of material truth, probability and practical certainty, has come to the first and third of these categories, the probability as a measure of proof was not accepted (i. e. judgments No. 21 Cdo 2682/2013, 6 Tdo 332/2015). In contrast, the Constitutional Court of the Czech Republic pronounced the thesis (decision No. I ÚS 173/13), according to which “no factual circumstances can be subsequently proved, ex post, with absolute certainty. It will always be a question of a certain degree of probability … Absolute certainty is therefore a standard of proof that can not be applied in court proceedings, because it would be virtually impossible to bear the burden of proof”. The Constitutional Court did not accept either the concept of material truth or the concept of practical certainty, but rather the concept of “high” probability. In the case, he argued for two reasons: the first was the unachievability of knowing the truth, as well as the incomprehensibility of “certainty”, while the other was the protection of the rights of one of the parties to the civil proceedings, which is considered to be weaker for “objective” reasons. In another case, the Constitutional Court drew the opinion of the “internal conviction of a judge” (decision No. II ÚS 4266/16): “The judge must be convinced internally of a certain fact in order to make a decision. … the degree of conviction of a court can not be determined in advance because the judge is independent in his decision-making and is bound only by a legal order imposed on him by the principle of free evaluation of evidence. The essence of the free evaluation of evidence is the mental activity of the judge, which consists of such components as the average life experience of every person, the personal life and professional knowledge and experience of the judge, and the specific knowledge found during the hearing of a particular case.”

Finally, in the next case, the Constitutional Court puts itself in the position of “the highest degree of certainty” (decision No. I 520/16): “Criminal procedure require the highest degree of certainty that can be required of human know­ ledge, at least at the level of the general rule of proof beyond any reasonable doubt”. The assessment of the level of standard of proof at the highest judicial courts in the Czech Republic thus offers an image of postmodern deconstruction and 43  Jahn, Richterliche Überzeugungsbildung „Die Suche nach der Wahrheit wäre naiv“. ­ egal Tribune Online, 11.01.2011, https://www.lto.de/recht/hintergruende/h/richterliche-­ L ueberzeugungsbildung-die-suche-nach-der-wahrheit-waere-naiv/.

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postmodern fragmentation: they are defining before us stances clinging to the concept of material truth, practical certainty, probability and inner conviction of the judge. In addition, the issue of law of evidence is also ambiguous from the point of view of adopting its basic paradigm, the principle of free evaluation of evidence. Although the principle of free evaluation of evidence is dominant in the modern procedural law, the principle of bound evidence evaluation is also applied in a limited framework. This is done both on a legislative and on a judicial level. An illustration of the legislative regulation of the elements of the bound evaluation of evidence in the criminal procedure is the institute of undisputed facts according to the Czech Criminal Procedure Code. Undisputed facts do not require evidence; they are undisputed by the consent of the accused. An illustration of the use of bound evidence assessment by the Court is the decision of the Constitutional Court No. III. ÚS 499/04, according to which the evidence of testimony of the so-called “confidential witnesses” can not be the sole proof or the main proof (decisive), and a contrario may be just one of the proofs, and the supporting evidence. Its probative power is therefore determined a priori and does not depend on the judge’s assessment. An example of another is “the use of odor traces as indirect or supportive evidence” (decision of the Constitutional Court No. II. ÚS 4266/16). In addition, under the influence of American legal thinking, there is also a reflection in Europe to reject the notion of practical certainty and its replacement by the principle of prevailing probability, respectively prevailing conviction.44 In other words, in the adversarial trial, the judge will, in evaluation of the evidence, be inclined towards the procedural party where the probability of factual findings based on the evidence submitted by that party is greater. The standard of proof is therefore not determined by the practical certainty of a judge to achieve the law required by standard of proof, but rather the prevailing probability. The problem of this approach, which is associated with civil litigation, is to reduce the general level of standard of proof. It is a question of whether such an approach in continental Europe is acceptable in terms of the value of justice. It is therefore a question of whether such a judgment is acceptable to the public, which does not link the abuser’s burden of proof with the applicant’s practical certainty of the truth of the alleged facts, but more likely than the defendant’s claim. Let us return to the tendencies that can be observed today in the area of the evaluation of evidence by the judge. According to Reiner Hamm, Honorary Professor of Criminal Law at the Goethe University in Frankfurt am Main and an important lawyer in criminal matters, in the jurisprudence of the review courts, “in general, there is a tendency to increase the requirements for evalua44 

Schweizer, Beweiswürdigung und Beweismaß, note number 9, pp.  520 f., 604–605.

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tion of evidence in court judgments and the requirements for their concretisation”.45 Günther Arzt, a professor of criminal law at the universities of Göttingen, Erlangen and Bern, also pronounces the same statement, when he notes at the margins of the current review procedure that there is “a general tendency to weaken evidence factors such as experience and proximity, removing free space for evaluation of evidence from the courts of first instance, and transferring the defect removal process to a higher court”, as well as “the tendency to force judges of the court of first instance to provide more detailed justification for their free evaluation of evidence“.46 The postmodern scepticism of rationality, and also the rationality of free evaluation of evidence, the narrowing of the autonomous area for the evaluation of evidence by founding courts, results in a vertical shift of evidence to the level of the third or fourth instance, and the tendency to shift the focus of evidence to those for whom less room for evaluation of evidence (compared to witness testimony, for example on telephone or field wiretaps, telecommunication records or expert evidence). This brings me to the basic thesis of my reflection: the standard of proof and the evaluation of the evidence relates to the accepted concept of truth behind which the understanding of the relationship between the individual and society is hidden. Exactly in the sense of the thesis of Alasdair MacIntyre, according to which there are not two pasts, one past of theoretical thinking, and the other the historical past. The accentuation of the theory of correspondence in modern times is connected with the new form of self-identification of modern man – with the understanding of a person in the sense of a free and reasonable individual. Recall that the Middle Ages perceived the relationship of the individual and the whole differently. He perceived it as a relationship in which the community played a decisive role, i. e. authority. 47 In the field of law of evidence, this is a fundamental consequence: the probative force of the means of proof has not been determined by an individual, but by an aprioric authority (by God’s command or by law). Postmodern brings a critique of modernity, a critique of rationalism and at the same time an extension of negative freedom, brings a noetic scepticism, and 45 

Hamm, Die Revision in Strafsachen. 7th ed., Berlin-New York 2010, p.  370. Arzt, Ketzerische Bemerkungen zum Prinzip in dubio pro reo. Berlin 1997, p.  7, 9. 47  Le Goff, La Civilisation de l’Occident médiéval. Paris 1964, reprint 1982. Czech translation: Kultura středověké Evropy. Praha 1991, pp.  108–109: “If we try to bring people of medieval Western Europe closer to their individuality, we will soon know that individuals, as in every society, each belong to several groups or communities, but in the Middle Ages they seemed to have disappeared in them rather than applying to them. … A medieval man has no sense of freedom in modern understanding of that word. Freedom is a privilege for him, and the words are rather used in plural. … There is no freedom without society. Freedom may rest only on the basis that the presenter guarantees the subordinate respect for his rights.” 46 

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also freedom in terms of personal autonomy. Her noetic scepticism, therefore, does not return to authority: German historian Wolfgang Reinhard characterizes the retreat of modern paradigms, such as symmetry, linearity, rationalism, using the metaphor of the arrival of the “new Middle Ages, but which is lacking in common values”.48 Let’s repeat what has already been said. Changes in the relationship between the individual and society are due to, among other things, an increase in skepticism towards the results of the evidence procedure. This skepticism is reflected in the increase in the increase in the number of judicial review courts, and the increase in evidence-based requirements. We are also witnessing a rise in the credibility of such evidence, including telephone and field wiretaps, telecommunication traffic records, DNA identification, image identification of people. Lastly, the current assessment of the level of standard of proof in the highest judicial courts offers an image of postmodern deconstruction and postmodern fragmentation: we are faced with the opinions clinking to the concept of material truth, practical certainty, probability and inner conviction of the judge. In the field of law of evidence, the distinction between criminal proceedings and civil proceedings is abandoned, and beyond, as a form of penetration of postmodern perception of liberty as personal autonomy, a new moment also arises: reducing the required degree of evidence in a procedural party that is considered weaker by the court. Let’s try at least partially to organize this deconstruction and fragmentation. Let’s try to outline the mutual relationships between the meanings of truth, probability, practical certainty, and inner conviction. Legal thinking in the institute of material truth applies the correspondence theory of truth, especially in the form of theory of falsification, but also applies the pragmatic theory of truth in the form of a concept of practical certainty or inner conviction (while the concept of practical certainty is connected with the achievement of generally shared experience and knowledge, the concept of inner conviction related rather to a subjective, judicious perception of experience and knowledge). Legal thinking also applies procedural theory of truth, in the cases of a priori definition of the probative value of individual evidence (in the sense of bound evaluation of evidence), and last but not least applies a coherence theory of truth if required by the outcome of the evidentiary procedure (in this case, in criminal procedure), a “closed chain of evidence”, in which “there must be no other real possibility that the act could commit anyone other than the accused or later defendant” (decisions of the Constitutional Court No. I. ÚS 394/97, II. ÚS 418/99, IV ÚS 10/02, II ÚS 90/04, II ÚS 2168/07 II ÚS 3094/08, II ÚS 4266/16). 48  Reinhard, Geschichte des modernen Staates. Von den Anfängen bis zu Gegenwart. München 2007, p.  123.

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In the law of evidence, we are confronted with the tension between, on the one hand, the requirement of truth and, on the other, the principle of the incompleteness of human cognition. The category of justice is therefore the reason for establishing a procedural institute for the renewal of a procedure, an institute whereby the final judgment can be reversed if new facts or new evidence arise which, in themselves or in connection with the evidence previously proved, ­justify the acceptance of different factual findings were the factual findings on which the judgment was based. This fact is well aware of lawyers. An illustration is the concise reasoning of the German Reich Court contained in the judgment of January 14, 1885: “Due to the limited means of human knowledge, no one can (except in the case of his own direct observation of a certain plot) obtain absolutely certain knowledge of the existence or absence of any facts, the conceivable possibility that the decisive facts did not occur. Whoever understands the limits of human knowledge can never assume that he can be convinced of the existence of any action without any doubt and that his error is absolutely excluded. Therefore, in human life, a high degree of probability, which arises from the exhaustive and careful use of available means of knowledge, can be considered as true. The conviction of the cognitive subject about the dangers of such a high degree of probability is a conviction of the truth.”49

The incompleteness of knowledge is the reason for probability knowledge, but the category of truthfulness is linked to the category of justice in the whole of European history and thus to its legitimacy. The legitimacy of the lawsuit is determined by the acceptance of its outcome, ie acceptance of the judicial decision by the public (or by accepting the judicial system whose decision is the result). Practical certainty thus becomes an instrument combining the probability and truth of knowledge. The inability to reach the value of truth in its completeness and its absolutes and the abandonment of the connection between the fairness of the trial, its legitimacy and the achievement of truth in the factual findings by the court leads to the identification of the probability measure at present. There is some misunderstanding. We use the category of probability in our thinking in two different ways. The first represents numerical probability. This requires the adoption of a method of quantification of cognitive phenomena. The numerical probability can then be of a dual kind. The first is statistical, posterior probability. This method of evaluating cognitive phenomena is typical for quantum physics. Let us add that in the law of evidence can not justify the exact percentage determination of the required probability level, as well as determine the method leading to its determination. The second is the classification, i. e. the a priori probability. 49 Retrieved from Macur, Postmodernismus a zjišťování skutkového stavu v civilním soudním řízení, (Postmodernism and determination of the facts in civil procedural law), Brno 2001, p.  127.

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An example of this is the tied assessment of evidence typical of the Middle Ages. The degree of probability according to the bound evidence evaluation was therefore determined in advance. The second way to use a probability category in our thinking is a non-numerical probability. This probability relies on human experience, knowledge, and principles of logical thinking (especially on the principles of excluded middle and deduction). This way of thinking is typical of legal evidence, which is based on the principle of free evaluation of evidence.50 The non-numerical probability is the indication of the actual state of evidence in law. The standard of proof may be determined in general, for example the requirement to establish the facts necessary for the decision without any reasonable doubt. In addition, it can be determined at a reduced rate, e. g. when deciding to impose custody by reason of suspicion of committing an offense. The probability determined by the general standard of proof (which is an expression of the objective theory of the standard of proof) in the degree referred to as practical certainty (which is the expression of subjective theory of standard of proof) we achieve in the judicial procedure by evaluating evidence based on general and special experiences, general and special knowledge, coherence of evidence, assurance, and procedural safeguards, including the principle of contradictory procedure, the right of the parties to submit evidence and to comment on all the evidence, the transparency of the justification of the judicial decision and the court review. The reduced rate of evidence may then be linked to the limitation of the scope of the evidence, the limitation of the adversarial nature, the limitation of the scope of the grounds of the decision, and the limitation of the court review. The probability of factual findings, which attains the level of general standard of evidence, then creates practical certainty of their truthfulness, which is the basis for the acceptance of a judicial decision. We do not see any convincing arguments to abandon this idea scheme that we have been guided in continental Europe since the late 19th century. Yes, I belong to the dinosaurs of modern times, I prefer ordering before entropy and chaos, rationality and decency before skepticism, even in the field of evidence, in the field of finding the standard of proof.

50  For example see Anastasia-Judgment of German constitutional court, 17 February 1970: “The judge may and must, however, in truly dubious cases be content with a degree of certainty useful for practical life, which will silence doubts without excluding them altogether.”

Standard of Proof as Decision Threshold Mark Schweizer

I. Introduction This contribution argues that the standard of proof in civil proceedings, understood as the degree of conviction required before a judge may accept contested factual statements as true, should be such that a judge accepts a factual statement if he believes it more likely to be true than not. A higher degree of conviction, such as “full conviction”, i. e. a conviction bordering on certainty,1 should be reserved for criminal cases. This standard is both normatively appropriate as well as compatible with positive German law. The argument has been more fully developed in my Habilitationsschrift;2 the main purpose of this article is to present it to English speakers that do not read German. Like in all summaries, some subtleties are lost. The only substantially new argument is that European law may require a lower standard of proof than the one traditionally applied in civil matters in Germany because national procedural rules must not undermine the effectiveness of European law, which a too demanding standard of proof could.3 This arose from the discussion at the seminar so generously organized by Professor Luboš Tichý and the Charles University, Prague. The paper is structured as follows: after first defining some of the central terms, the goal of civil proceedings is explained, because it follows from this goal that the factual statements accepted as true in a judgment should ideally correspond to external reality. This implies acceptance of the existence of such external reality outside a spectator’s mind. It is shown that a judge, when he or she decides whether to accept a contested statement as true, necessarily decides under uncertainty. Such a decision is best analysed using tools developed to analyse decision making under uncertainty, which is done in the following section. The implications of such an approach are explained in the next section, followed by some paragraphs on what has been suggested to be implied by the approach by critics of a decision theoretic approach, but which is not actually 1  Currently required in civil matters (as regular standard) in Germany and Switzerland, BGHZ 53, 245 = BGH NJW 1970, 946 (the famous “Anastasia” case); DFT [Decision of the Federal Tribunal = BGE] 130 III 321 cons.  3.2. 2  Schweizer, Beweiswürdigung und Beweismaß. Rationalität und Intuition. Tübingen: Mohr Siebeck, 2015. 3  ECJ, judgment of 21 June 2017, N. W. and Others, C‑621/15, EU:C:2017:484, paras.  31, 34.

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implied. The next section seeks to rebuke a number of arguments raised against the preponderance of conviction standard, such as that it was incompatible with positive German law, that the allocation of the burden of proof would take into account the error costs of a wrong decision, and that the error cost of a decision wrongly accepting a claim was different from the error cost of wrongly denying a claim. A plethora of additional arguments are very briefly addressed at the end of this part. A concluding section summarizes the contribution.

II. Standard of Proof Defined In the following, “standard of proof” is understood as the degree of conviction of the fact finder that permits him or her to accept contested factual statements as true. In Switzerland, this understanding of standard of proof is uncontested;4 in Germany, it is ruling.5 Conviction thus understood is gradual – while the statement it refers to can only be true or false, the judge can be more or less convinced that it is true. This is disputed by some authors who argue that one is either convinced or not. 6 Swiss and German case law, however, has always understood conviction as gradual, clearly stating that “full conviction” is less than certainty.7 Standard of proof must be distinguished from burden of proof. “Burden of proof” should be reserved for the procedural obligation to persuade the fact finder (“burden of persuasion” or “objektive Beweislast” in German terminology) and to adduce evidence (“burden of production” or “subjektive Beweislast”8 in German terminology). The burden of persuasion determines which party suffers (by losing their case) when the conviction of the fact finder does not reach the pre-determined decision threshold.9 This article is purely concerned with the standard of proof. While it is true that requiring a lower degree of con4  DFT 130 III 113 cons.  3.4; Berti, Einführung in die schweizerische Zivilprozessordnung. Basel, 2011, para  128; Staehelin, Staehelin and Grolimund, Zivilprozessrecht. Unter Einbezug des Anwaltsrechts und des internationalen Zivilprozessrechts. Zürich: Schulthess, 2013, §  18 n.  30. 5  Dammann., Materielles Recht und Beweisrecht im System der Grundfreiheiten, Tübingen: Mohr Siebeck, 2007, 27. 6  Greger, Beweis und Wahrscheinlichkeit. Das Beweiskriterium im Allgemeinen und bei den sogenannten Beweiserleichterungen. Köln: Heymann, 1978, 20; Brinkmann, Das Beweismaß im Zivilprozess aus rechtsvergleichender Sicht. Köln, Berlin, München: Heymann, 2005, 63; Berger-Steiner, Das Beweismass im Privatrecht. Eine dogmatische Untersuchung mit ­Erkenntniswert für die Praxis und die Rechtsfigur der Wahrscheinlichkeitshaftung. Bern: Stämpfli 2008, para.  5.76. 7  Cf. BGHZ 53, 245; DFT 130 III 321 cons.  3.2. 8  Rosenberg, Die Beweislast auf der Grundlage des bürgerlichen Gesetzbuchs und der Zivilprozessordnung. München: Beck, 1965, 16. 9  Baumgärtel, Beweislastpraxis im Privatrecht. Die Schwierigkeiten der Beweislastverteilung und die Möglichkeiten ihrer Überwindung. Köln: Heymann, 1996, n.  9.

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viction before the judge may accept contested statements as true diminishes the importance of the rules on burden of proof,10 the two concepts can and should be distinguished and analysed separately.

III. The Goal of Civil Proceedings Before we can define the goal of fact finding in civil cases, we must determine the goal of civil proceedings.11 According to the ruling doctrine in Germany and Switzerland, a judgment does not create a right, it merely enforces it.12 A right (subjektives Recht) exists irrespective of whether it has been accepted by a competent court. It comes into existence when the facts declared constitutive for the right by substantive law are the case. A person or entity which has a claim that is contested by another party may invoke the aid of the court to enforce his or her claim.13 Primary purpose of a civil proceeding is therefore the enforcement of substantive law in the interest of a private party.14 A long-running dispute in the German doctrine concerns the question whether the primary purpose of civil proceedings is the guarantee of objective

10  Stating the obvious. Berger-Steiner, Das Beweismass im Privatrecht. Eine dogmatische Untersuchung mit Erkenntniswert für die Praxis und die Rechtsfigur der Wahrscheinlichkeitshaftung. Bern: Stämpfli, 2008, para.  5.126. 11  For a current overview of the German debate see Althammer, Streitgegenstand und Interesse. Eine zivilprozessuale Studie zum deutschen und europäischen Streitgegenstands­ begriff. Tübingen: Mohr Siebeck 2012, 238 ff.; for the older doctrine Henckel, Prozessrecht und materielles Recht. Göttingen: Schwartz, 1970, 48 ff. 12  Zöllner, Materielles Recht und Prozessrecht, 1990, 476, Archiv für die zivilistische Praxis 190: 471–495; Rosenberg/Schwab/Gottwald, Zivilprozessrecht. München: Beck 2010, §  151 n.  5 f. 13  Windscheid, Die Actio des römischen Civilrechts, vom Standpunkte des heutigen R ­ echts. Düsseldorf: Buddeus 1856, 3. 14  See BGHZ 10, 350, 359; BGH NJW 1962, 1820; Baur, Richtermacht und Formalismus im Verfahrensrecht. In Summum ius summa iniuria. Individualgerechtigkeit und der Schutz allgemeiner Werte im Rechtsleben, ed. Universität Tübingen. 97–16. Tübingen 1963, 103; ­Hergenröder, Zivilprozessuale Grundlagen richterlicher Rechtsfortbildung. Tübingen: Mohr. 1995, 215; Gaul, Der Zweck des Zivilprozesses – ein anhaltend aktuelles Thema. In Zivil­ prozessrecht im Lichte der Maximen, ed. Kamil Yildirim. 68–96. Istanbul: Kalim 2001, 79; Jacobs, Der Gegenstand des Feststellungsverfahrens. Rechtsverhältnis und rechtliches Interesse bei Feststellungsstreitigkeiten vor Zivil- und Arbeitsgerichten. Tübingen: Mohr Siebeck 2005, 184 ff.; Althammer, Streitgegenstand und Interesse. Eine zivilprozessuale Studie zum deutschen und europäischen Streitgegenstandsbegriff. Tübingen: Mohr Siebeck 2012, 250 for German law; for Swiss law DFT 116 II 215 cons.  3; Meier, Privatrecht und Prozessrecht – eine Untersuchung zum schweizerischen Recht unter Einbezug des deutschen Rechts. In Mate­ rielles Recht und Prozessrecht und die Auswirkungen der Unterscheidung im Recht der internationalen Zwangsvollstreckung. Eine rechtsvergleichende Grundlagenuntersuchung, ed. Peter Schlosser. 1–112. Bielefeld: Gieseking 1992, 30; Berti, Einführung in die schweizerische Zivilprozessordnung. Basel 2011, para.  27.

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law or the protection of subjective rights.15 The distinction loses bite when one considers that the protection of subjective rights also entails the protection of defendants from unjustified claims.16 The enforcement of a justified claim always involves asserting objective law.17 The enforcement of justified claims is of course not the only goal of civil proceedings.18 Conflict resolution is another important goal.19 Respect for the privacy of parties and uninvolved citizens may conflict with the enforcement of a claim.20 As will be shown below, neither the goal of conflict resolution nor conflicting interests prevent that the goal of fact finding should be a reconstruction of reality that corresponds to the external world. They may well lead to findings 15  For objective law Wach, Handbuch des deutschen Civilprozessrechts. Band  1. Leipzig: Duncker & Humblot 1885, 3 ff.; Boor, Die Auflockerung des Zivilprozesses. Ein Beitrag zur Prozeßreform. Tübingen: Mohr. 1939, 1 f., 35; Schönke, Das Rechtsschutzbedürfnis. Ein zivilprozessualer Grundbegriff, 1949, 216, Archiv für die zivilistische Praxis 150(3): 216–234; Sauer, Allgemeine Prozessrechtslehre. Zugleich eine systematische Schulung der zivilistischen und der kriminalistischen Praxis. Berlin: Carl Heymanns Verlag KG 1951, 7; for subjective rights Baur, Richtermacht und Formalismus im Verfahrensrecht. In Summum ius summa iniuria. Individualgerechtigkeit und der Schutz allgemeiner Werte im Rechtsleben, ed. Universität Tübingen, 97–116. Tübingen 1963, 103; Grunsky, Grundlagen des Verfahrensrechts. Eine vergleichende Darstellung von ZPO, FGG, VwGO, FGO, SGG. Bielefeld: Gieseking 1974, 3 f.; Jacobs, Der Gegenstand des Feststellungsverfahrens. Rechtsverhältnis und rechtliches Interesse bei Feststellungsstreitigkeiten vor Zivil- und Arbeitsgerichten. Tübingen: Mohr Siebeck 2005, 184 f.; Rosenberg/Schwab/Gottwald, Zivilprozessrecht. München: Beck 2010, §  1 n.  9; Althammer, Streitgegenstand und Interesse. Eine zivilprozessuale Studie zum deutschen und europäischen Streitgegenstandsbegriff. Tübingen: Mohr Siebeck 2012, 242, 250. 16  Gaul, Der Zweck des Zivilprozesses – ein anhaltend aktuelles Thema. In Zivilprozess­ recht im Lichte der Maximen, ed. Kamil Yildirim. 68–96. Istanbul: Kalim 2001, 79. 17  Baur, Richtermacht und Formalismus im Verfahrensrecht. In Summum ius summa iniu­ ria. Individualgerechtigkeit und der Schutz allgemeiner Werte im Rechtsleben, ed. Universität Tübingen. 97–116. Tübingen 1963, 103; Pawlowski, Aufgabe des Zivilprozesses, Zeitschrift für Zivilprozess 80: 345–391, 1967, 347; Gaul, , Zur Frage nach dem Zweck des Zivilprozesses, Archiv für die civilistische Praxis 168: 27–62, 1968, 46 f.; Jauernig, Materielles Recht und Prozessrecht, Juristische Schulung: 329–334, 1971, 332; Rödig, Die Theorie des gerichtlichen Erkenntnisverfahrens. Die Grundlinien des zivil-, straf- und verwaltungsgerichtlichen Pro­ zesses. Berlin Heidelberg New York: Springer 1973, 43 f.; Thiere, Die Wahrung überindividueller Interessen im Zivilprozess. Bielefeld: Gieseking. 1980, 43 f. 367 ff. Sutter-Somm, Schweizerisches Zivilprozessrecht. Zürich: Schulthess. 2012, para.  1 ff. 18  Instead of many Gaul, Zur Frage nach dem Zweck des Zivilprozesses, Archiv für die civilistische Praxis 168: 27–62, 1968, 50. 19 Instead of many Althammer, Streitgegenstand und Interesse. Eine zivilprozessuale Studie zum deutschen und europäischen Streitgegenstandsbegriff. Tübingen: Mohr Siebeck 2012, 243 ff. 20  BGH NJW 2003, 1123, 1125; Weber, Der Kausalitätsbeweis im Zivilprozeß. Kausalität, Beweiswürdigung und Beweismaß, Beweiserleichterungen vornehmlich im Blick auf den Schadensersatzprozeß wegen unerlaubter Handlungen. Tübingen: Mohr Siebeck, 1997 15 f.; Gaul, Zur Frage nach dem Zweck des Zivilprozesses, 2001, 89, Archiv für die civilistische Praxis 168: 27–62; Taruffo, Chapter  7: Evidence. In International Encyclopedia of Comparative Law. Vol. XVI, Civil Procedure, ed. Mauro Cappelletti and René David. 1–87. Tübingen: Mohr Siebeck, 1973–2010, 8.

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that do not achieve this goal, but simply because a goal is not achievable in all cases does not mean we should abandon it.

IV. The Goal Of Fact Finding In Civil Cases From the goal of enforcing justified claims – and conversely not enforcing unjustified claims – follows that the goal of fact finding in civil cases is a reconstruction of the state of the world that corresponds with the external state of the world, one that is “true” in the sense of a correspondence theory of proof.21 Because if the facts that allegedly give rise to the claim do not exist, substantive law does not create the claim, and procedural law should not enforce it. The postulate that the reconstruction of the external world in a civil judgment should correspond to reality is both simple and ambitious, and some call it naïve. The postulate first requires that there is a state of the world independent of the observer’s mind, a “reality” so to speak. Most people would intuitively accept this,22 but it is in fact exceedingly hard if not impossible to disprove external world scepticism.23 I admit that I have nothing substantive to add to the philosophical argument against global scepticism. I do believe that if one truly subscribes to a sceptical position, the whole exercise of judicial fact finding becomes superfluous.24 If it is “narratives all the way down”25 , we need not bother with documents, witnesses and inspections. Like most Anglo-American evidence scholars, 26 I subscribe to a notion of realism. This realism entails that (i) there exists a world of material objects which is largely independent of perception; (ii) these objects have 21  For a formal definition of a correspondence theory of truth, see Tarski, Die ­semantische Konzeption der Wahrheit und die Grundlagen der Semantik, 1977, 143. In Wahrheitstheorien. Eine Auswahl aus den Diskussionen über Wahrheit im 20. Jh, ed. Skirbekk. 140–188. Frankfurt am Main: Suhrkamp. 22  Roth, Erkenntnis und Realität. Das reale Gehirn und seine Wirklichkeit. In Der Diskurs des Radikalen Konstruktivismus, Siegfried J. Schmidt (ed.), 229–255. Frankfurt am Main: Suhrkamp, 1987, 231 (Roth himself is a sceptic). 23  Greco, External World Skepticism, 2007, Philosophy Compass 2(4): 625–649. 24  As do Döhring, Die Erforschung des Sachverhalts im Prozess. Berlin: Duncker & Humblot, 1964, 6; Gössel, Ermittlung oder Herstellung von Wahrheit im Strafverfahren? Berlin: de Gruyter 2000, 18; Twining, Some scepticism about some scepticisms. In Rethinking evidence. Exploratory essays, ed. Twining. 99–164. Cambridge, New York: Cambridge Univ. Press 2006, 105; Pardo, The Field of Evidence and the Field of Knowledge, Law and Philosophy 24(4): 321–392, 2005, 339. 25  Scheppele, Practices of Truth-Finding in a Court of Law. The Case of Revised Stories. In Constructing the social, Theodore R. Sarbin and John I. Kitsuse (eds.), 84–100. London, Thousand Oaks, Calif: Sage. 1994, 93. 26  Twining,The Rationalist Tradition of evidence scholarship. In Rethinking evidence. Exploratory essays, ed. Twining. 35–98. Cambridge, New York: Cambridge Univ. Press. 2006, 78.

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properties of the types we perceive them as having, even when they are not being perceived; and (iii) some statements about these objects can be known to be true through perception.27 It is primarily the third statement that requires some elaboration. It does not entail the naïve belief that human perception is infallible.28 Perception is not a one-way street from the senses to the mind. A reconstruction of the external world in the observer’s mind is always the result of both the input from the senses and the processing of the input by the mind.29 It is only required that it is possible, by an observer having non-defective senses, under ideal circumstances to verify that a statement is true by perception. This verification cannot further be justified.30 When a judge states, after inspection of a building, that there is a crack in its western wall, she cannot give any reasons for this statement other than that she personally saw the crack. If one disputes that verification through perception is possible,31 one must require that the judge further justifies her finding. I fail to see how such further justification is possible. That verification through perception under ideal circumstances is possible also seems to conform with the behaviour of most litigants: parties generally do not dispute facts that are verifiable by judicial inspection (Augenschein). Disputed is typically not that there is a crack in the western wall, but what caused it, which is not directly observable. Whether truth in the sense of a correspondence theory of truth is a goal of fact finding in civil cases is, at least in the German literature, controversial. It is argued that it is not the duty of the judge to find the “historical” 32 or “scientific”33 truth. Goal of judicial evidence evaluation in civil cases was only the formal,34

27  Loosely translated from Franzen, Totgesagte leben länger. Beyond Realism and Anti-­ Realism: Realism. In Realismus und Antirealismus, ed. Forum für Philosophie Bad Homburg. 20–65. Frankfurt am Main: Suhrkamp.  1992, 23. 28  Glasersfeld, Einführung in den radikalen Konstruktivismus. In Die erfundene Wirk­ lichkeit. Wie wissen wir, was wir zu wissen glauben? Beitrage zum Konstruktivismus, ed. Paul Watzlawick. 16–38. München [etc.]: Piper. 1997, 36 f. 29  Frith, Making up the mind. How the brain creates our mental world. Malden: Blackwell 2007, 17 ff. 30  Bourmistrov-Jüttner, Subjektive Wahrscheinlichkeitstheorie und rationale Entscheidungstheorie in Anwendung auf die Rechtspraxis. München 1987. 31 Like Siegrist, Grundfragen aus dem Beweisrecht des Zivilprozesses. Bern 1938, 20 f.; Berger-Steiner, Das Beweismass im Privatrecht. Eine dogmatische Untersuchung mit Er­ kenntniswert für die Praxis und die Rechtsfigur der Wahrscheinlichkeitshaftung. Bern: Stämpfli 2008, para.  5.105. 32  Rommé, Der Anscheinsbeweis im Gefüge von Beweiswürdigung, Beweismass und Beweislast. Köln: Heymann 1989, 87. 33  Prütting, §  286. In Münchener Kommentar zur Zivilprozessordnung, ed. Krüger and Rauscher. München: Beck 2013 para.  1. 34  Craushaar, Zivilprozess und Zwangsvollstreckung. Stuttgart, Berlin, Köln, Mainz: Kohlhammer 1979, 100.

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juridical35 , normative,36 procedural,37 philosophical,38 relative,39 social,40 subjective41 or subjectivistic42 truth. All these concepts of truth have in common that they are gradual.43 They allow claiming that the judgment is based on “formal” truth if the procedural rules are followed, although it is evident that the fact-finding procedure is not suited to establish the truth with certainty.44 I reject these theories and posit that the reconstruction of the state of the world in the judgment should correspond with the external state of the world.45 It is difficult to see how justice could be served if this was not the goal of judicial 35  Jolidon, Vérité, justice et procédure civile, Zeitschrift des bernischen Juristenvereins 109: 177–203, 1973, 199. 36  Ileri, Die Wahrscheinlichkeit oder die normative Wahrheit. In Festschrift zum fünfzigjährigen Bestehen, ed. Schweizerische Gesellschaft für Haftpflicht- und Versicherungsrecht. 273–288. Zürich: Schulthess 2010, 273. 37  Rödig, Die Theorie des gerichtlichen Erkenntnisverfahrens. Die Grundlinien des zivil-, straf- und verwaltungsgerichtlichen Prozesses. Berlin Heidelberg New York: Springer 1973, 158 ff.; Musielak, Die Grundlagen der Beweislast im Zivilprozess. Berlin: de Gruyter 1975, 118; Rommé, Der Anscheinsbeweis im Gefüge von Beweiswürdigung, Beweismass und Beweislast. Köln: Heymann 1989, 87. 38  Stahlmann, Der Sachverständigenbeweis im Modell des sozialen Zivilprozesses. Eine prozessrechtstheoretische Konzeption. In Sachverständige im Zivilprozeß. Theorie, Dogmatik u. Realität des Sachverständigenbeweises, ed. Breunung, Pieper and Stahlmann. 73–123. München: Beck 1982, 97. 39  Rommé, Der Anscheinsbeweis im Gefüge von Beweiswürdigung, Beweismass und Beweislast. Köln: Heymann 1989, 73. 40  Stahlmann, Der Sachverständigenbeweis im Modell des sozialen Zivilprozesses. Eine prozessrechtstheoretische Konzeption. In Sachverständige im Zivilprozeß. Theorie, Dogmatik u. Realität des Sachverständigenbeweises, ed. Breunung, Pieper and Stahlmann. 73–123. München: Beck 1982, 91. 41  Brinkmann, Das Beweismaß im Zivilprozess aus rechtsvergleichender Sicht. Köln, ­Berlin, München: Heymann, 2005, 6. 42  Boden, Über historische und forensische Wahrheit und Wahrscheinlichkeit, Archiv für die gesamte Psychologie 31(1): 1–26, 1914, 21. 43  Particularly clear Boden, Über historische und forensische Wahrheit und Wahrschein­ lichkeit, Archiv für die gesamte Psychologie 31(1): 1–26, 1914, 21 26; Jolidon, Vérité, justice et procédure civile, Zeitschrift des bernischen Juristenvereins 109: 177–203, 1973, 199 f.; Rommé, Der Anscheinsbeweis im Gefüge von Beweiswürdigung, Beweismass und Beweislast. Köln: Heymann 1989, 72 f. 44  Brinkmann, Das Beweismaß im Zivilprozess aus rechtsvergleichender Sicht. Köln, ­Berlin, München: Heymann 2005, 8. 45 Likewise Rüßmann, §  286. In Alternativkommentar zur ZPO, ed. Wassermann. Neuwied 1987 para.  14; Greger, Beweis und Wahrscheinlichkeit. Das Beweiskriterium im Allgemeinen und bei den sogenannten Beweiserleichterungen. Köln: Heymann 1978, 38, 118; Walter, Freie Beweiswürdigung. Tübingen: Mohr Siebeck 1979, 164; Kaufmann 1986, 11 f.; Gräns, Das Risiko materiell fehlerhafter Urteile, (Diss. Uppsala 1995), Berlin: Duncker & Humblot 2002, 22; Kraatz, Der Einfluss der Erfahrung auf die tatrichterliche Sachverhaltsfeststellung. Zum “strafprozessualen” Anscheinsbeweis. Berlin: de Gruyter 2011, 87; different Huber, Das Beweismaß im Zivilprozess. Köln: Heymann 1983, 92; Rommé, Der Anscheinsbeweis im Gefüge von Beweiswürdigung, Beweismass und Beweislast. Köln: Heymann 1989, 73; Rafi, Kriterien für ein gutes Urteil. Berlin: Duncker & Humblot 2004, 53 ff.

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fact finding.46 The fact that the parties are free not to contest a factual statement does not absolve the judge from seeking to establish the truth in cases where the veracity of factual statements is contested.47 Neither do conflicting goals inside and outside of the procedural code. While they may limit the available means to establish the truth, the do not require a relativization of the meaning of truth.48 Undisputedly, basic limitations of human cognition as well as procedural restraints on fact finding may lead to a reconstruction of the state of the world in the judgment that does not correspond to the external world. One important benefit of insisting that truth in the sense of correspondence to reality should be the goal of judicial fact finding is the admission that judgments can be wrong, rather than based on a “formal truth”, even if no procedural errors were made in the establishment of the factual basis for the judgment and the judgment is therefore not challengeable by appeal. Such a judgment may be procedurally correct, but wrong in the sense that is misses the goal of establishing the truth.

V. Fact Finding Is Decision Making Under Uncertainty Only in the rarest of cases will the judge know with certainty that the reconstruction of the state of the world in his or her judgment corresponds with reality. Unlike a scientist who may withhold judgment until he or she has more evidence, the judge in civil proceedings must decide for or against the party bearing the burden of proof after the taking of evidence. Outside certain areas of law, e. g. family law, he is not allowed to gather more evidence ex officio. This means that in almost all cases, she or he must decide under conditions of irresolvable uncertainty regarding the actual state of the external world. According to one model of decision making under uncertainty, often referred to as Bayesian, the fact finder starts with some prior probability (plausibility) for the truth of the relevant factual statements, updates this probability in light of the evidence presented to her during the trial using Bayes rule, and ultimately arrives at a posterior subjective probability for the truth of those statements.49 46  Endemann, Die Beweislehre des Civilprocesses. Heidelberg 1860, 3; Gaul, Zur Frage nach dem Zweck des Zivilprozesses, Archiv für die civilistische Praxis 168: 27–62, 1968, 49; Schmidt, Der Zweck des Zivilprozesses und seine Ökonomie. Frankfurt am Main: Athenäum 1973, 35; Blomeyer, Zivilprozessrecht – Erkenntnisverfahren. Berlin: Duncker & Humblot 1985, 111; Schöpflin, Die Beweiserhebung von Amts wegen im Zivilprozess. Frankfurt am Main, New York: Peter Lang 1992, 40 f.; Taruffo, Chapter  7: Evidence. In International Encyclopedia of Comparative Law. Vol. XVI, Civil Procedure, ed. Cappelletti and David. 1–87. Tübingen: Mohr Siebeck 1973–2010, 7. 47  German Federal Constitutional Court (BVerfG), judgment 2 BvR 1750/12 of 12 December 2012, para.  16. 48  Henckel, Prozessrecht und materielles Recht. Göttingen: Schwartz 1970, 53. 49  Lempert, Modeling Relevance, Michigan Law Review 75(5/6): 1021–1057, 1977; Kaye,

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She then compares this posterior subjective probability to a pre-determined decision threshold – the standard of proof – and decides for the party bearing the burden of proof if his degree of belief exceeds the decision threshold, and against that party if her degree of conviction does not exceed the threshold (some tie-breaking rule is needed if the posterior subjective probability is exactly equal to the decision threshold; the majority view being that in this case, the decision goes against the party bearing the burden of proof50). It is important to remember that all probabilities in this context are subjective probabilities, or degrees of belief or conviction.51 They are not “long run averages” of repeatable events, and there do not need to be objective probabilities that inform the degrees of belief. It is merely posited that the degrees of belief do not violate the axioms of probability theory,52 i. e., that the probability of an event is never negative, that absolute certainty has a probability of 100 %, and that the combined probability of the occurrence of two mutually exclusive events is the sum of their probabilities. Most people find these axioms intuitively appealing. Dutch book arguments provide a more formal justification why they are essential for rational decision making.53 Whether the Bayesian analysis of evidence evaluation is insightful or misleading has been debated for 50 years.54 One common critique is that it leads to seemingly precise numbers that are in fact nothing but guesses in mathematical guise.55 I have addressed these and other concerns elsewhere.56 For the purposes of this contribution, most of the critiques of the practicability of the Bayesian approach are irrelevant. That it is logically sound is largely undisputed.57 Of importance in the current context is that the Bayesian approach of evidence evaluation fully endorses the uncertainty involved in fact finding. The process The Laws of Probability and the Law of the Land, University of Chicago Law Review 47(1): 34–56, 1979. 50  Kegel (fn.  72), 337; Maassen (fn.  67), 10; Redmayne (fn.  135), 172; Motsch (fn.  74), 83. 51  Finetti, Fondamenti logici del ragionamento probabilistico, Bollettina della Unione Matematica Italiana 9: 258–261, 1930; Ramsey, Frank, Truth and Probability. 1999 electronic edition. In The Foundations of Mathematics and other Logical Essays, ed. Richard B. Braithwaite. 156–198. London: Kegan, Paul, Trench, Trubner & Co. 1931; Savage, The subjective basis of statistical practice. Ann Arbor: University of Michigan 1961. 52  Kolmogorov, Grundbegriffe der Wahrscheinlichkeitsrechnung. Berlin: Springer 1933. 53  Christensen, Dutch-Book Arguments Depragmatized: Epistemic Consistency for Partial Believers, Journal of Philosophy 93(9): 450–479, 1996. 54 See Park et al. (2010), for an overview. The debate started with Finkelstein and Fairley (1970) and the answer came from Tribe (1971). The collection of essays by Tillers (1988) provides an overview of the debate up to that time, and Tillers (2011) a summary of the debate since. 55  Musielak, Die Grundlagen der Beweislast im Zivilprozess. Berlin: de Gruyter 1975, 468. 56  Schweizer, Beweiswürdigung und Beweismaß. Rationalität und Intuition. Tübingen: Mohr Siebeck 2015, 186 ff. 57  BGH NJW 1989, 3162 (calling the logic of Bayes’ rule “undisputed” but doubting its practical use).

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results in a number between 0 and 1 (or more colloquially between 0 % and 100 %) that expresses a degree of belief in the truth of a statement. The expression of the resulting degree of conviction in a real number allows the application of some rather straight forward mathematical analysis.

VI. Standard Of Proof As Decision Threshold As mentioned in the preceding section, the Bayesian model of evidence evaluation leads to a degree of conviction expressed in a real number that can be compared to a decision threshold. Where this decision threshold should lie can be analysed using the tools of decision theory.58 When deciding whether a hypothesis – such as the factual statements made by the plaintiff – is true, the decision-maker can fall victim to two errors: accepting the hypothesis as true although it is actually false and rejecting the hypothesis as false although it is true. These two mistakes are often referred to as type I, or α-error, and type II, or β-error.59 As explained above, “error” here means simply that the accepted factual statements and reality do not correspond; “error” does not mean the decision maker made any procedural or other mistake. True state is H0

True state is H1

decision for H0

correct

type II error

decision for H1

type I error

correct

Table 1:  Potential errors in hypothesis testing

If the costs of the two types of errors are not equal, one does not want to minimize the number of mistakes made, but rather limit the expected costs of the decision. Let {w1, …, wc} be a finite set C of possible states and {a1, …, aa} a finite set A of possible actions. L(ai|wj) shall be the cost, expressed as a real number, of the choice of action ai if the state of the world is wj.

58  Kaplan, Decision theory and the factfinding process, Stanford Law Review 20(6): 1065– 1092, 1968; Cullison, Probability Analysis of Judicial Fact-Finding. A Preliminary Outline of the Subjective Approach, University of Toledo Law Review 1: 538–598, 1969; Kaye, Apples and Oranges: Confidence Coefficients and the Burden of Persuasion, Cornell Law Review 73: 4–77, 1987. 59  Biemann, Logik und Kritik des Hypothesentestens. In Methodik der empirischen For­ schung, ed. Albers, Klapper, Konradt, Walter and Wolf. 205–220. Wiesbaden: Gabler 2009, 207.

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The evidence is expressed as x. Assume the decision-maker choses action ai. If the actual state of the world is wj, the costs of the decision are L(ai|wj). The conditional risk R of the choice of action ai given the evidence x is therefore c

R(ai|x) =

∑ L(a |w )Pr(w |x) i

(j=i)

j

j

The decision rule, also known as “Bayes decision rule”, posits that the action with the smallest conditional risk should be chosen. 60 Pr(w1|x)

Pr(w2|x)

expected costs

a1

L11

L12

Pr(w1|x) · L11 + Pr(w2|x) · L12

a2

L21

L22

Pr(w1|x) · L21 + Pr(w2|x) · L22

Table 2:  Decision matrix

When facing a choice between exactly two actions, a1 and a 2, the decision maker should, conditional on the evidence x, chose according to the following rule: decide

 aa

1 2

if R(a1|x) < R(a 2|x) else.

To simplify the notation in Table 2 and in the following, (Li|wj) is written as Lij. Table 2 shows that R(a1 |x) = Pr(w1|x) L11 + Pr(w2|x) L12 R(a 2|x) = Pr(w1|x) L21 + Pr(w2|x) L22 Therefore the decision maker should chose action a1 if Pr(w1|x) L21 + Pr(w2|x) L22 > Pr(w1|x) L11 + Pr(w2|x) L12 This can be re-written as Pr(w1|x) Pr(w2|x)

>

(L12–L22) (L21–L11)

60  Bourmistrov-Jüttner, Subjektive Wahrscheinlichkeitstheorie und rationale Entscheidungstheorie in Anwendung auf die Rechtspraxis. München 1987, 247.

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Since Pr(w2|x) = 1 – Pr(w1|x) the following holds61 Pr(w1|x) >

  (L12–L22) (L21–L11) + (L12–L22)

=

1 1 + L21–L11     L12–L22





The decision maker should, in other words, decide for a1 when her subjective posterior probability of w1 exceeds the right-hand side of the above inequality. Since it is traditionally assumed in the legal literature that correct decisions have no costs associated with them – it would be better to say that their cost is, for normative reasons, not to be considered – the above inequality can be simplified to the following, which is the form as it was originally used by Kaplan in his seminal 1968 paper:62 Pr(w1|x) >

L12 L21 + L12

=

1

 

1 + L21    L12

For many lawyers, the above inequation may appear intimidating, but it expresses a simple truth: you cannot decide under uncertainty without taking into account the consequences of both correct and incorrect decisions. Suppose the police receive a phone call informing them that a bomb has been planted at the high school on so-and-so street. It is Friday afternoon on a sunny summer’s day. The police must decide whether to evacuate the school. Table 3 shows that the decision can be formalized as a decision-making problem under uncertainty. The police must choose between two options (evacuate or not evacuate) the outcomes of which (missed classes, dead and injured, or uninterrupted classes) depend on two mutually exclusive states of the world (there is a functioning bomb present or not) which cannot be influenced by the decision maker and on which the decision maker has no statistical evidence (long-run averages). no bomb

bomb

no evacuation

undisturbed classes

dead and injured

evacuation

missed classes

missed classes

Table 3:  Outcome matrix for the decision problem “bomb threat”

61  Cullison, Probability Analysis of Judicial Fact-Finding. A Preliminary Outline of the Subjective Approach, University of Toledo Law Review 1: 538–598, 1969, 564 ff.; DeKay, The Difference between Blackstone-Like Error Ratios and Probabilistic Standards of Proof, Law & Social Inquiry 21(1): 95–132, 1996, 111. 62  Kaplan, Decision theory and the factfinding process, Stanford Law Review 20(6): 1065– 1092, 1968, 1072.

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The decision to evacuate brings a cost with it which is independent of the state of the world. It leads in any case to missed classes and therefore to a (at the margins) worse education of the students. The outcome of the decision not to evacuate on the other hand depends on the presence of a bomb. If no functioning bomb is present, no costs are associated with the decision not to evacuate. If a bomb is present and explodes there will be dead and injured students. Clearly, the outcome of the decision not to evacuate in case there is a bomb present is much worse than the outcome of the decision to evacuate irrespective of the state of the world. Considering the error costs of a wrong decision (no evacuation in presence of a bomb), the police should therefore decide to evacuate even when their belief that there actually is a bomb present is minimal (after all, it is a sunny Friday afternoon, and prank calls are a thing). We should therefore observe a great number of school evacuations after bomb threats which turn out to be false alarms – which is of course the case but does not indicate that the police are easily fooled, but rather that they act rationally and take into account the error costs of a wrong decision.

VII. Implications 1. Error Costs Matter It follows that the decision threshold is purely determined by the relative error costs (L21 and L12) associated with each outcome. In the context of a judge deciding for or against the party bearing the burden of proof in a civil proceeding, we must determine the relevant error costs. There are three potential determinants: (i) the judge; (ii) the parties; or the (iii) the legal system. Under the first approach, the judge chooses the decision threshold such as to maximize his or her own utility. This could entail, for example, minimizing his or her regret over a wrong decision.63 However, while this may be rational from the judge’s perspective – and explain certain decisions64 – civil procedural law is not designed to maximize judges’ utility. Normatively, the judge’s utility is irrelevant, and permitting judges to set the decision threshold to maximize their own utility would justify all kinds of biases. 65 63  Kaplan, Decision theory and the factfinding process, Stanford Law Review 20(6): 1065– 1092, 1968, 1078.; Lempert, Modeling Relevance, Michigan Law Review 75(5/6): 1021–1057, 1977, 1032. 64  See the examples of Kaplan, Decision theory and the factfinding process, Stanford Law Review 20(6): 1065–1092 1968, 1075, how minimizing regret over acquitting a person of ­colour may lead to more convictions of coloured people by white jurors; and Cullison, Probability Analysis of Judicial Fact-Finding. A Preliminary Outline of the Subjective Approach, University of Toledo Law Review 1: 538–598, 1969, 570, for the tendency to award higher damages against “deep pocketed” defendants. 65  Lempert, Modeling Relevance, Michigan Law Review 75(5/6): 1021–1057, 1977, 1032;

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Under the second approach, the disutility or costs of a wrong decision for each of the involved parties is considered. If a party is less able to bear the consequences of an incorrect decision, the decision threshold should be adjusted such that the judge finds more easily in favour of this party, and against the party better able to bear the burden of a wrong decision. Taking into account the “socio-economic risk-bearing capacity”66 of the involved parties when setting the standard of proof has been advocated namely by Maassen for Germany and Gräns for Sweden. 67 The suggestion has been met, rightfully in my opinion, with fierce criticism. 68 Besides the practical problem of assessing the “socio-economic risk-bearing capacity” of each party, neither substantive law nor procedural law provide for a preferred treatment of less resourceful parties with regards to the applicable standard of proof. Both substantive and procedural law provide certain benefits for classes of people considered more vulnerable, such as consumers or employees. 69 The legislator is evidently aware that some people find it more difficult to assert their rights and provides certain easements for defined classes of people. A lowering of the standard of proof, however, is not among the foreseen easements. This is not an oversight but rather prohibits adjusting the standard of proof based on the “socio-economic risk-bearing capacity” of the parties. Under the third approach, objective law determines the relevant error costs. If we accept that the goal of civil proceedings is the enforcement of substantive law (above, p.  21), this goal is fully achieved by both the enforcement of an existing claim and the non-enforcement of a non-existing claim. Since the consequences of an option that fully achieves a goal entail no cost70 , both outcomes have no cost. However, if a judgment enforces a non-existing claim because it accepted as true factual statements that were false, and if a judgment fails to enforce an existing claim because the judgment failed to establish the facts that Bourmistrov-Jüttner, Subjektive Wahrscheinlichkeitstheorie und rationale Entscheidungstheorie in Anwendung auf die Rechtspraxis. München 1987, 306. 66  Gräns, Das Risiko materiell fehlerhafter Urteile. (Diss. Uppsala 1995). Berlin: Duncker & Humblot 2002, 4243 f. 67  Maassen, Beweismaßprobleme im Schadenersatzprozess. Köln: Carl Heymanns Verlag KG 1975, 160 f.; Gräns, Das Risiko materiell fehlerhafter Urteile. (Diss. Uppsala 1995). B ­ erlin: Duncker & Humblot 2002, 244. 68  Greger, Beweis und Wahrscheinlichkeit. Das Beweiskriterium im Allgemeinen und bei den sogenannten Beweiserleichterungen. Köln: Heymann 1978, 109; Bender, Das Beweismaß. In Festschrift für Fritz Baur, ed. Grunsky, Stürner, Walter and Wolf. 247–271. Tübingen: Mohr Siebeck 1981, 255 f.; Prütting, Gegenwartsproble­me der Beweislast. Eine Untersuchung moderner Beweislasttheorien und ihrer Anwendung insbesondere im Arbeitsrecht. München: Beck, 1983, 78; Rüßmann, §  286. In Alternativkommentar zur ZPO, ed. Wassermann. Neuwied 1987, n.  19. 69 Such as guaranteed venues (see Kleinknecht, Die verbraucherschützenden Gerichts­ stände im deutschen und europäischen Zivilprozessrecht. Berlin: LIT. 2007, 5 ff. for Ger­many; Articles 32, 34 ZPO-CH for Switzerland) or lower or waived court fees, see VV 8210 Ge­ richts­kostengesetz for Germany, Article 114 lit.  c ZPO-CH for Switzerland. 70  Baron, Thinking and deciding. New York: Cambridge Univ. Press 2008, 233.

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gave rise to the claim, the goal of the civil proceeding is entirely missed. One cannot say that one error is graver than the other. The goal is simply not achieved at all in both cases. From the inequation on p.  30 follows that the decision rule that maximizes the goal of civil proceedings, is that the judge accepts as true the reconstruction of reality he or she considers more probably true than not. I like to call this the “preponderance of conviction” (überwiegende Überzeugung) standard,71 rather than preponderance of the evidence or balance of probabilities, to highlight that it is a subjective standard – relevant is the judge’s personal conviction – and not some “objective” standard, which has led to a lot of confusion when Kegel,72 Maassen,73 Motsch74 and Nell75 proposed a standard of “preponderance of probability” in the 1970s/80s. As already mentioned above (p.  22), it is undisputed that enforcement of substantive law is not the only goal of civil proceedings. Conflict resolution is another important goal,76 and procedural law knows a number of rules that limit the possibility to enforce substantive law in the interest of concluding the proceeding within a reasonable time at a reasonable cost, even if this leads to reconstructions of reality that do not correspond to the external world.77 However, for the decision theoretic analysis, this does not matter: the goal of conflict resolution is fully achieved by any final and enforceable judgment, whether the judgment is correct or not.78 The goal of conflict resolution therefore does not change the relative error costs of judgments erroneously enforcing a non-existing claim and judgments not enforcing an existing claim. It is important to note that this approach, while it makes use of a decision theoretic framework, is not an economic analysis of the standard of proof in

71  Schweizer, Beweiswürdigung und Beweismaß. Rationalität und Intuition. Tübingen: Mohr Siebeck 2015, 486. 72  Kegel, Der Individualanscheinsbeweis und die Verteilung der Beweislast nach überwie­ gender Wahrscheinlichkeit. In Das Unternehmen in der Rechtsordnung. Festgabe für Heinrich Kronstein aus Anlass seines 70. Geburtstages am 12. September 1967, ed. Biedenkopf, Coing and Mestmäcker. 321–344. Karlsruhe: C.F. Müller 1967. 73  Maassen, Beweismaßprobleme im Schadenersatzprozess. Köln: Carl Heymanns Verlag KG 1975. 74  Motsch, Vom rechtsgenügenden Beweis. Zur Entscheidung von Zivilsachen nach Wahrscheinlichkeit unter besonderer Berücksichtigung der Abstammungsfeststellung. Berlin, 1983. 75  Nell, Wahrscheinlichkeitsurteile in juristischen Entscheidungen. Berlin: Duncker & Humblot, 1983. 76 Instead of many Althammer, Streitgegenstand und Interesse. Eine zivilprozessuale Studie zum deutschen und europäischen Streitgegenstandsbegriff. Tübingen: Mohr Siebeck 2012, 243 ff. 77 Instead of many Henckel, Prozessrecht und materielles Recht. Göttingen: Schwartz 1970, 58. 78  Schilken, Der Zweck des Zivilprozesses und der kollektive Rechtsschutz. In Kollektiver Rechtsschutz im Zivilprozess. Hallesches Symposion zum Zivilverfahrensrecht am 6. Oktober 2007, ed. Meller-Hannich. 21–52. Baden-Baden: Nomos 2008, 28.

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civil matters.79 Economic analysis of law takes into account the incentives created by legal norms and examines whether the incentives lead to the maximization of efficiency.80 Economic analysis of standards of proof therefore does not consider whether a given standard best achieves the goal of the proceeding, but whether it maximizes efficiency. 81 A strictly economic analysis of standards of proof currently leads to the conclusion that the ideal decision threshold depends on factors that cannot be measured empirically and therefore does not allow quantifying a decision threshold. 82 My approach does not consider the efficiency of the proposed standard of proof. It assumes that substantive law provides an individual with an enforceable claim against another party based on value judgments that must be respected by procedural law. An optimal proceeding is one that best asserts these value judgments embodied by substantive law. Whether social welfare speaks for or against the enforcement of certain norms is irrelevant under this approach. The European Court of Justice, without invoking any economic or decision theoretic considerations, comes to very similar conclusions. Article 4 Product Liability Directive (Directive 85/374/EEC) provides that the injured person shall be required to prove the damage, the defect and the causal relationship between defect and damage. In a case where the plaintiff alleged that a hepatitis C vaccination caused his multiple sclerosis, the ECJ ruled that while the specific rules of evidence remain the domain of each Member State, national rules must not be such as to undermine either the apportionment of the burden of proof as provided for under Article 4 Product Liability Directive nor the effectiveness of the system of liability provided for under the Directive.83 This requires, on the one hand, that the evidentiary standard not be so high as to make it excessively difficult in many situations to establish producer liability, and on the other hand not to introduce unjustified presumptions that effectively reverse the allocation of the burden of proof.84 For the proof of a causal link be79  For an economic analysis of standards of proof see, e. g., Demougin and Fluet, Preponderance of evidence, European Economic Review 50(4): 963–976, 2006; Fluet, Liability rules under evidentiary uncertainty, International Review of Law and Economics 30(1): 1–9, 2010, Kaplow, Burden of Proof, Yale Law Journal 121(4): 738–859, 2012, 756 ff. 80 See Eidenmüller, Effizienz als Rechtsprinzip. Möglichkeiten und Grenzen der ökonomischen Analyse des Rechts. Tübingen: Mohr Siebeck 2005, 169 ff.; Schäfer and Ott, Lehrbuch der ökonomischen Analyse des Zivilrechts. Berlin: Springer 2005, 31 ff.; Towfigh, Das ökonomische Paradigma. In Ökonomische Methoden im Recht. Eine Einführung für Juristen, ed. Towfigh and Petersen. 23–34. Tübingen: Mohr Siebeck 2010, 31 f. 81  Wagner, Ökonomische Analyse der Rechtsmittel. In Ökonomische Analyse des Verfahrensrechts. Beiträge zum XI. Travemünder Symposium zur Ökonomischen Analyse des Rechts (26. bis 29. März 2008), ed. Reinhard Bork, Thomas Eger and Hans-Bernd Schäfer. 156–193. Tübingen: Mohr Siebeck 2009, 172 f. 82  Kaplow, Burden of Proof, Yale Law Journal 121(4): 738–859, 2012, 762 ff., 771. 83  ECJ, judgment of 21 June 2017, N. W and Others, C‑621/15, EU:C:2017:484, para.  31. 84  ECJ, judgment of 21 June 2017, N. W and Others, C‑621/15, EU:C:2017:484, paras.  31, 34.

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tween the defect of a product and the injury, this means that it is necessary, but also sufficient, that “a defect in the product appears to be the most plausible explanation for the occurrence of the damage”85. “The most plausible explanation” is more likely true than not – because an explanation is the most plausible, by logic, if it is the case with a probability of >50 %. If more than one factual allegation must be proven, the probability that all of the allegations are true cannot be higher than the probability of the least likely allegation (below, p.  36 f.). The ECJ therefore effectively endorses a “preponderance of conviction” standard. The decision theoretic framework provides an elegant explanation of the Common Law’s two different standards of proof for criminal and civil matters.86 Common Law employs the (high) standard of “proof beyond any reasonable doubt” in criminal cases, and the (lower) standard of “preponderance of the evidence” (“balance of probabilities” in English law) in civil cases.87 To reach a guilty verdict in a criminal case, the jury must be convinced beyond any reasonable doubt that the facts alleged by the prosecution are the case. 88 In a civil case, on the other hand, it is sufficient if the evidence produces a belief that what is sought to be proved is more likely true than not true.89 In other words, it is sufficient if the plaintiff’s allegations are more probably true than not.90 According to normative decision theory this makes perfect sense, assuming different costs of errors in criminal and civil matters: since wrongly convicting an innocent person is widely considered to be a graver mistake than erroneously 85  ECJ, judgment of 21 June 2017, N. W and Others, C‑621/15, EU:C:2017:484, para.  37, see also para.  41 (emphasis added). 86  In US law, a further intermediate standard of proof known as “clear and convincing evidence”, which is applicable in certain civil cases (e. g., civil fraud), is well-established, see, e. g., Addington vs. Texas, 441 U.S.  418 (1979), 422, 423. In the UK, the “intermediate standard” is purportedly laid to rest, but a “higher standard” applies where criminal conduct has to be proved in civil proceedings, McBride, Is the civil “higher standard of proof” a coherent concept?, Law, Probability & Risk 2009, 323–351. 87 See Addington vs. Texas, 441 U.S.  418 (1979), 422, 423; for English law In Re H & Others (minors) UKHL 16, AC 563 (1995), sect. 76; Wright, Proving Facts: Belief versus Probability, in Koziol/Steininger (eds.), Tort and Insurance Law, Vienna 2009, 79–105, 80. 88  Jury instructions according to the Ninth Circuit Model Criminal Jury Instructions, 2003 edition, §  3.5 – Reasonable Doubt – Defined. Sheppard, The metamorphoses of reason­ able doubt: How changes in the burden of proof have weakened the presumption of innocence. Notre Dame Law Review 2003. 78(4): 1165–1250, shows the development from “moral certainty” to “reasonable doubt” to “articulate doubt”, which, according to him, explains the current practice in criminal law better. 89  O’Malley, Grenig and Lee (eds.), Federal jury practice and instructions. Eagan, MN: Westlaw 2001, §  166.51. 90  llinois Supreme Court Committee on Pattern Jury Instructions in Civil Cases (eds.), Illinois Pattern Jury Instructions: Civil, §  21.01 (“more probably true than not true”), available from www.state.il.us/court/CircuitCourt/CivilJuryInstructions/21.00.pdf (last visited 1 February 2018); Sand, Rakoff, Reiss, Loughlin, Allen and Siffert (eds.), Modern Federal Jury Instructions – Civil Volumes. Los Angeles: LexisNexis 2017, Vol.  4, §  73.01, Instruction 73–2 (“by a preponderance of the evidence” means “more likely true than not true”).

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acquitting a guilty person, the expected error costs are minimized if the standard of proof in criminal cases is well above 50 % (whether it can be quantified at all is highly controversial,91 but nobody would dispute that a civil jury may find for the plaintiff under circumstances that would not permit a criminal jury to convict the accused). On the other hand, it is a commonly held assumption that, in civil cases, the disutilities of erroneously finding for or against the plaintiff are similar,92 which means the error-cost minimizing decision thres­hold is ≥50 %. As one commentator put it, “civil cases are the paradigm for symmetrical error costs.”93 2. Relevant Is The Whole, Not Its Parts If the judge may accept a contested factual statement as true if he or she believes it to be more likely true than not, there arises a problem if the claim requires more than one contested factual statement to be true. Assuming the statements are independent, if each is true with a subjective probability of 50 %, the probability that both are true is merely 25 %.94 Even if the other statement is true with a probability of 95 %, the overall probability falls below 50 % if one statement is only barely more probable than not, and the total probability can never be higher than the least likely statement. However, the judge should still find in favour of the party bearing the burden of proof because the standard of proof is met for each statement, although it is unlikely that all facts that give rise to the claim exist. While many relevant factual statements will not be independent in practice,95 this does not solve the theoretical objection, and as the number of contested factual statements increases, even allowing partial dependence quickly leads to an overall probability that all relevant facts are the case that lies below 50 %. In the US literature, this problem has been widely discussed under the term “conjunction para91 See the references cited in Tillers and Gottfried, Case comment--United States v. Copeland, 369 F. Supp.  2d 275 (E.D.N.Y. 2005): A Collateral Attack on the Legal Maxim That Proof Beyond A Reasonable Doubt Is Unquantifiable?, Law, Probability & Risk 5(2): 135– 157, 2007. 92  In re Winship 397 U.S.  358, 371 (1970) (Harlan J. Concurring); Ball, The moment of truth: Probability theory and standards of proof, Vanderbilt Law Review 14: 807–830, 1960, 817; Kaye, Apples and Oranges: Confidence Coefficients and the Burden of Persuasion, ­Cornell Law Review 73: 4–77, 1987, 72; Lee, Pleading and Proof. The Economics of Legal Burdens, Brigham Young University Law Review (1): 1–34, 1997, 25; Posner, An Economic Approach to the Law of Evidence, Stanford Law Review 51(6): 1477–1546, 1999, 1504; ­Redmayne 1999, 171; Clermont and Sherwin, A comparative View of Standards of Proof, American Journal of Comparative Law 50: 243–276, 2002, 268; Stein, Foundations of evidence law, Oxford, 2005, 148; Zamir and Ritov, (fn.  140), 189; but see Tyree (fn.  92), 93 f. 93  Lee, Pleading and Proof. The Economics of Legal Burdens, Brigham Young University Law Review (1): 1–34, 1997, 25. 94  Borck, Zur Glaubhaftmachung des Unterlassungsanspruchs, Wettbewerbsrecht und Praxis: 776–778, 1978, seems to be the only German author that touches upon this problem (in the context or preliminary measures, where a lower standard of “plausibility” [Glaubhaft­ machung] applies). 95  Cohen, The probable and the provable. Oxford: Clarendon Press 1977, 61.

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dox”. It has led Cohen to develop an “inductive” probability theory (“Baconian probabilities”) that does not conform to the Kolmogorow axioms of probability,96 and Allen to develop his holistic “relative plausibility theory”.97 The conjunction paradox highlights that requiring that the entirety of the factual statements supporting the claim is more likely true than not is a much stricter standard than requiring that each individual statement is more likely true than not.98 While German doctrine is not always clear whether the standard of proof refers to the entirety of the relevant factual statements or each individual statement, the majority posits that the standard of proof applies to each individual statement.99 Given the rather clear wording of §  286 German Civil Procedure Act (ZPO-DE), this seems entirely correct.100 Applying even a high standard of proof of 90 % posterior subjective probability to each individual relevant factual statement quickly leads to an overall probability that all the statements are true below 50 % (see Figure 1; with a standard of 90 %, if more than seven independent elements are required, the total probability falls below 50 %). The decision theoretic analysis, on the other hand, leads to a requirement of a posterior subjective probability (degree of conviction) of 50 % that all the relevant facts are the case. Because if even one element constitutive for the claim does not exist, the claim should be denied. One could therefore dismiss the decision theoretic approach because it does not conform to German law. I posit that the different reference point may rather explain why German doctrine so far has been so reluctant to embrace “preponderance of conviction”. When referring to individual statements, it is entirely rational to demand a higher standard of proof. Just to be clear, applying the standard of proof to the entirety of the contested factual statements versus to each individual statement does not render the discussion over the relevant decision threshold meaningless. There are situations where the different standards lead to different outcomes, most notably in cases where only one element of the claim is contested. Under the “preponderance of the conviction” standard the claim is to be accepted if the sole contested statement is more likely true than not, while it is to be dismissed under the traditional “full conviction” standard because the required degree of conviction has not been met. 96 

Cohen, The probable and the provable. Oxford: Clarendon Press 1977, 116 ff. Allen, A Reconceptualization of Civil Trials, Boston University Law Review 66: 401– 437, 1986, 405 f.; Allen, The Nature of Juridical Proof, Cardozo Law Review 13: 373–444, 1991, 374 sq.; Allen, Factual Ambiguity and a Theory of Evidence, Northwestern University Law Review 88(2): 604–640, 1994, 605 f. 98  Dawid, The Difficulty About Conjunction, Journal of the Royal Statistical Society. ­Series D (The Statistician) 36(2/3): 91–97, 1987, 92. 99  See the references cited in Schweizer, Beweiswürdigung und Beweismaß. Rationalität und Intuition. Tübingen: Mohr Siebeck 2015, 496 ff. 100  The corresponding norm in the Swiss Civil Procedural Act, Article 157 ZPO-CH, is inconclusive. 97 

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100 %

95 % probability per requirement

combined probability

90 % probability per requirement 80 % probability per requirement

50 %

0 %

1

  2

 3

 4

 5

   6

  7

 8

 9

10

11  12  13  14

number of independent requirements Figure 1:  Combined probability for joint occurrence of independent events

VIII. Non-Implications 1. Statistical Evidence A preponderance of conviction standard of proof does not in any way depend on objective probabilities or empirical data on long-run frequencies. The evaluation of the evidence (Beweiswürdigung) remains subjective – even if one subscribes to the postulate that inductive reasoning should conform to the axioms of probability theory. Subjective probability theory merely imposes constraints on partial beliefs that can coherently be held at the same time, but it does not require everyone to hold the same partial beliefs.101 It provides rationality, not objectivity.102 That “statistical” evidence, understood as evidence of long-run frequencies of events in a reference class, is often not available in cases that must be adjudicated by civil courts is therefore not an argument against a preponderance of the evidence standard. 101  Salmon, The foundations of scientific inference. Pittsburgh: Univ. of Pittsburgh Press 1967, 81 f.; Bourmistrov-Jüttner, Subjektive Wahrscheinlichkeitstheorie und rationale Ent­ scheidungstheorie in Anwendung auf die Rechtspraxis. München 1987, 68; Weber, fn.  20, 151 ff.; Hájek, The reference class problem is your problem too, Synthese 156(3): 563–585, 2007, 576 f. 102  Nell, Wahrscheinlichkeitsurteile in juristischen Entscheidungen. Berlin: Duncker & Hum­blot 1983, 101; Schulz, Sachverhaltsfeststellung und Beweistheorie. Elemente einer Theo­ ­r ie strafprozessualer Sachverhaltsfeststellung. Köln, München [u.a.]: Heymann 1992, 296.

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2. Numerical Assessment Of Evidence A preponderance of conviction standard does not require a numerical assessment of the evidence or the expression of the decision threshold as a real number. It is just as easy (or difficult) to judge that the factual statements supporting the claim are more likely true than not than it is to be “fully convinced” that they are true. Neither requires the expression of the threshold as a number. Whether it is possible or even useful to assign numbers to standards of proof is highly controversial.103 It is certainly useful in theoretical analyses, such as the one applied in this contribution. This should not be confused with requiring courts or legislators to express the required decision threshold in a number. Not only is it not required that the standard of proof is expressed in a real number for the preponderance of conviction standard to work, it is also not required that a numerical assessment of the evidence is carried out. Formal evaluation of evidence, for example following the logic of subjective probability theory, may aid to avoid common biases and mistakes that are shown to be prevalent in forensic evidence assessment.104 These benefits exist independently of the required decision threshold. The criticism levelled against formal methods of forensic evidence evaluation misses the target of the preponderance of conviction standard of proof in civil matters. A quick look at Common Law shows that a lower standard of proof in civil matters can be implemented without expressing the decision threshold in a real number and without requiring the use of formal methods of evidence evaluation. Common Law uses, as explained above (p.  35), a lower standard of proof in civil matters. The US Supreme Court also accepts that error costs determine the decision threshold.105 It has never, however, expressed standards of proof in numerical form106 and it certainly does not require the fact finder to use formal methods of evidence evaluation.107 103 See Tillers and Gottfried, Case comment – United States v. Copeland, 369 F. Supp.  2d 275 (E.D.N.Y. 2005): A Collateral Attack on the Legal Maxim That Proof Beyond A Reasonable Doubt Is Unquantifiable?, Law, Probability & Risk 5(2): 135–157, 2007. 104  Fenton and Neil, Avoiding Probabilistic Reasoning Fallacies in Legal Practice using Bayesian Networks, Australian Journal of Legal Philosohpy 36: 114–151, 2011, 128 ff.; R ­ oberts and Aitken, The Logic of Forensic Proof: Inferential Reasoning in Criminal Evidence and Forensic Science. Guidance for Judges, Lawyers, Forensic Scientists and Expert Witnesses. London 2013, 126; Schweizer, Comparing holistic and atomistic evaluation of evidence, Law, Probability & Risk 13(1): 65–89, 2014; Mühlemann, 24. Februar 2014. L’appréciation de la preuve pénale guidée par les réseaux bayésiens, Jusletter: 1–10, para.  46. 105  In re Winship 397 U.S.  358, 371 (1970) (Harlan J. Concurring). 106  Tillers and Gottfried, Case comment – United States v. Copeland, 369 F. Supp.  2d 275 (E.D.N.Y. 2005): A Collateral Attack on the Legal Maxim That Proof Beyond A Reasonable Doubt Is Unquantifiable?, Law, Probability & Risk 5(2): 135–157, 2007. 107  In a legal system where contested factual allegations are adjudicated by juries of lay persons, this is evidently impossible.

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IX. Arguments Against A Preponderance Of Conviction Standard Of Proof Several arguments have been raised against a preponderance of conviction standard of proof in civil matters. Many of them seem to have psychological roots – loss aversion, status quo bias and omission bias all seemingly speak for a higher standard of proof. I have argued elsewhere that the visceral rejection any suggestions to lower the standard of proof in civil matters has received in Germany may be attributable to such psychological causes.108 Here, I only briefly address some of the main arguments put forward against a lower decision threshold in civil cases. 1. Positive German Law Does Not Prohibit Lowering The Standard Of Proof Firstly, positive law does not prohibit, neither in Germany nor in Switzerland, a lower decision threshold. The law speaks of the judge’s “conviction”, not “full conviction”, and is indeterminate as to the degree of conviction required (cf. §  286 ZPO-DE, Article 157 ZPO-CH). It has long been proposed in Germany that the required degree of conviction was flexible.109 Subjective probability theory was developed in the 1930s,110 and decision theory was formalized in the 1940s.111 The German legislator, when enacting the Civil Procedural Code in 1879 simply could not have expressed any opinion on the required degree of conviction, as even the vocabulary to talk about the underlying issues had not existed. A regular standard of proof of “preponderance of conviction” also does not lead to incoherencies within procedural law. German and Swiss procedural law prescribes a lower standard of proof for certain matters, the so-called standard of “Glaubhaftmachung” (rendering something plausible).112 It is argued that the normally applicable standard (Regelbeweismass) must therefore be higher: since a factual allegation is plausible under the ruling doctrine when it is more probably true than not, the standard of full proof must necessarily be higher.113 108  Schweizer, Loss Aversion, Omission Bias and the Civil Standard of Proof. In European perspectives on behavioural law and economics, ed. Klaus Mathis. 125–145. Cham, Switzerland: Springer 2015. 109  Gottwald, Schadenszurechnung und Schadensschätzung. Zum Ermessen des Richters im Schadensrecht und im Schadenersatzprozess. München: Beck 1979, 200 ff. 110  Finetti, Fondamenti logici del ragionamento probabilistico, Bollettina della Unione Matematica Italiana 9: 258–261, 1930; Ramsey, Truth and Probability. 1999 electronic edition. In The Foundations of Mathematics and other Logical Essays, ed. Richard B. Braithwaite. 156–198. London: Kegan, Paul, Trench, Trubner & Co. 1931. 111  Neumann and Morgenstern, Theory of games and economic behavior. Princeton: Prince­ton Univ. Press. 1947. 112  See, e. g., Scherer, Das Beweismaß bei der Glaubhaftmachung. Köln, Berlin: Heymann 1996. 113  Walter, Freie Beweiswürdigung. Tübingen: Mohr Siebeck 1979, 174; Prütting, Gegen-

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However, the standard of “Glaubhaftmachung” is elegantly explained in a decision theoretic framework as a flexible standard that is set according to the typical error costs.114 In certain cases, this may lead to the same preponderance of conviction standard as for full proof, for example when injunctive relief is preliminarily imposed.115 In other cases, when the costs of erroneously not allowing a request are much higher than the costs of falsely granting it, the decision threshold may be lower than 50 %.116 This seemingly bizarre result – how can the court accept a claim although it believes it likely not to be true? – follows from the decision theoretic analysis. Grounds for recusal of a judge, for example, need to be made plausible rather than strictly proven (cf. (§§  42, 44 ZPODE; Article 49 ZPO-CH). There are good reasons for a recusal request to be granted even if the court believes the alleged facts to be the case with a probability of less than 50 %. If the proceedings are erroneously conducted with the partial judge in charge, the parties are deprived of their constitutional right to an independent and impartial judge. If, on the other hand, the judge is recused although in fact he is not partial, the proceedings are merely delayed. While delays are not without costs – “justice delayed is justice denied” – the error costs of wrongly dismissing a recusal request are clearly higher. The standard of proof for allegations of partiality should therefore be lower than 50 %. The law indeed requires a lower decision threshold by imposing the standard of “Glaubhaft­ machung”, but it does so under the preponderance of conviction standard, too. 2. Allocation of Burden Of Proof Does Not Consider Error Costs It has been argued that the allocation of the burden of proof already considers the error costs of a wrong decision.117 However, this is incorrect. There have been many attempts at identifying an overarching theme in the assignment of wartsprobleme der Beweislast. Eine Untersuchung moderner Beweislasttheorien und ihrer Anwendung insbesondere im Arbeitsrecht. München: Beck 1983, 79; Laumen, §  4 Die Beweiswürdigung und ihr Verhältnis zur Beweislast. In Handbuch der Beweislast. Grundlagen, ed. Baumgärtel, Laumen and Prütting. 80–133. Köln, München: Carl Heymanns Verlag KG 2009, para.  66. 114  Schweizer, Das Beweismass der Glaubhaftmachung, Schweizerische Zeitschrift für Zivilprozess- und Zwangsvollstreckungsrecht: 1–15, 2015. 115  Scherer, Das Beweismaß bei der Glaubhaftmachung. Köln, Berlin: Heymann 1996, 85 ff. 116  E. g. for preservation measures, DFT 137 III 563 cons.  3.3. 117  Greger, Beweis und Wahrscheinlichkeit. Das Beweiskriterium im Allgemeinen und bei den sogenannten Beweiserleichterungen. Köln: Heymann, 1978, 107; Meier, Zum Problem der Beweislastverteilung im schweizerischen Recht, Zeitschrift für schweizerisches Recht (Neue Fassung) 106: 705–742, 1987, 724 f.; Schwab, Das Beweismaß im Zivilprozessrecht. In Festschrift für Hans W. Fasching zum 65. Geburtstag, ed. Holzhammer, Bohm and Jelinek. 451– 462. Wien: Manz 1988, 455; Fuchs, Das Beweismaß im Arzthaftungs­prozess. Frankfurt am Main: Peter Lang 2005, 81; Berger-Steiner, Das Beweismass im Privat­recht. Eine dogmatische Untersuchung mit Erkenntniswert für die Praxis und die Rechtsfigur der Wahrscheinlichkeitshaftung. Bern: Stämpfli 2008, para.  5.129.

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the burden of proof in German law.118 It has been suggested that the burden of proof should be assigned according to judicial discretion,119 to the a priori probability of a factual allegation,120 the sphere of control,121 to the attacker,122 to the ease of adducing the evidence,123 to efficiency in the sense of minimizing the cost of proceedings124 or reliance interests.125 Only Kummer explicitly argues that the burden of proof should be assigned to the party that can more easily bear the consequences of a wrong decision.126 It is largely accepted today that the assignment of the burden of proof according to current positive German law (de lege lata) cannot be reduced to any single explanation.127 The best we have is 118 See the summaries by Spiro 1975, 880 ff.; Prütting 1983, 179 ff.; Meier 1987, 724 ff.; Ahrens, Die Verteilung der Beweislast. In Karlsruher Forum 2008: Beweislast, ed. Egon Lorenz. 7–53. Karlsruhe: Verlag Versicherungswirtschaft 2008, 29 ff. 119  Gautschi, Beweislast und Beweiswürdigung bei freiem richterlichem Ermessen. Zürich, 1913, 10 sqq., 18; Huguenin-Dumittan, Behauptungslast, Substantiierungspflicht und Beweislast. Zürich: Schulthess 1980, 125 ff., 137 ff., 199 ff. 120  Kasparek, Die Lehre von der Beweislast als Lehre von der Urteilsfindung bei ungeklärtem Tatbestande. Breslau: Priebatsch 1937, 73; Peters, Die Beweislast, MDR 3(1): 66–70, 1949, 66; Kegel, Der Individualanscheinsbeweis und die Verteilung der Beweislast nach überwiegender Wahrscheinlichkeit. In Das Unternehmen in der Rechtsordnung. Festgabe für Heinrich Kronstein aus Anlass seines 70. Geburtstages am 12. September 1967, ed. Biedenkopf, Coing and Mestmäcker. 321–344. Karlsruhe: C.F. Müller 1967, 335; Wahrendorf, Die Prinzipien der Beweislast im Haftungsrecht. Köln: Heymann 1976, 74 ff., 81 ff., 86 ff., 105, 107, 112. 121  Prölss, Beweiserleichterungen im Schadenersatzprozess. Karlsruhe, 1966, 65 ff. 122  Leipold, fn.  134, 48 ff.; Prütting, Gegenwartsprobleme der Beweislast. Eine Untersuchung moderner Beweislasttheorien und ihrer Anwendung insbesondere im Arbeitsrecht. München: Beck 1983, 263 f. 123  Meier, Zum Problem der Beweislastverteilung im schweizerischen Recht, Zeitschrift für schweizerisches Recht (Neue Fassung) 106: 705–742, 1987, 736 ff.; Ahrens, Die Verteilung der Beweislast. In Karlsruher Forum 2008: Beweislast, ed. Lorenz. 7–53. Karls­r uhe: Verlag Versicherungswirtschaft 2008, 31. 124  Friedl, Beweislastverteilung unter Berücksichtigung des Effizienzkriteriums. Frankfurt am Main: Peter Lang 2003, 74 ff.; critical Prütting, Die non-liquet Situation und die Normen­ theorie. In Handbuch der Beweislast. Grundlagen, ed. Baumgärtel, Laumen and Prütting. 135–158. Köln, München: Carl Heymanns Verlag KG 2009, para.  41. 125  Reinecke, Die Beweislastverteilung im bürgerlichen Recht und im Arbeitsrecht als rechts­politische Regelungsaufgabe. Berlin: Duncker & Humblot 1976, 68 f.; Prütting, Ge­gen­ wartsprobleme der Beweislast. Eine Untersuchung moderner Beweislasttheorien und ihrer Anwendung insbesondere im Arbeitsrecht. München: Beck 1983, 261; Ahrens, Die Verteilung der Beweislast. In Karlsruher Forum 2008: Beweislast, ed. Lorenz. 7–53. Karlsruhe: Verlag Versicherungswirtschaft 2008, 37. 126  Kummer, Art.  8 . In Berner Kommentar zum schweizerischen Zivilgesetzbuch. Einleitung Artikel 1–10 ZGB, ed. Meier-Hayoz. Bern: Stämpfli 1966 n 28, 115 ff. 124; followed by Leipold, Beweislastregeln und gesetzliche Vermutungen insbesondere bei Verweisungen zwischen verschiedenen Rechtsgebieten. Berlin: Duncker & Humblot 1966, 49, 132; Reinecke, Die Beweislastverteilung im bürgerlichen Recht und im Arbeitsrecht als rechtspolitische Regelungsaufgabe. Berlin: Duncker & Humblot 1976, 53; Berger-Steiner, Das Beweismass im Privatrecht. Eine dogmatische Untersuchung mit Erkenntniswert für die Praxis und die Rechts­figur der Wahrscheinlichkeitshaftung. Bern: Stämpfli 2008, para.  5.129. 127  Prütting, Gegenwartsprobleme der Beweislast. Eine Untersuchung moderner Beweislasttheorien und ihrer Anwendung insbesondere im Arbeitsrecht. München: Beck 1983, 264;

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still the “Satzbaulehre”128 originating from Rosenberg’s seminal work129 which posits that the burden of proof is assigned according to the grammatical structure of the relevant substantive norm.130 It is also clear that the assignment of the burden of proof is often rather arbitrary as the legislator, when enacting substantive law, does not consider the assignment of the burden of proof resulting from the sentence structure.131 Rules on the burden of proof are also not made superfluous under a preponderance of conviction standard.132 Rules on the production of evidence (subjektive Beweislast) are certainly still needed. But rules on who loses when the judge cannot make up his or her mind on whether the decision threshold has been reached are also needed. Just as it is possible that the judge cannot say whether he or she is fully convinced it is also possible that he or she cannot tell whether a claim is more likely true or not. Such cases may be rarer under a preponderance of conviction standard.133 But given the arbitrariness of the assignment of the burden of proof, this is not a bad thing. 3. Error Costs Are Truly Equal A number of authors argue that the error costs of falsely admitting a non-existent claim and falsely denying an existing claim are not equal. Most of these authors assign a heightened value to the status quo ante filing of the complaint, which was in and of itself worth preserving. A mistaken change of the current state of the world was, so the argument goes, always worse than mistakenly not changing the state of the world.134 I consider these arguments psychologically Ahrens, Die Verteilung der Beweislast. In Karlsruher Forum 2008: Beweislast, ed. Egon Lorenz. 7–53. Karlsruhe: Verlag Versicherungswirtschaft 2008, 29 sq.; Prütting, Die non-­ liquet Situation und die Normentheorie. In Handbuch der Beweislast. Grundlagen, ed. Baumgärtel, Laumen and Prütting. 135–158. Köln, München: Carl Heymanns Verlag KG 2009, para.  42. 128  Rosenberg/Schwab/Gottwald, Zivilprozessrecht. München: Beck 2010, §  102 n.  8 . 129  Rosenberg, Die Beweislast auf der Grundlage des bürgerlichen Gesetzbuchs und der Zivilprozessordnung. München: Beck 1965 (originally published 1900). 130  Instead of many Ahrens, Die Verteilung der Beweislast. In Karlsruher Forum 2008: Beweislast, ed. Egon Lorenz. 7–53. Karlsruhe: Verlag Versicherungswirtschaft 2008, 16 f. 131  Ahrens, Die Verteilung der Beweislast. In Karlsruher Forum 2008: Beweislast, ed. Egon Lorenz. 7–53. Karlsruhe: Verlag Versicherungswirtschaft 2008, 23. 132 Against Prütting (fn.   122), 85; Leipold, Beweismass und Beweislast im Zivilprozess, Berlin 1985, 8; Fuchs (fn.  117), 82; Berger-Steiner, Das Beweismass im Privatrecht. Eine dogmatische Untersuchung mit Erkenntniswert für die Praxis und die Rechtsfigur der Wahrscheinlichkeitshaftung. Bern: Stämpfli 2008, para.  5.132; Grunsky and Jacoby, Zivilprozessrecht. München: Luchterhand 2014, para.  549. 133 Instead of many Berger-Steiner, Das Beweismass im Privatrecht. Eine dogmatische Untersuchung mit Erkenntniswert für die Praxis und die Rechtsfigur der Wahrscheinlichkeitshaftung. Bern: Stämpfli 2008, para.  5.126. 134  Kummer, Art.  8 . In Berner Kommentar zum schweizerischen Zivilgesetzbuch. Einleitung Artikel 1–10 ZGB, ed. Meier-Hayoz. Bern: Stämpfli 1996 N 28; Leipold, Beweislastregeln und gesetzliche Vermutungen insbesondere bei Verweisungen zwischen verschie­denen

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plausible, but normatively unconvincing. They are normatively unconvincing because there are no good reasons why the status quo ante filing of the complaint is worth preserving rather than the state of the world before the damage occurred, or more generally speaking, before the events that gave rise to the right came took place.135 Objective law, by granting a person a right, has already decided that a change of the state of the world is desired. Greger, for example, argues that tort law assigns the burden of proof to the victim because denying a justified tort claim would only realize the general idea that everybody bears his or her own damages (casus sentit dominum).136 However, substantive law posits that when another party caused the damage illegally and culpably, it should bear the damage, not the aggrieved party. If according to the conviction of the judge it is more likely than not that another party illegally and culpably caused the damage, the general rule that each person bears his or her own damages cannot be used to justify denying the claim. The general rule only applies when the circumstances that give raise to a damage claim are not the case. If it is likely that they are the case, the rule should not apply. Related to the argument that the state of the world before the filing of the complaint deserves special protection are arguments that posit that a mistaken enforcement of a claim gravely injures the defendant.137 That may well be the case – but it does not follow that mistakenly denying the claim does not equally much harm to the deserving plaintiff. Psychologically, losses loom indeed larger than gains,138 and granting a claim generally means, from the defendant’s point of view, imposing a loss on the defendant.139 Hence, it is psychologically plausiRechtsgebieten. Berlin: Duncker & Humblot 1966, 48; Greger, Beweis und Wahrschein­ lichkeit. Das Beweiskriterium im Allgemeinen und bei den sogenannten Beweiserleichterungen. Köln: Heymann 1978, 108 f.; Prütting, Gegenwartsprobleme der Beweislast. Eine Untersuchung moderner Beweislasttheorien und ihrer Anwendung insbesondere im Arbeitsrecht. München: Beck 1983, 78 f.; Laumen, §  4 Die Beweiswürdigung und ihr Verhältnis zur Beweislast. In Handbuch der Beweislast. Grundlagen, ed. Baumgärtel, Laumen and Prütting. 80– 133. Köln, München: Carl Heymanns Verlag KG 2009, para  65; critical Meier, Zum Problem der Beweislastverteilung im schweizerischen Recht, Zeitschrift für schweizerisches Recht (Neue Fassung) 106: 705–742, 1987, 740. 135  Redmayne, Standards of Proof in Civil Litigation, Modern Law Review 62(2): 167–195, 1999, 174 (“The objection that disturbing the status quo carries extra disutility ignores the fact that if the plaintiff deserves to win, the status quo has already been disturbed”). 136  Greger, Beweis und Wahrscheinlichkeit. Das Beweiskriterium im Allgemeinen und bei den sogenannten Beweiserleichterungen. Köln: Heymann 1978, 108. 137  Baumgärtel, Beweislastpraxis im Privatrecht. Die Schwierigkeiten der Beweislastverteilung und die Möglichkeiten ihrer Überwindung. Köln: Heymann 1996, para.  74. 138  Kahneman and Tversky, Prospect Theory: An Analysis of Decision under Risk, Eco­ nometrica 47(2): 263–292, 1979, 279. 139  Korobkin and Guthrie, Psychological Barriers to Litigation Settlement. An Experimental Approach, Michigan Law Review 93: 107–192, 1994, 133 ff.; Babcock, Farber, Fobian and Shafir, Forming Beliefs About Adjudicated Outcomes: Perceptions of Risk and Reservation Values, International Review of Law and Economics 15(3): 289–303, 1995, 296 f.; ­R achlinski, Gains, Losses and the Psychology of Litigation, Southern California Law Re-

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ble that mistakenly enforcing a claim (i. e., imposing a loss) does more harm than mistakenly granting the claim does good.140 However, the argument again rests on the special status of the state of the world before the filing of the complaint, rather than the state of the world before the events that give raise to the claim happened. Let’s take the example of a car accident. It is disputed whether the defendant is liable for the damage to the plaintiff’s car. If the claim is granted, the plaintiff experiences a win and the defendant a loss compared to the situation before the judgment. However, let’s consider the situation before the accident happened: the accident imposes a loss on the future plaintiff (his or her car is worth less). If the future defendant is in fact liable but the liability claim is not enforced, at the same moment a corresponding gain accrues to the future defendant. I cannot see a normatively convincing argument why one reference point should get special protection. A further argument for different error costs in civil cases is that being found liable in a civil action entails a reputational damage that being found not deserving as a plaintiff in a civil action does not. There is some empirical evidence for an unequal allocation of the reputational risk. Both members of the court (judges and law clerks) in Switzerland as well as a representative sample of the general public in Germany consider the reputational damage from being found mistakenly liable somewhat higher than the reputational damage from being found mistakenly undeserving. However, the difference in the compensation judged adequate for each type of reputational damage is not statistically significant.141 At best, these empirical results – certainly to be taken with a grain of salt – may justify a decision threshold slightly above 50 %, but far from the “above 90 %”142 required by the ruling doctrine in Germany and Switzerland.

view: 113–185, 1996, 155 ff.; Gilliland and Dunn, Decision making in civil disputes: The effects of legal role, frame, and perceived chance of winning, Judgment and Decision Making 3(7): 512–527, 2008, 517 ff.; Zamir and Ritov, Revisiting the Debate over Attorneys’ Contingent Fees. A Behavioral Analysis, Journal of Legal Studies 39(1): 245–288, 2010, 269 f. 140  Zamir, Loss Aversion and the Law, Vanderbilt Law Review 65(3): 829–894, 2012, 887 sq.; Zamir and Ritov, Revisiting the Debate over Attorneys’ Contingent Fees. A Behavioral Analysis, Journal of Legal Studies 39(1): 245–288, 2010, 272. 141  Schweizer, Beweiswürdigung und Beweismaß. Rationalität und Intuition. Tübingen: Mohr Siebeck, 2015, 515 ff., 576 f., reports the method and results of the study in more detail. 142  Greger, Beweis und Wahrscheinlichkeit. Das Beweiskriterium im Allgemeinen und bei den sogenannten Beweiserleichterungen. Köln: Heymann 1978, 110; Bender, Das Beweismaß. In Festschrift für Fritz Baur, ed. Grunsky, Stürner, Walter and Wolf. 247–271. Tübingen: Mohr Siebeck 1981, 258; Fasching, Lehrbuch des österreichischen Zivilprozessrechts. Lehrund Handbuch für Studium und Praxis. Wien: Manz 1990, para.  815; Berger-Steiner, Das Beweismass im Privatrecht. Eine dogmatische Untersuchung mit Erkenntniswert für die Praxis und die Rechtsfigur der Wahrscheinlichkeitshaftung. Bern: Stämpfli 2008, para.  6.81; Kadner Graziano, “Alles oder nichts” oder anteilige Haftung bei Verursachungszweifeln? Zur Haftung für perte d’unce chance/loss of chance und eine Alternative, Zeitschrift für Europäisches Recht 19: 171–200, 2011, 189; Paulus, Zivilprozessrecht. Erkenntnisverfahren,

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4. Other Arguments A plethora of other arguments are put forward against lowering the standard of proof in civil matters. They can only be summarily addressed here. Walter argues that the goal of fact finding should be the establishment of the truth and finding for the party more likely in the right than not would not achieve this goal.143 This argument overlooks that not finding for a deserving party also misses the goal of establishing the truth. The actual result of imposing a very high decision threshold is that many justified claims are denied, which squarely contradicts the goal of civil proceedings (above, p.  32). It is argued that easily proven facts require a higher standard of proof, 144 while the standard should be lowered in cases where evidence is generally hard to obtain.145 E. g., a plaintiff who claims that he gave a loan to the defendant and demands repayment should be held to a high standard of proof, because it would have been easy for him to require the borrower to sign a receipt for the loan.146 However, the ease or difficulty of providing evidence does not influence the decision threshold but is rather an element of evidence evaluation: a plaintiff that Zwangsvollstreckung und Europäisches Zivilprozessrecht. Berlin [u.a.]: Springer 2013, para.  431. 143  Walter, Freie Beweiswürdigung. Tübingen: Mohr Siebeck 1979, 161  f.; similarly ­Schilken, Zivilprozessrecht. München: Franz Vahlen 2010, para.  478. 144  Guldener, Beweiswürdigung und Beweislast nach schweizerischem Zivilprozessrecht. Zürich: Schulthess 1955, 7; Bender, Das Beweismaß. In Festschrift für Fritz Baur, ed. Grunsky, Stürner, Walter and Wolf. 247–271. Tübingen: Mohr Siebeck 1981, 256 ff.; Nell, Wahrscheinlichkeitsurteile in juristischen Entscheidungen. B ­ erlin: Duncker & Humblot 1983, 213 f.; Klami, Gräns, and Sorvettula, Law and truth. A theory of evidence. Helsinki: The Finnish Society of Sciences and Letters; Finnish Academy of Science and Letters 2000, 215 sq.; Einmahl, Zeu­ genirrtum und Beweismaß im Zivilprozess. Eine Fallstudie am Beispiel des Verkehrsunfallprozesses, NJW: 469–475.2001, 474 f.; Gräns, Das Risiko materiell fehlerhafter Urteile. (Diss. Uppsala 1995). Berlin: Duncker & Humblot 2002, 240 ff.; Kaufmann, Be­w iesen? Gedanken zu Beweislast – Beweismass – Beweiswürdigung, AJP: 1199–1208, 2003, 1207. 145  Prütting, Gegenwartsprobleme der Beweislast. Eine Untersuchung moderner Beweislasttheorien und ihrer Anwendung insbesondere im Arbeitsrecht. München: Beck 1983, 92; Hohl, Le degré de la preuve. In Beiträge zum schweizerischen und internationalen Zivilprozeßrecht. Festschrift für Oscar Vogel, ed. Schwander and Stoffel. 125–159. Freiburg/ Schweiz: Univ.-Verl. 1991, 149; Hohl, Le degré de la preuve dans les procès au fond. In Der Beweis im Zivilprozess. La preuve dans le proces civil, ed. Leuenberger. 128–138. Bern: Stämpfli 2000, 137; Leuenberger, Glaubhaftmachen. In Der Beweis im Zivilprozess. La preuve dans le proces civil, ed. Leuenberger. 108–126. Bern: Stämpfli 2000, 120; Kaufmann, Bewiesen? Gedanken zu Beweislast – Beweismass – Beweiswürdigung, AJP: 1199–1208 2003, 1206 f.; different Berger-Steiner, Das Beweismass im Privat­recht. Eine dogmatische Untersuchung mit Erkenntniswert für die Praxis und die Rechtsfigur der Wahrscheinlichkeitshaftung. Bern: Stämpfli 2008, para.  6 .48. 146  Bender, Das Beweismaß. In Festschrift für Fritz Baur, ed. Grunsky, Stürner, Walter and Wolf. 247–271. Tübingen: Mohr Siebeck 1981, 253; Einmahl, Zeugenirrtum und Beweismaß im Zivilprozess. Eine Fallstudie am Beispiel des Verkehrsunfallprozesses, NJW: 469– 475, 2001, 474 f.; Kaufmann, Bewiesen? Gedanken zu Beweislast – Beweismass – Beweiswürdigung, AJP: 1199–1208, 2003, 1207.

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does not produce easily obtainable evidence in support of his or her claim is likely undeserving.147 The non-availability of generally available evidence speaks against the truth of an allegation. On the other hand, the lack of evidence where evidence is rarely available – such as for the theft of an item covered by insurance – does not or only minimally weigh against the truth of the allegation. Some fear that lowering the standard of proof would lead to a flood of complaints.148 Firstly, it is not entirely clear why this is undesirable if the complaints are likely justified. Should not the civil justice system enforce justified claims? If it has not done so until now, maybe it is time it does. Secondly, while lowering the standard of proof makes it easier for the party bearing the burden the proof to prevail,149 this does not result in a higher number of cases that go to judgment.150 It merely means that more cases are settled in favour of plaintiffs, while under a high standard of proof, even deserving plaintiffs may not extract a settlement because the defendant knows that the plaintiff will likely not be able to convince the judge to the high degree required. A lower decision threshold will lead to an increase in insurance premiums of potentially liable parties,151 but this is merely the result of assigning the damage more often to the party that should bear the harm according to substantive law, an entirely desirable outcome. It is alleged that lowering the standard of proof would favour the plaintiff,152 who had more time to prepare the complaint than the defendant had to respond, and who could choose among potential defendants and seek out a “weak” target.153 Firstly, whilst it is true that the plaintiff has more time to prepare the suit, he or she bears the burden of production,154 also under a preponderance of con147 

DFT 130 III 321 cons.  3.2. Prütting, Gegenwartsprobleme der Beweislast. Eine Untersuchung moderner Beweislasttheorien und ihrer Anwendung insbesondere im Arbeitsrecht. München: Beck 1983, 79; Laumen, §  4 Die Beweiswürdigung und ihr Verhältnis zur Beweislast. In Handbuch der Beweislast. Grundlagen, ed. Baumgärtel, Laumen and Prütting. 80–133. Köln, München: Carl Heymanns Verlag KG 2009, para.  6 4. 149  Engel, Preponderance of the Evidence versus Intime Conviction, Vermont Law Review, 33: 435–467, 2009, 461 ff., show that different standard of proofs lead indeed to different outcomes (which is psychologically not evident). 150  Priest and Klein, The Selection of Disputes for Litigation, Journal of Legal Studies 13(1): 1–55, 1984, 17 f. 151  Walter, Freie Beweiswürdigung. Tübingen: Mohr Siebeck1979, 181. 152  Bender, Das Beweismaß. In Festschrift für Fritz Baur, ed. Grunsky, Stürner, Walter and Wolf. 247–271. Tübingen: Mohr Siebeck 1981, 257; Prütting, Gegenwartsprobleme der Beweislast. Eine Untersuchung moderner Beweislasttheo­r ien und ihrer Anwendung insbesondere im Arbeitsrecht. München: Beck 1983, 79; Fuchs 2005, fn.  117, 82; Laumen, §  4 Die Beweiswürdigung und ihr Verhältnis zur Beweislast. In Handbuch der Beweislast. Grundlagen, ed. Baumgärtel, Laumen and Prütting. 80–133. Köln, München: Carl Heymanns Verlag KG 2009, Rz. 64. 153  Fuchs, Das Beweismaß im Arzthaftungsprozess. Frankfurt am Main: Peter Lang 2005, 82. 154  It is well noted that the burden of production is not assigned according to a party’s procedural role, but often the plaintiff will bear the burden of proof. 148 

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viction standard, and therefore requires more time. Secondly, under both German and Swiss civil law, defendants have ample time to defend themselves against unjustified claims. They are hardly rushed. Thirdly, I find the argument that the plaintiff can choose among several potential defendants far from reality. Except in very rare cases, the plaintiff has exactly one party to file suit against, such as his or her contracting partner, spouse, or likely tortfeasor. Lastly and most importantly, the sentiment that a preponderance of conviction standard favours the party bearing the burden of proof seems to be driven by the idea that this decision threshold is easily met. But under the plausible assumption that the defendant will allege the most likely set of facts not supporting the claim, if a judge finds the allegations supporting the claim more likely true than not, this is the set of allegations more likely to be true than any other set of allegations. It is more likely true than the second most likely set of allegations (that advanced by defendant). It is a misconception that a preponderance of conviction standard is easily met. It is advanced that lowering the standard of proof would lead to a loss of the court’s interest in fact finding (“Erlahmung des Aufklärungseifers”).155 Since this is an empirical claim, those advancing it bear the burden of producing the empirical evidence in its support. Those familiar with the effort spent on fact finding in US and UK civil proceedings, where a “preponderance of the evidence” or “balance of probabilities” standard applies, find it rather difficult to believe that a lower standard of proof in civil matters leads to a loss of interest in fact finding. Some allege that a preponderance of conviction standard must ultimately lead to the acceptance of the “perte d’une chance” doctrine,156 the assignment of damages according to the probability of their occurrence, which is generally considered incompatible with positive German and Swiss law.157 As Kaye shows, 155  Döhring, Die Erforschung des Sachverhalts im Prozess. Berlin: Duncker & Humblot 1964, 447; Meier, Das Beweismass – ein aktuelles Problem des schweizerischen Zivilprozessrechts, Basler Juristische Mitteilungen (2): 57–78, 1989, 73; Similarly Greger, Beweis und Wahrscheinlichkeit. Das Beweiskriterium im Allgemeinen und bei den sogenannten Beweiserleichterungen. Köln: Heymann 1978, 114 f. 156  Greger, Beweis und Wahrscheinlichkeit. Das Beweiskriterium im Allgemeinen und bei den sogenannten Beweiserleichterungen. Köln: Heymann 1978, 109; Prütting, Gegenwartsprobleme der Beweislast. Eine Untersuchung moderner Beweislasttheorien und ihrer Anwendung insbesondere im Arbeitsrecht. München: Beck 1983, 79; Bruske, Beweiswürdigung und Beweislast bei Aufklärungspflichtverletzungen im Bankrecht. Berlin: Duncker & Humblot 1994, 36; Fuchs, Das Beweismaß im Arzthaftungsprozess. Frankfurt am Main: Peter Lang 2005, 82. 157  Müller-Stoy, Schadensersatz für verlorene Chancen. Eine rechtsvergleichende Untersuchung. Freiburg im Br. 1973, 153 ff.; Fleischer, Schadenersatz für verlorene Chancen im Vertrags- und Deliktsrecht, Juristenzeitung (15): 766–775, 1999, 772; Taupitz and Jones, Das Alles oder Nichts-Prinzip im Arzthaftungsrecht – Quotelung. In “Waffen-Gleichheit”. Das Recht in der Arzthaftung; [Referate und Diskussionen des XII. Kölner Symposiums der Arbeitsgemeinschaft Rechtsanwälte im Medizinrecht e.V.], ed. Ratajczak. 67–83. Berlin, Heidel-

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a preponderance of the conviction standard actually leads to more efficient outcomes than the perte d’une chance doctrine.158 That “perte d’une chance” doctrine and a “balance of probabilities” standard of proof do not go hand in glove is also evidenced by the judgment of the Canadian Supreme Court in Lafferière vs. Lawson, where the Court rejects the (French) doctrine of perte d’une chance for Canadian law arguing, inter alia, that the Canadian “balance of probabilities” standard of proof renders the perte d’une chance doctrine superfluous.159 Clermont and Sherwin conclude that Civil Law countries weigh the perceived legitimacy of the justice system higher than the avoidance of error,160 which has led to an acrimonious response by Taruffo.161 There are indeed some statements in German and Swiss doctrine that indicate that its authors fear a loss of legitimacy of the (civil) justice system if the standard of proof is lowered.162 Empirical support for this fear is scant. A comparison of the confidence citizens of Switzerland (CH), Germany (DE), the United Kingdom (UK) and the USA have in their respective justice system shows no systematic difference between Germany and Switzerland on the one hand and the United Kingdom and the United States on the other hand.163 If a lower standard of proof led to a loss of legitimacy of the justice system, one should observe lower levels of confidence in the courts in the UK and the US. In fact, the US scores higher than Germany, while the UK and Germany are essentially the same.164 berg [u.a.]: Springer, 2002, 80 sqq.; for Switzerland DFT 133 III 462 cons.  4.2; but see High Court Zurich, ZR 88 (1989) No. 66, 209 ff. = SJZ 1989, 119 f. 158  Kaye, 1982. The Limits of the Preponderance of the Evidence Standard: Justifiable Nak­ed Statistical Evidence and Multiple Causation, Law & Social Inquiry 1982(2): 487–516 1982, 497 ff. 159  Lafferière vs. Lawson, 1 S.C.R. (1991), 541, 602. 160  Clermont and Sherwin (2002), 269 ff. 161  Taruffo, Rethinking the Standards of Proof, American Journal of Comparative Law 51: 659–677, 2003; finding middle ground Engel, Preponderance of the Evidence versus intime conviction. A Behavioral Perspective on a Conflict between American and Continental European Law, Vermont Law Review 33: 435–467, 2009. 162  Walter, Freie Beweiswürdigung. Tübingen: Mohr Siebeck 1979, 182; Habscheid, Beweislast und Beweismass, ein kontinentaleuropäisch-angelsächsischer Rechtsvergleich. In Festschrift für Gottfried Baumgärtel zum 70. Geburtstag, ed. Prütting. 105–119. Köln: Carl Heymanns Verlag KG 1990, 118; Hohl, Le degré de la preuve. In Beiträge zum schweizerischen und internationalen Zivilprozeßrecht. Festschrift für Oscar Vogel, ed. Schwander and Stoffel. 125–159, Freiburg/Schweiz: Univ.-Verl. 1991, 155; Berger-­Steiner, Das Beweismass im Privatrecht. Eine dogmatische Untersuchung mit Erkenntniswert für die Praxis und die Rechtsfigur der Wahrscheinlichkeitshaftung. Bern: Stämpfli 2008, para.  5.131; Kraatz, Der Einfluss der Erfahrung auf die tatrichterliche Sachverhaltsfeststellung. Zum “strafprozessualen” Anscheinsbeweis. Berlin: de Gruyter 2011, 85; Kotsoglou, How to become an epistemic engineer – what shifts when we change the standard of proof?, Law, Probability & Risk 12(3–4): 275–298, 2013, 286. 163  Data from Wave 5 of the World Value Survey, available from www.worldvaluessurvey. org. Switzerland and the UK have not participated in Wave 6 (2010–2014) so that the relevant comparison cannot be made based on the newer data. 164  The figures for the courts are: CH 76.90 %; DE 57.50 %; UK 60.20 %; USA 57.40 %.

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100% 100 % courts courts

 police police

service civil service

80% 80 % 60% 60 % 40 % 40%

20 % 20%

CH CH

DE DE

UK UK

USA USA

Figure 2:  Percentages of respondents having “a great deal” or “quite a lot” of confidence in the respective organizations (from World Value Survey 2005).

X. Conclusion Effective enforcement of subjective rights granted by substantive law requires an effective civil procedure. The traditional standard of proof of “full conviction” applied in Germany and Switzerland, which demands a conviction bordering on certainty,165 unfairly favours potential defendants over plaintiffs. Many justified claims will never be brought to court because plaintiffs know that they cannot meet the impossibly high standard of proof. Case law has tried to alleviate the most blatantly unfair consequences of the high standard by changing the allocation of the burden of proof and in some cases lowering the standard of proof.166 This has led to a “proliferation of exceptions”167, a “chaotic fragmentation of German evidence law”168 . A more simple and elegant solution to the unfairness of a high standard of proof is lowering the standard to a “preponderance of conviction”, i. e., finding in favour of the party more likely deserving to win. Such a standard is normatively appropriate and compatible with positive German law. It may even be required by European law, since a too high standard of proof may render (substantive) European law ineffective.

165 

BGHZ 53, 245; DFT 130 III 321 cons.  3.2. of many Bender, Das Beweismaß. In Festschrift für Fritz Baur, ed. Grunsky, Stürner, Walter and Wolf. 247–271. Tübingen: Mohr Siebeck, 1981, 259. 167  Bender, Das Beweismaß. In Festschrift für Fritz Baur, ed. Grunsky, Stürner, Walter and Wolf. 247–271. Tübingen: Mohr Siebeck 1981, 259 (“Wildwuchs”). 168  Maassen, Beweismaßprobleme im Schadenersatzprozess. Köln: Carl Heymanns Verlag KG 1975, 127 (“chaotische Zersplitterung”). 166  Instead

Probability as an Element of Standard of Proof Christoph A. Kern

I. Introduction An international conference on standard of proof is a novelty. Actually, discussing the standard of proof is still a relatively young phenomenon, and in-depth monographic research has been conducted in German language only during the last six decades1 – some of the protagonists are present in this volume. It is therefore a good idea to go beyond mere country reports and also focus on fundamentals. One fundamental question turns around probability and proof. Are these two completely distinct from each other or is there a relationship between them – in particular, is probability somehow an element, a prerequisite of proof or are they even identical? Taking into account how fundamental these questions are, it does not come as a surprise that two contributions to this volume bear the words “probability” or “probable” in their title, and that probability plays a role in many, if not most, of the contributions. It is the purpose of this contribution to go to the fundamentals – or at least to what I think are the fundamentals – of the topic. In doing so, I would like to take a rather analytical approach. I will first explain what I understand by “proof” for the purpose of this presentation. We will then turn to “probability”, and I will propose a distinction of two types of probability which seems particularly interesting for our purpose. I will call these two types “objective” probability and “subjective” probability, knowing that others use these two terms differently. With this distinction in mind, we will analyse the different 1  Maassen, Beweismaßprobleme im Schadensersatzprozeß, Köln etc.: Carl Heymanns 1975; Greger, Beweis und Wahrscheinlichkeit, Köln etc.: Carl Heymanns 1978; Gottwald, Schadenszurechnung und Schadensschätzung, München: C.H. Beck 1979; Walter, Freie Beweiswürdigung, Tübingen: Mohr Siebeck 1979; Prütting, Gegenwartsprobleme der Beweislast, München: C.H. Beck 1983; Huber, Das Beweismaß im Zivilprozeß, Köln etc.: Carl Heymanns 1983; Nell, Wahrscheinlichkeitsurteile in juristischen Entscheidungen, Berlin: Dun­ cker & Humblot 1983; Motsch, Vom rechtsgenügenden Beweis, Berlin: Duncker & Humblot 1983; Leipold, Beweismaß und Beweislast im Zivilprozeß, Berlin/New York: de Gruyter 1985; Schulz, Sachverhaltsfeststellung und Beweistheorie, Köln etc.: Carl Heymanns 1992; Weber, Der Kausalitätsbeweis im Zivilprozeß, Tübingen: Mohr Siebeck 1997; Deppenkemper, Beweiswürdigung als Mittel prozessualer Wahrheitserkenntnis, Göttingen: V&R unipress 2004; Brinkmann, Das Beweismaß im Zivilprozess aus rechtsvergleichender Sicht, Köln etc.: Carl Heymanns 2005; Schweizer, Beweiswürdigung und Beweismaß. Rationalität und Intuition, Tübingen: Mohr Siebeck 2015.

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situations in which these two forms of probability meet with proof before dealing with the intricate question of a minimum requirement. A last part concludes.

II. Proof 1. Definition and Approaches As a general matter, “proof” is the prerequisite for the judge to base her reasoning on a certain issue. This may be – and typically is – an issue of fact, as the judge normally reacts2 to events which happened in the past3 but are recalled and described differently by the parties. However, it may also be an issue of law if the applicable procedural law treats issues of fact and law equally so that there is a need to prove the law.4 In both situations, the judge who has to decide the case needs a standard in order to know on which facts or law she should base her reasoning – the standard of proof. As a matter of theory – and of history, as we will see at once – there are two ways of providing the judge with the necessary standard. One is abstract and general in the sense that it does not depend on the individual judge and case, but is an exercise which can be replicated in any case and by any person; the other is concrete and individualistic in the sense that it depends on the case at issue and requires from the judge an intrapersonal evaluation.5 The abstract approach was the approach chosen in the Middle Ages under the influence of Roman-Canonical law, an approach which was refined to its extreme in Spain and Germany. 6 Under this approach, abstract rules decided on the weight and rank of the different means of proof. Normally, a full proof was necessary; it required two witnesses that were sufficiently independent from the party bearing the burden of proof (plena probatio). If the party was not able to provide these two witnesses, but only one of them (semiplena probatio), she was 2  But see Fuller/Winston, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353 (1978). 3  Brinkmann (note  1), at 5: reconstruction of a historic reality. 4  For England, see Nelson v. Bridport, (1845) 8 Beav. 527: “Knowledge of foreign law is not to be imputed to an English judge”, foreign law is a question of fact and must be proven by the evidence of experts in the foreign law; The King of Spain v. Machado, (1827) 4 Russ. 225, 239: the onus of proving lies upon party who pleads the difference; Cheshire, Private International Law, Oxford: Clarendon Press 1935, p.  69: courts apply a presumption that foreign law is identical to English law. 5 Comp. Stürner, Beweisregeln und freie Beweiswürdigung im Zivilprozess der Europäischen Staaten, in Lobinger (ed.), Festschrift für Eduard Picker, Tübingen: Mohr Siebeck 2010, p.  809, 816 (only using abstract and concrete). 6  Stürner, Prozessrecht und Rechtskulturen, in Gilles/Pfeiffer (eds.), Prozeßrecht und Rechts­kulturen. Eröffnungsvortrag und Deutsche Landesberichte zur Weltkonferenz für Prozeßrecht in Mexico City, Mexiko, 2003, Baden-Baden: Nomos 2004, p.  31, 43.

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allowed to supplement the witness testimony with her oath.7 The rules on the weight and rank of the means of proof and other technicalities of the law of evidence filled whole books. What is interesting for us is that the judge only had to mechanically apply all these rules. Correctly applying these rules was, of course, intellectually challenging, but in theory did not depend on the personality of the judge. In other words, whoever applied all the rules in a correct way would have come to the same result. The effect of these rules was exacerbated by the fact that the judge who took the evidence was not identical with the judge – typically, a panel of judges – who decided the case. The latter based their decision exclusively on the written reports of the factfinding phase.8 The purpose of this approach was to shield the decisionmaker from all undue influence and to turn factfinding into a purely rational, egalitarian exercise.9 It deserves to be noted that the English rules on the admissibility of evidence can be understood and explained from the same background, and it seems that they have in fact their roots in the Roman-Canonical procedure.10 The individualistic approach, in turn, leaves the evaluation of the evidence to the personality of the factfinder. It is characterised by the lack of pre-established rules on the weight and rank of the different means of proof. Of course, there are some guidelines, but these are not mandatory and leave room for the particularities of the individual case. For example, the witness statement of the husband is not excluded per se, but of course looked at very critically, in particular if there are no additional facts which support the statement. This approach could be found in classical Roman law and returned to the European continent with the ideas of the Enlightenment and the French Revolution. In practice, it first influenced criminal procedure, but was then successful also in civil procedure, in France with the Code of 1806,11 in Germany only as late as 1877.12 Under this approach, the evaluation of the evidence is “free”. This means that the judge is responsible for evaluating the evidence; she must decide on whether she sees an issue as proven according to her conscience.

7  For Germany, see Endemann, Die Folgen freier Beweisprüfung im Civilprozesse, AcP 41 (1858), 289, 302–303; Renaud, Das richterliche Moderationsrecht hinsichtlich der Zahl der vorgeschlagenen Zeugen im Civilprozesse, AcP 42 (1859), 301; see also Lauk, Zur Lehre von dem zusammengesetzten Beweis im Civilprozeß, Archiv für praktische Rechtswissenschaft aus dem Gebiete des Civilrechts, des Civilprozesses und des Criminalrechts 3 (1855), 337 et seq. 8  Endemann, Die Beweislehre des Civilprocesses, Heidelberg: von Bangel und Schmitt 1860, p.  31, 43–44. 9  Stürner (note  6), at 40. 10  Stürner (note  6), at 40–41. 11  (Ancien) Code de procédure civile, Law of 14 April 1806, entry into force on 1 January 1807. 12  Civilprozeßordnung of 30 January 1877, RGBl. 1877, p.  83, entry into force on 1 October 1879.

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2. Proof and Probability Even before having analysed “probability” in detail, we can already determine the place of probability in these two approaches. Under the abstract approach, the place of probability is in the abstract rules themselves: The rules on the weight and rank of evidence should, and historically did at least to a certain degree, reflect in a general manner the reliability of the different means of evidence. Reliability, in turn, means nothing else than the probability that the statement for which a particular means of proof stands is correct. The probability in this case is, of course, a very rough and general one; it is not the judge, but the legislature, who decides in an abstract way, that is, beforehand, what is probable and what is not. If, however, probability only plays a role for the making of rules on proof and not for their application in an individual case, if, in other words, probability is not relevant for the judge, but only for the legislature, there is no place for probability in the standard of proof. This means that the abstract approach can be excluded from our further analysis. Things are different for the individualistic approach. Here, it is the judge who has to decide according to her intrapersonal findings. Probability may guide the judge, may even be sufficient, and it may, on the appeals level, be an aspect under which the decision of the lower court may be scrutinized. Thus, probability may have something to do with the judge’s determination of a factual or legal issue in an individual case, i. e., with the standard of proof. Therefore, we shall continue our analysis on the basis of the individualistic approach. But before we do so, let us first have a deeper look at what is, or can be, “probability”.

III. Probability 1. “Objective” Probability In mathematics and natural sciences, probability designates merely the likelihood that a certain event occurs.13 It can be measured and expressed in numbers between zero and one, with zero saying that there is virtually no likelihood that the event occurs and one saying that the occurrence of the event is sure – the so-called “sure event”. Probability in this sense is forward-looking:14 It says 13 See, e. g., “probability”, in Webster’s Revised Unabridged Dictionary, 1913, p.   1140, avail­ able at https://web.archive.org/web/20150428142545/http://machaut.uchicago.edu/?re source=Webster%27s&word=probability&use1913=on (last visited 12 April 2019). 14  Brinkmann (note  1), at 23. Note that probability in this sense is forward-looking even in cases in which the probability of a relationship between two situations is the object of research, as in theory, it must be possible to predict on the basis of one of the situations the probability of all other situations that are related. An example is a genetic paternity test. Knowing the genetic disposition of either father or child, it is, in theory, possible to determine all genetic dispositions and their probabilities.

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something about the likelihood that a certain event will or will not occur in the future. Outside mathematical models, i. e., in the real world, probabilities of zero or one do not exist. This means that probability will always differ from reality; it is merely a prediction. Despite its forward-looking character, probability may be, and often is, based on historical facts; yet it uses them as an input. Of course, it is also possible to determine how probable a certain event was at a certain point of time in the past. However, probability never says something about whether this event actually occurred unless the probability is zero or one. Probability in this sense is not related to the person who wants to determine it unless the input, i. e., the facts on which the calculation is based, are personal. Therefore, this form of probability may be called “objective” probability.15 2. “Subjective” Probability However, the term “probability” is, as we all know, not only used in mathematics and natural sciences, but also in everyday parlance. In this context, probability designates an appearance of reality or truth.16 To put it otherwise: This type of probability is not merely forward-looking. To the contrary, it also covers events which happen, or situations which exist, but are unknown to the speaker simultaneously with the dictum of probability, or events which happened or situations which existed in the past. Insofar as it is backward-looking or looking at contemporaneous events or situations, this type of probability is typically used as a basis for ascertaining the truth. The truth, the reality, belong to the real world which is incredibly complicated and cannot be reconstructed. Therefore, the input for measuring the probability and the weight attributed to the various factors is, to a certain degree, always a matter of an individual selection of the person who tries to determine the probability, and the outcome is a more or less precise degree of persuasion of the speaker. Thus, this probability is always the result of a personal evaluation. Therefore, it may be called “subjective” probability.17 As we have identified two types of probability,18 it makes sense to use this division in our further analysis. Let us therefore first have a look at the relationship between “objective” probability and proof and then discuss more in detail 15 

Brinkmann (note  1), at 23 et seq. See again Webster’s (note  13). 17  Brinkmann (note  1), at 23, 38–39. 18  Parts of the literature make a further distinction between “subjective” probability and “inductive” or “epistemic” probability. The latter is said not to focus on the degree of persuasion itself, but the subjective weight of the reasons on which the persuasion is based. See, e. g., Brinkmann (note  1), at 24. In philosophy, numerous types of probability are distinguished, and the definitions and terminology are manifold and not fully in line with the distinction of “objective” and “subjective” probability used here; for a first overview, see the PhilPapers section on Philosophy of Probability, available at https://philpapers.org/browse/philosophy-­ of-probability (last visited 12 April 2019). 16 

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the relationship between “subjective” probability and proof. In both cases, probability may be relevant under three aspects: as an object of proof, as the standard of proof and as an element of proof.

IV. “Objective” Probability and Proof 1. “Objective” Probability as the Object of Proof “Objective” probability, i. e., forward-looking probability in the mathematical-scientific sense, can be the object of proof. An example is when a court, in proceedings concerning the admission of new drugs or new forms of medical treatments, has to determine the probability that the drug or medical treatment has negative side effects. Here, the probability of negative side effects is one aspect in the risk-benefit analysis,19 but it is not the only issue: other issues may be the medical condition of the patients, the seriousness of the consequences which the drug or treatment seeks to avoid and the availability of alternatives. It is, no doubt, difficult for a court to fulfil this task, and often the court will need experts. But this task does not raise methodological questions. 2. “Objective” Probability as Standard of Proof “Objective” probability may also be the applicable standard of proof. This is the case when the judge does not need to determine whether an event actually occurred, but may limit herself to determine a certain probability. Cases of this type are scarce, as it is very rare that “objective” probability in a case which may go to court can be determined exclusively on the basis of scientific findings readily available.20 An example where “objective” probability has de facto evolved into a standard of proof is the determination of paternity using genetic testing. In everyday practice, judges do not grant much weight to the parties’ allegations or other means of proof once genetic testing brought about the usual probability of more than 99.9999 %.21 Thus, the scientific probability of parentage de facto substituted actual proof of parentage, and some authors have gone so far as to ask for the determination of an “absolute” probability beyond which no reasonable doubts exist anymore.22 19  For the EU, see Recital 14 Regulation (EC) No 726/2004; for Germany, §  25(2) No 5 Arzneimittelgesetz. 20  According to Brinkmann (note  1), at 24, it is even impossible to use “objective” probability as a standard of proof in the legal context. 21 OLG Stuttgart FamRZ 2011, 1879; Nickel, in Herberger/Martinek/Rüßmann u.a., juris­PK-BGB, 8th ed. 2017, §  1600d mn.  29. But see BGHZ 168, 79, 83 = NJW 2006, 3416, 3417 mn.  16 (emphasizing that genetic testing only provides statistical information and does not render superfluous the evaluation of other facts). 22  Leipold, Einige Bemerkungen zur Vermutung der nichtehelichen Vaterschaft (§  1600a

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3. “Objective” Probability as an Element of Proof Of course, most interesting for us – as the title of this presentation shows – is “objective” probability as an element of proof. Remember, first, that we defined proof as the line from which on a judge may base her decision on a certain issue subject to proof – which means that we need not discuss here issues of the standard of proof. Probability as an element of proof then means that the judge makes her decision in some way or another dependent on a certain probability. Here, we are interested in “objective” probability, in other words, the judge uses “objective” scientific information. Actually, this is nothing particular at all. To the contrary, it is hard to imagine how “objective” probability could not be relevant for the judge to come to her determination. The judge will as a matter of course assume that the apple falls downward and he who alleges the opposite will have a hard time to convince her. Similarly, if an expert gave a percentage for the “objective” probability of a certain event, the judge will use this information. Beyond the fact that any judge would as a matter of course take “objective” probability into account, this is also required by law.23 This becomes visible in the context of superior review. If a judgment does not respect the “laws” of natural science and recognised empirical knowledge, it can be lifted on appeal,24 and even the lack of discussion of such scientific or empirical knowledge in the grounds of the judgment may be a basis for an appeal. It therefore seems quite settled that the judge cannot easily depart from cases of high “objective” probability. Although nobody gives a clear number, it seems fair to say that as soon as there is “objective” probability of more than 50 %, the judge may only decide against this probability if she can provide good reasons, and the higher the level of “objective” probability is, the more important must these reasons be. The most difficult question in this context is whether the “objective” probability must have reached a certain measure, say more than 80 %, 90 % or 95 %, for the judge to be convinced. The question of minimum measures of probability is normally discussed without distinguishing between “objective” and “subjective” probability. We will therefore dedicate a separate section to it, bearing in mind that there might be a difference between “objective” and “subjective” probability. But prior to this, we must turn to the relationship between “subjective” probability and proof.

BGB), FamRZ 1973, 65, 72; this approach was rejected by the German Federal Supreme Court in BGHZ 61, 165, 172 = NJW 1973, 1924, 1926. 23  Stürner (note  5), at 816. 24  See, e. g., BGHSt 6, 70, 70, 72 f. (absolute validity of generally recognised laws of nature also for the judicial determination of facts); BGH, NZM 2017, 521, 523 mn.  24.

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V. “Subjective” Probability and Proof 1. “Subjective” Probability as the Object of Proof In discussing “subjective” probability and proof, let us again distinguish three types of relationships between probability and proof and start with probability as an object of proof. At first glance, there are few situations in which the question of how probably someone believed a certain event was must be proven. However, “subjective” probability can be the object of proof if the court must determine whether someone acted intentionally: The more probable a certain event was in the eyes of the defendant, the more justified is it to assume that he or she acted at least with dolus eventualis,25 although probability alone may not be sufficient.26 2. “Subjective” Probability as Standard of Proof In order to discuss “subjective” probability as standard of proof, we must change the perspective: While “subjective” probability is an object of proof insofar as the parties or third persons are concerned, “subjective” probability can be the standard of proof only if the subject is the judge herself. Indeed, “subjective” probability can be, and frequently is, the applicable standard of proof.27 This is the case, first and foremost, in those common law countries which define the standard of proof in civil matters as the “balance of probabilities” or as the “preponderance of the evidence”, a standard which is generally said to be lower than the standard “beyond reasonable doubt” which these jurisdictions apply in criminal law.28 It also plays a role in sports law where the applicable standard of proof with respect to doping is “comfortable satisfaction”.29 “Comfortable satisfaction” is defined as being more than the balance of probabilities, but less than the standard beyond reasonable doubt.30 Finally, it is the standard which applies in many civil law countries with respect to interim measures.31 The plausibility required is normally described as “more probable than not”.32 25 

See BGH, StV 2014, 88, 89 mn.  25. BGHSt 46, 30, 35 = NJW 2000, 2364, 2366; BGH, NStZ 1999, 507, 508. 27  More nuanced Brinkmann (note  1), at 29: The “degree of conviction” becomes part of the standard of proof via probability. 28  Brinkmann (note  1), at 27, quoting Carleton Kemp Allen, The Presumption of Innocence, in Legal Duties and Other Essays in Jurisprudence, Oxford: Clarendon Press 1931, p.  253, 286 (actually, p.  287) who utters, however, some scepticism. 29 Art.   3.1 sentence 2 WADA-Code. See Duttig, Comfortably satisfied?, Baden-Baden 2019, passim. 30  Art.  3.1 sentence 3 WADA-Code. 31  For Germany, §§  920(2), 294 ZPO. 32  See, for England, Miller v. Minister of Pensions, [1947] 2 All E.R. 372 (K.B.) at 374 (Lord 26 

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3. “Subjective” Probability as an Element of Proof If proof is the line from when on the judge may base her decision on a certain issue, what does ‘“subjective” probability as an element of proof’ then mean? This question is intricate. First of all, it is clear that if we discuss “subjective” probability as an element of proof, we deal with a situation in which “subjective” probability is not identical with the standard of proof – otherwise, this section would deal with the same as the preceding section, the section on ‘“subjective” probability as the standard of proof’. Moreover, if “subjective” probability is only an element of proof, it is also clear that we deal with a situation in which the standard of proof somehow encompasses probability. In other words, we are interested in a situation in which the standard of proof requires more than a mere evaluation of probabilities. From this purely semantic starting point we can deduce two questions: First, are there other standards of proof than standards based on subjective probability, and second, can these other standards of proof be construed in a sense that they embrace probability? From a technical point of view, the answer to these questions is simple: There are indeed other standards of proof than standards directly or indirectly based on probability: the “beyond reasonable doubt”-standard which governs, inter alia, U.S. criminal law, and the “intime conviction”-standard which is the regular standard of proof in most civil law countries, requiring that the judge be “fully convinced”. These other standards could be construed as embracing – but going beyond – probability. However, this answer is only technical, as it merely shows that lawyers use terms to describe the standard of proof which do not refer directly or indirectly to probability. It alone does not prove that these standards of proof are no probability standards. One could perfectly hold that all these standards are, at a closer look, standards requiring a particularly high probability.33 Vice versa, these standards could also be construed as being something categorically differ-

Denning); for Germany BGH, BeckRS 107304 mn.  10; NJW-RR 2007, 776, 777 mn.  11; OLG München, GRUR 2017, 630, 632 mn.  25. 33  In this sense goes the position according to which the judge must be convinced of a high probability, not of truth: Musielak, Das Överviktsprincip – Zum Verhältnis von richterlicher Überzeugung und Wahrscheinlichkeit, in Lüderitz/Schröder (eds.), Festschrift für Gerhard Kegel, Frankfurt a. M.: Alfred Metzner 1977, p.  451 et seq.; Huber (note  1), at 102 et seq.; Rech­ berger, Maß für Maß im Zivilprozeß? Ein Beitrag zur Beweismaßdiskussion, in Prütting (ed.), Festschrift für Gottfried Baumgärtel, Köln etc.: Carl Heymanns 1990, p.  471, 476; Bender, Das Beweismaß, in Grunsky et al. (eds.), Festschrift für Fritz Baur, Tübingen: Mohr Siebeck 1981, p.  247 et seq.; Koussoulis, Beweismaßprobleme im Zivilprozeßrecht, in Festschrift für Karl Heinz Schwab, München: C.H. Beck 1990, p.  277.

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ent from probability, so different that probability could not even be an element of them.34 A difficult argument is that both “subjective” probability and the “beyond reasonable doubt”- or “intime conviction”-standard are “subjective” in the sense that the judge has to take an individual, personal position. One could ­either deduce from this argument that all standards must be the same and are, therefore, probability standards, or that the “beyond reasonable doubt”- and “intime conviction”-standards must be distinct from “subjective” probability in such a manner that “subjective” probability stands completely apart and has no influence whatsoever once these two standards apply. Any of these two solutions would logically contradict the idea of “subjective” probability as an element of proof. The third solution is to construe these standards of proof in a way that they include “subjective” probability, but do not stop there. In other words, the judge must believe that a certain issue is probable to a certain degree, but that something must in some way or another add to this. It seems impossible to answer this question from a purely logical point of view. A lawyer will therefore try to find a legal determination. However, we are not aware of any legislator that would have given advice on these issues, and also courts are reticent to enter too deeply in these questions. Starting from the designation of the standards, it seems that a standard bearing the name “beyond reasonable doubt” is more prone to measuring and could therefore indeed de facto be a standard of high “subjective” probability or at least a standard which depends very much on how probable an issue was in the eyes of the judge. The “intime conviction”-standard seems to be more focused on the judge’s state of mind in the sense that all which matters is the judge’s individual conviction. This would also fit well with the historical origins of this standard, as it was – together with the free evaluation of the evidence by the judge – considered to be the antipode to the legal rules governing the evaluation of the evidence, rules which had a lot to do with measuring. This does not exclude that the individual conviction, although being something binary in the sense that the judge is either convinced or she is not, is somehow linked to “subjective” probability. But be this as it may – in all cases in which the standard of proof is not explicitly a certain level of probability, one question remains: Does, in these cases, proof require a certain minimum probability, and if so, what probability is required and how is it determined?

34  In this direction Greger (note  1), at 113 et seq.; Schwab, Das Beweismaß im Zivilprozeß, in Holzhammer (ed.), Festschrift für Hans W. Fasching, Wien: Manz 1988, p.  451 et seq. Some authors interpret the position of the German Federal Supreme Court in this sense. However, this interpretation neglects the limits accepted by the Supreme Court; see Brinkmann (note  1), at 44.

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VI. Minimum Probability as Requirement for Proof 1. The Debate From the 1960s on, a number of authors started to discuss the relationship between probability and proof. Not only did they take the position that probability is always a requirement for proof, but they also provided theoretical explanations, instructions with respect to how probability is to be determined and sometimes even mathematical formulae and an exact overall percentage of probability from when on the judge is allowed to, or even obliged to, take an issue for proven.35 However, so far, none of these approaches has found much support in literature and jurisprudence. Quite understandably, judges have not shown too much interest in dissecting what happens in their brain before they come to a judgment. But they also do not have many opportunities to do so: Only if, in the grounds of a judgment, the judge explains what she thought was probable and what she was convinced of, a superior court has enough material to deal with this issue on appeal. And even then, the superior court will only tackle this issue if the grounds show a discrepancy between what the judge thought was probable and what she ultimately decided – and, in these cases, it would still be a control based only on the grounds of the judgment. A notable exception are sporadic jury instructions in the U.S. and other common law jurisdictions. However, appellate courts are very sceptical about attempts at quantification.36 Moreover, as these instructions are addressed to laymen jurors, they mostly use rather rough illustrations from the area of sport or simple numbers.37 Where probability is translated into percentage terms, the figures differ considerably and are rather low.38 Interestingly enough, the German Federal Supreme Court has endorsed a publication translating “objective” probabilities of paternity into words – in case of a probability of 99.8 % or higher, paternity was said to be “practically proven”, from 99 % to 99.7 %, it was called “highly probable”, from 95 % to 98.9 % “very probable”, from 90 %–94 % “probable” and below “undecided”.39 35  Bolding, Aspects of the Burden of Proof, (1960) 4 Scand. Stud. in L. 9 et seq.; id., Sach­ aufklärung und Überzeugungsbildung im Schwedischen Zivilprozess, in Esser et al. (ed.), Freiheit und Bindung des Zivilrichters in der Sachaufklärung, Frankfurt a. M.: Alfred Metzner 1966, p.  57 et seq.; Ekelöf, Beweiswürdigung, Beweislast und Beweis des ersten Anscheins, ZZP 75 (1962), 289 et seq.; id., Free Evaluation of Evidence, (1964) 8 Scand. Stud. in L. 45 et seq.; id., Beweiswert, in Festschrift für Fritz Baur (note  33), p.  342 et seq. 36 See Tillers/Gottfried, Case comment – United States v. Copeland, 369 F.Supp.  2d 275 (E.D.N.Y. 2005): A Collateral Attack on the Legal Maxim That Proof Beyond a Reasonable Doubt is Unquantifiable?, 5 Law, Prob. & Risk 135–138 (2006) (describing “judicial hostility towards ‘quantification’ of reasonable doubt”) and the references therein. 37  Cf., e. g., State v. DelVecchio, 464 A.2d 813, 817–818 (Conn. 1983). 38  Cf. Judge Posner’s concurring opinion in U.S. v. Hall, 854 F.2d 1036, 1044 (7th Cir. 1988). 39  BGHZ 61, 165, 172 = NJW 1973, 1924, 1926.

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However, the court refrained from deriving any consequence for the judge’s conviction from the numbers or the translation. Legal literature has mostly rejected the attempts to determine probability with mathematical accuracy.40 Apart from more philosophical arguments, the critics point out that in most cases, the judge lacks completely a solid basis to determine the probabilities that are supposed to be the input of the calculus.41 2. Brief Discussion To my mind, defining an exact minimum requirement and prescribing in detail how a judge must calculate the overall probability is indeed neither feasible nor would it bring about better results. It is not feasible because, first, the judge would have to attribute a probability to each and any issue on which she might base her decision, an exercise which is not only error-prone but would take an enormous amount of time, and second, combining all the individual probabilities would be mathematically challenging, as a mere adding up would not necessarily be adequate, in particular in cases of circumstantial evidence where there could be important correlations. It would not bring about better results because the risk of omitting or attributing the wrong weight or probability to an issue is high, and the judge would either – succumbing to the fascination of her mathematical performance – accept results which, for every normal person, are contrary to common sense, or would compare the overall result with her intuition and then change the input or the calculation accordingly. However, this does not mean that the standard of proof should in all cases in which it is not directly defined as an evaluation of probabilities be completely detached from probability. This should be obvious for “objective” probability, but it also holds for subjective probability. In my opinion, the state of mind of being convinced is always, at least unconsciously, preceded by an evaluation of the “subjective” probabilities. I would even go so far as to say that it is difficult to be convinced of something which I do not believe to be at least more probable than not.42 Therefore, the judge should always ask herself whether the issues on which she bases her decision are probable, and wherever an “objective” or “subjective” probability can be assigned to some or all of them with reasonable effort the judge should be invited to do so and to make her results transparent in the grounds for the decision. I therefore think that probability should indeed be considered an element of the standard of proof. However, the judge should refrain from using mathematical formulae – to protect herself as much as to provide reasons which can be understood by the citizens. 40 

But see Tillers/Gottfried (note  36), at 141 et seq. Brinkmann (note  1), at 26, 38; Stürner (note  5), at 816. 42  See also Brinkmann (note  1), at 45. 41 

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Insofar as probability is an element of proof, it does not seem adequate to provide the judge with a uniform guideline of “more probable than not” in all civil matters.43 Rather, the judge should be incentivised to apply a high standard of proof. Moreover, the judge should, in a general way, take into account the factual and legal environment.44 Thus, it seems right to require a higher probability in cases in which the consequences of losing the case are per se not equally distributed, but one party would, as a matter of structure, greatly suffer from a wrong decision while the other could bear the burden with minor inconvenience. For example, in sports law, if an athlete is accused of having violated anti-doping regulations and the accusations are based on circumstantial evidence, the consequences for the athlete are grave, ranging from a censure to a fine or a ban which might mark the end of the career. It is therefore a first step that the “comfortable satisfaction”-standard requires a probability which is higher than the balance of probabilities. However, this “higher” does not seem to be enough. As a guideline – and, of course, not a mathematical exercise – for the judge, the probability should, in my eyes, be described as “very high”,45 and this “subjective” probability evaluation should be complemented by the judge’s personal conviction as a state of mind. In sports law as well as in other civil matters, what counts should be personal conviction, not merely probability – and the object of this personal conviction should be truth, not probability.46

VII. Conclusion Let us conclude. The relationship between probability and proof can be analysed under various aspects: Probability can be the object of proof, can be the standard of proof or can be an element of proof. In all these cases, it makes sense to distinguish “objective” and “subjective” probability. The most challenging case is the last one: probability, and in particular, “subjective” probability, as an element of proof. In this case, proof cannot be equated with a certain probability. Nevertheless, not only “objective”, but also “subjective” probability should play a role. Of course, the judge should not be obliged to assign a probability to 43  This issue has received some attention in Common Law countries. While U.S. courts have developed the “clear and convincing evidence”-standard, Commonwealth courts recently decided to stick with the uniform “preponderance of the evidence”-standard although circumstances are said to be a matter of common sense. See, for England, In re B (Children), [2009] 1 A.C. 11, [2008] 3 W.L.R. 1, [2008] UKHL 35, para.  13 (Lord Hoffmann); for Canada F.H. v. McDougall, 2008 SCC 53, 2008 CarswellBC 2041, also reported under the name C.(R). v. McDougall. 44  See also Bater v. Bater, [1950] 2 All E.R. 458 (C.A.) at 459 (Lord Denning): “degree of probability which is commensurate with the occasion”; overruled by In re B (note  43). 45  See also, in this sense, Duttig (note  29), p.  260 ff. 46  For the latter solution, see the references in note  33.

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every individual issue and combine the numerous probabilities in order to find out whether a certain percentage of probability is achieved. However, the judge should, where appropriate, consider the probabilities and render an account of this in the grounds of the judgment. Probability, therefore, should indeed be considered as an element of the standard of proof, and the judge should take into account the factual and legal environment when asking herself on what level of probability she bases her personal conviction.

The More-probable-than-not Standard A Critical Approach Magne Strandberg

I. Introduction and comparative overview Although the standard of evidence is a universal problem that applies to all modern legal systems, the preferred standard seems to vary quite a lot from one legal family to another. One characteristic in the Anglo-American legal family is the clear distinction between a high standard of evidence in criminal cases and a low standard in civil cases. While any reasonable doubt must benefit the accused in a criminal case, any preponderance of probability suffices in a typical civil case.1 The low standard for civil cases has a long history. John Leubsdorf tracked the roots of the rule back to the late nineteenth century when English courts started distinguishing between a high criminal standard and a low civil standard.2 Other legal families are not characterized by such a clear distinction. In the German legal family, for instance, the standard of evidence is lower in a civil case than in a criminal case, but even in civil cases, the standard is much higher than a mere preponderance of the evidence.3 In the Scandinavian jurisdictions, which are influenced by both Anglo-American law and continental law in many procedural matters, there is a high degree of variation concerning the standard of evidence. While the more-probable-than-not standard applies in some civil cases in Sweden and Denmark, Norway is the only Scandinavian country having that standard as a main rule.4 Even in Europe, where the more-probable-than-not standard is a part of the law as it is in a few countries only, it has been subject to academic discussions in most legal families. That standard is of course at the heart of Anglo-American discussions, and from the 1960s onwards the more-probable-than-not standard 1 Dennis, The Law of Evidence, 5th ed., London 2013 p.  484, Keane and McKeown, The Modern Law of Evidence, 10th ed., Oxford 2014 p.  109, Broun, McCormick on Evidence, 7th ed., St. Paul 2014 p.  721. 2  Leubsdorf, Preponderance of the Evidence: Some History, Rutgers Law School – N ­ ewark: Working Papers Series. Paper No 149 p.  16–17. 3  Prütting, in: Rauscher, Wax and Wenzel (eds.), Münchener Kommentar Zivilprozessordnung, 3rd ed., München 2008 p.  1655–1667 (section  32–40), Greger, Zöller Zivilprozessordnung, 28th ed., Köln 2010 p.  913 (section  18), Ahrens, Der Beweis im Zivilprozess, Köln 2015 p.  350. 4  See my paper “Standards of Evidence in Scandinavia” in this book, p.  135–159.

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has also been a part of the discussions in German-speaking countries.5 When comparing the theoretical attitudes towards that standard, one contrast is revealed immediately: While a clear majority of Anglo-American scholars argue in favour of a low standard of evidence in civil cases and recommend such a standard as the main rule for civil cases,6 a clear majority of German scholars do not find such a standard persuasive and do not recommend such a standard either, except perhaps under certain extraordinary circumstances. A small ­ ­minority of German-speaking scholars argue in favour of the more-probablethan-not standard,7 thereby introducing the most recognized arguments from Anglo-American law into the German debate, but their arguments have not found much resonance in prevailing German theories.8 Since the more-probable-than-not standard is generally accepted in some parts of European legal families and generally rejected in others, such a question must be of importance: Is the more-probable-than-not standard justified? In answering that question, I will critically analyse the arguments put forward by those who recommend the more-probable-than-not standard as a general principle for civil cases, i. e. a main rule that applies in all civil cases unless there is a special reason that justifies an exception. Hence, I will deal with the 5 Musielak, Die Grundlagen der Beweislast im Zivilprozess, Berlin/New York 1975 p.  110, Musielak, Das Överviktsprincip. Zum Verhältnis von richterlicher Überzeugung und Wahrscheinlichkeit, in: Lüderitz and Schröder (eds.), Internationales Privatrecht und Rechtsvergleichung im Ausgang des 20. Jahrhunderts – Bewahrung oder Wende, Festschrift für Gerhard Kegel, Frankfurt 1977 p.  451 ff., Prütting, Gegenwartsprobleme der Beweislast, München 1983 p.  73–86, Leipold, Beweismaß und Beweislast im Zivilprozeß, Berlin/New York 1985 p.  6 –9, Schwab, Das Beweismaß im Zivilproseß, Festschrift für Hans W. Fasching zum 65. Geburts­ tag, Wien 1988 p.  451–462, Rechberger, Maß für Maß im Zivilprozeß? Ein Beitrag zur Beweismaßdiskussion, in: Prütting (ed.), Festschrift für Gottfried Baumgärtel zum 70. Geburtstag, Köln 1990, Baumgärtel, Laumen and Prütting, Handbuch der Beweislast, 3rd ed., Köln 2016 p.  95–96. 6  F ex Kaye, Clarifying the burden of persuasion: what Bayesian decision rules do and do not do, The International Journal of Evidence and Proof (vol.  3) 1999 p.  1–28, Redmayne, Standards of Proof in Civil Litigation, The Modern Law Review (vol.  62) 1999 p.  167–195, Zuckerman, Zuckerman on Civil Procedure. Principles of Practice, 2nd ed., London 2006 p.  757. Critical towards the more probable than not standard: Walker, Preponderance, probability and warranted factfinding, Brooklyn Law Review (vol.  62) 1996 p.  1075–1136 (on p.  1097–1120), Kaplow, Burden of proof, The Yale Law Journal (vol.  121) 2011–2012 p.  738–859. 7  Kegel, Der Individualanscheinsbeweis und die Verteilung der Beweislast nach überwiegender Wahrscheinlichkeit, in: Biedenkopf, Coing and Mestmäcker (eds.), Das Unternehmen in der Rechtsordnung – Festgabe für Heinrich Kronstein, Karlsruhe 1967 p.  321–344, Maassen, Beweismaßprobleme im Schadensersatzprozeß: Eine rechtvergleichende Untersuchung zum Problem des Beweismaß im deutschen und anglo-amerikanischen Prozeßrecht unter besonderer Berücksichtigung des Schadensersatzprozesses, Köln-Berlin-Bonn-München 1975, Motsch, Vom rechtsgenügenden Beweis. Zur Entscheidung von Zivilsachen nach Wahrscheinlichkeit unter besonderer Berücksichtigung der Abstammungsfeststellung, Schriften zum Prozessrecht, Band  79, Berlin 1983 p.  37–55, Schweizer, Beweiswürdigung und Beweismaß. Rationalität und Intuition, Tübingen 2015. 8  For instance Prütting, fn.  5, 1983 p.  7 7–79.

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normative justification of the more-probable-than-not standard. I will examine whether the arguments put forward in favour of that standard have the force or strength necessary to establish a main rule for civil cases. Such arguments have the required force or strength only if the arguments are relevant for civil cases in general – at least they must be relevant for the typical civil cases or the majority of civil cases. My project, then, is not one of comparative law. I will not try to explain why certain arguments tend to be accepted in some jurisdictions while they are rejected in others.9 Nor do I have any ambition to answer how standards of evidence work in practice, and I will not go into whether the differences found in legal textbooks and deeper theoretical analysis in Anglo-American countries and German-speaking countries are of any practical importance.10

II. A theoretical framework for the more-probable-than-not standard 1. Typical Approaches of American Theories In order to examine the arguments put in favour of the more-probable-than-not standard, it is necessary to identify and clarify both the standard itself and the arguments. The American discussion after the emergence of the so-called new evidence scholarship11 from the 1960s onwards reveals that standards of evidence are understood, justified or explained in radically different ways within different theories of evidence and proof. Typically, the various American theories assume that the law consists of a criminal standard saying that any reasonable doubt shall benefit the accused, a civil standard saying that any preponderance of evidence suffices, and an intermediate standard requiring clear and convincing evidence. At the very heart of the debate, then, are attempts to explicate the meaning of these standards; see, for instance, the start of David Kaye’s wellknown article on burdens of persuasion: “The prosecution in a criminal case has the burden of proving its case beyond reasonable doubt, and the plaintiff in a typical civil case has the burden of proving its case by preponderance of the evidence. But what do these hoary phrases mean?”12 9 See f ex Brinkmann, Das Beweismaß im Zivilprozess aus Rechtsvergleichender Sicht, Köln 2005, Clermont, Standards of Decision in Law. Psychological and Logical Bases for the Standard of Proof, Here and Abroad, Durham 2013 p.  221 ff. 10  See for instance Schweizer, The civil standard of proof – what is it, actually?, The International Commentary on Evidence and Proof (vol.  20) 2016 p.  217–234. 11  Lempert, The New Evidence Scholarship: Analyzing the Process of Proof, Boston University Law Review (vol.  66) 1986 p.  439–477, Park, Evidence Scholarship, Old and New, ­Minnesota Law Review (vol.  75) 1991 p.  849–873, Twining, Rethinking Evidence. Exploratory Essays, 2nd ed., Cambridge 2006 p.  237–270. 12  Kaye, fn.  6 , p.  1.

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Thereafter, he turns to the justification of the standards. As is typical for the American theories, Kaye’s handling of the subject explicates and justifies certain standards of evidence within a single theoretical framework. Hence, such a theory typically both formulates every standard of evidence in terms of one basic concept and explains or justifies all standards within one framework of normative arguments. Typically, the justificatory parts of these theories involve both arguments of epistemological nature and arguments of moral or ethical nature.13 While the goal of arguments of epistemological nature is to decrease the risk of incorrect judgments, the goal of arguments of a moral nature is to allocate or distribute that risk fairly. Although American discussions include many competing theories on standards of evidence, I will introduce only the Bayesian theory and the narrative theory (or the story model theory).14 2. The Bayesian theory Arguably, the Bayesian theory of evidence and proof is the most influential ­­theoretical framework for standards of evidence in the USA. As that theory takes “probability” as its basic concept, all standards of evidence are regarded as a required minimum degree of probability. Probability is defined as a degree of personal or subjective belief that a statement is true.15 A standard of evidence, then, instructs a judge on how strong he or she must be convinced before a proposition is sufficiently proven. Furthermore, rules on standards of evidence and the judge’s evaluation of the evidence shall be in line with axioms and theorems found in classical theories of probability. The most characteristic aspect of this theory, perhaps, is the recommendation that judges apply or at least be aware of the so-called Bayes theorem and other rules of standard probability theory in

13 Stein,

Foundations of Evidence Law, Oxford 2005 p.  12–25. I will not describe the theory based on inductive probability developed by Cohen, The Probable and the Provable, Oxford 1977, the multi-comparative theory developed by Clermont 2013, or the theory developed by Kaplow 2012. 15  Kaplan, Decision Theory and the Factfinding Process, Stanley Law Review (vol.  20) 1967–1968 p.  1065–1092 (on p.  1066–1067), Cullison, Probability analysis of judicial fact-finding: A preliminary outline of the subjective approach, Toledo Law Review (vol.  1) 1969 p.  538– 598 (on p.  539 and 562), Eggleston, Evidence, Proof and Probability, 2nd ed., London 1983 p.  9 –10, Bell, Decision Theory and Due Process: A Critique of the Supreme Court’s Lawmaking for Burdens of Proof, The Journal of Criminal Law & Criminology (vol.  78) 1987–1988 p.  557–585, Kaye, What is Bayesianism? A guide for the perplexed, Jurimetrics (vol.  28) 1987– 1988 p.  161–177 (on p.  165–166), Friedman, Answering the Bayesioskeptical challenge, International Commentary on Evidence and Proof 1997 p.  276–291 (on p.  277). The subjective concepts date back to Ramsey, Truth and Probability from 1927, printed in: Ramsey (Mellor ed.), Philosophical Papers, Cambridge 1990, and de Finetti, Theory of Probability, New York 1974. Further reading on meanings of “probability”: Gillies, Philosophical Theories of Probability, London 2000. 14 

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their evaluation of the evidence.16 Axioms and rules of probability theory may affect the standard of evidence as well. Firstly, since a degree of probability is always a number between 0 and 1, standards of evidence tend to be explicated by the use of numbers. Secondly, since the negation or complementation rule of standard probability theory says that the probability of a statement always is 1 minus the probability of its negation,17 any standard of evidence is defined as a degree of probability in favour of one proposition over its negation. Hence, the preponderance of the evidence standard is defined as “more probable than not”,18 which means that one concretized proposition (x) must be more probable than the negation of that proposition where the negation includes every pro­ position that contradicts x. Thirdly, the multiplication rule of standard probability theory, after which the probability of two independent propositions both being true is the product or the probability of the two,19 affects the reasoning and the application of a standard of evidence. We will return to that effect in section III.5. A theory of probability can only tell us how probable a proposition is or should be taken to be when several beliefs of pieces of evidence are combined. It cannot tell us which degree of probability ought to be required by a legal system or any other system for decision making. In order to justify a standard of evidence, a decision theory or typically a so-called “Bayesian decision theory” is involved.20 Bayesian decision theory is a normative theory, 21 which means that it does not describe how decisions are actually taken; it deals with how a decision maker should decide if he or she intends to be a rational human being. A rational decision maker should choose the decision that maximizes subjective expected utility.22 Whenever a decision is taken under uncertainty, the subjective expected utility of a decision is a product of two factors: the positive or negative value of a decision’s consequences, and the probability of those consequences occurring.

16  F ex Finkelstein and Fairley, A Bayesian Approach to Identification Evidence, Harvard Law Review (vol.  83) 1969–1970 p.  489–517 (on p.  498 ff.), Friedman, A Close Look at Probative Value, Boston University Law Review (vol.  66) 1986 p.  733–759. 17  Stein, fn.  13, 2005 p.  41. 18  Kaye, fn.  20, p.  8 . 19  Stein, fn.  13, p.  41. 20  Kaplan, fn.  15, p.  1069 ff., Hamer, The Civil Standard of Proof Uncertainty: Probability, Belief and Justice, Sydney Law Review (vol.  16) 1994 p.  506–536 (on p.  506). The phrase “Bayesian decision theory” is used by for example Bell 1987 p.  557–558, Kaye, fn.  15, p.  173– 177, Kaye, fn.  6, p.  4 and Gärdenfors and Sahlin, Decision, Probability, and Utility, Cambridge 1988, probably in order to distinguish the theory from other decision-making theories, such as the one developed by Klami and others, Ett rationellt beviskrav, Svensk Juristtidning 1988 p.  589–605 and Gräns, Das Risiko materiell fehlerhafter Urteile, Berlin 2002. 21  Kaye, fn.  6 , p.  4. 22  Kaye, fn.  6 , p.  4.

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Judges face a problem similar to those described in theories of rational decision-making: they must decide either in favour of the plaintiff or in favour of the defendant, 23 they must do so under uncertainty, and certain consequences may follow from the decision chosen. Although decision-making theories thereby seem to be relevant, in the context of judicial decision-making it is more appropriate to ask for the decision that minimizes expected loss instead of asking for the one that maximizes expected utility.24 Assuming that a materially incorrect verdict is worse than a materially correct verdict, the core goal, then, is to cut error costs. Following such an approach, a standard of evidence would be normatively justified if the negative consequences of an incorrect verdict in disfavour of the plaintiff are compared to the negative consequences of an incorrect verdict in disfavour of the defendant.25 If an incorrect verdict in disfavour of the defendant is 10 times worse than an incorrect verdict in disfavour of the plaintiff, then the probability of the facts necessary for the plaintiff’s case must amount to a probability rating of more than 90 % before a finding in his favour is the rational decision.26 If the negative consequences of an incorrect verdict in disfavour of the plaintiff equal the negative consequences of an incorrect verdict in disfavour of the defendant, then the standard of evidence shall be approximately 50 %. Assuming that a typical civil case stands between equal parties and that the state has no preferences in favour of any of them, which means that the negative consequences of a wrongful verdict are not affected by whom is hurt by the verdict, a rational decision-maker should, at least in a typical civil case, apply the more-probable-than-not standard. Most proponents of Bayesian decision theories will add to the justification for the more-probable-than-not standard that it will lead to the lowest number of incorrect verdicts in the long term, or at least is expected to have such an effect.27 When preferring a materially correct verdict to a materially incorrect verdict, there is a goal of minimizing the number of incorrect verdicts involved. So, within this theory, the more-probable-than-not standard is justified by two main arguments: one expects the standard to produce the lowest number of materially incorrect verdicts, and one expects the errors produced to be divided equally between plaintiffs and defendants. Both arguments relate to the expected consequences of a court system, and the moral justification is essentially consequential (perhaps even utilitarian).

23  This is, of course, simplified because it presupposes an all-or-nothing-approach and it does not fit for assessment of damages, for instance, where the options rarely are either a full win for one party or a full win for the opposite party. 24  Kaye, fn.  6 , p.  5 –6. 25  Kaye, fn.  6 , p.  1. 26  Kaye, fn.  6 , p.  1–2. 27  Kaye, fn.  6 , p.  28.

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3. The story model During the last 30 years or so, the story model of evidence and proof has been established as the most important alternative to the Bayesian theory. Typically, proponents of the story model are sceptical towards the practical use of probabilistic theories, especially because empirical research discloses that evaluations of evidence made by judges in real life are not based on probabilistic techniques.28 Instead, judges tend to evaluate the quality of complete stories, both their internal qualities as stories considered and their external support by the evidence. Typically, proponents of the story model also underline several problems or paradoxes, which have been longstanding well-known difficulties related to the Bayesian theories of proof.29 One of those “paradoxes” has to do with the multiplication rule,30 which is discussed in section III.5. Ronald J. Allen introduced an alternative formulation of standards of evidence where concepts of probability are replaced by concepts of a story and their relative plausibility.31 Instead of asking whether one party’s concretized proposition is more probable than the mere negation of that proposition, Allen assumes that both parties present equally concretized propositions and that the standard of evidence should be formulated so that the party who presented the most plausible story should win.32 Instead of asking whether one concretized version (x) was more probable than its negation (non-x), Allen would ask whether one concretized version (x) was more plausible than a competing concretized version (y). The plausibility of a story will depend both on the internal matters in the story itself, whether it is consistent and so on, and on external matters regarding the relationship between the story and the evidence, which quite of28  Bennett and Feldman, Reconstructing Reality in the Court Room, London/New York 1981, Hastie, Penrod and Pennington, Inside the Jury, Harvard 1983, Pennington and Hastie, A Cognitive Theory of Juror Decision Making: The Story Model, Cardozo Law Review (1991–1992) p.  519–557, Pennington and Hastie, The story model for juror decision making, Inside the Juror: the Psychology of Juror Decision Making, Cambridge 1993 p.  192–221. 29  Allen, A Reconceptualization of Civil Trials, Boston University Law Review (vol.  66) 1986 p.  401–437 (on p.  418 ff.), Allen, The Nature of Juridical Proof, Cardozo Law Review (vol.  13) 1991 p.  373–422 (on p.  373–382). The paradoxes date back to Cohen, fn.  14, p.  49 ff., and they are intensely discussed both by proponents of the Bayesian model and others, see f ex Stein, fn.  13, p.  6 4–106, Redmayne, Exploring the Proof Paradoxes, Legal Theory (vol.  14) 2008 p.  281–309 and Lai, A Philosophy of Evidence Law: Justice in the Search for Truth, Oxford 2008 p.  135–143. 30  Cohen, fn.  14, p.  58 ff., Allen/Jehl, fn.  31, p.  919–929. 31  Allen, fn.  29, p.  425–431, Allen, fn.  29, p.  373–422, Allen, Factual Ambiguity and A Theory of Evidence, Northwestern University Law Review (vol.  88) p.  1993–1994 p.  604–634, Allen, Rationality, algorithms and juridical proof, International Journal of Evidence & Proof, (vol.  1) 1996–1997 p.  254–275, Allen and Jehl, Burdens of persuasion in civil cases: Algorithms v. explanations, Michigan Law Review (vol.  4) 2003 p.  893–944, Allen and Stein, Evidence, Probability, and the Burden of Proof, Arizona Law Review (vol.  55) 2013 p.  557–602 . 32  Allen, fn.  29, p.  409.

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ten is regarded as a question of which of the stories provides the best explanation of the evidence.33 Allen’s rephrasing of the standards of evidence is supported by several independent lines of reasoning. Firstly, a story model is supposed to be more in line with the nature of judicial trials because both parties in a civil case, also those who do not carry the burden of proof, will be encouraged to present a detailed version of the facts.34 Most often, a party will not plead the mere negation of the other party’s story because such a strategy will not be found trustworthy. Secondly, Allen argues that a story model is in line with the basic epistemological attitudes that judges are familiar with and that the judges’ evaluation of the evidence is characterized by. While Bayesian theories of evidence and proof tend to impose unfamiliar technicalities on judges, a story model way of reasoning about evidence is well established in empirical studies from cognitive psychologists and others.35 Thirdly, such a rephrasing of the civil standard may be justified by its ability to handle the parties as equals. Within a story model version of the civil standard of evidence, no party would gain the advantage of pleading “non-x” and thereby having the opportunity of summing up all other alternatives than the one alternative alleged by the party carrying the burden of proof. Therefore, Allen argues, the story model’s understanding of standards of evidence avoids the “paradoxes” of standard probabilistic theories because the ­effect of multiplication or another joint evaluation of an entire story will affect both parties’ stories in the same fashion whenever the stories are equally concretized.36 4. The limits of the following analysis While acknowledging the growing importance of the story model and explanation-based reasoning in American law and theory, the following analysis of the normative justification of the more-probable-than-not standard will deal with the Bayesian theory only. That is not because I regard the Bayesian theory as the most promising one, but because it is the better choice for an evaluation of the more-probable-than-not standard in a European context. Although a Bayesian theory is not very influential on the law on evidence and proof in most European jurisdictions, officially37 those few jurisdictions (England and Norway) that 33  See Pardo, Judicial Proof, Evidence, and Pragmatic Meaning: Toward evidentiary ­Holism, Northwestern University Law Review (vol.  95) 2000–2001 p.  399–492 (on p.  403–404), Pardo and Allen, Judicial Proof and the Best Explanation, Law and Philosophy (vol.  27) 2008 p.  223– 268, Allen and Stein, Evidence, Probability, and the Burden of Proof, Arizona Law Review (vol.  55) 2013 p.  558–602 (on p.  567–571). 34  Allen/Jehl, fn.  31, p.  936–937. 35  Allen, fn.  29, p.  382–392, 396–406 and 410. 36  Allen, fn.  29, p.  409 and 410, Allen, fn.  31, p.  614. 37  Please notice that the standard that actually works in practice may be more of a comparison of concretized versions, see section III.4 below.

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apply a low standard of evidence in civil cases seem to define the standard similar to the definitions found in Bayesian theories, at least they are more similar to the Bayesian understanding than to the understandings found in the story model. In English law, for instance, the standard of evidence in civil cases is often named “on the balance of probabilities” or “preponderance of probability“, which means that the fact alleged by the party carrying the burden of proof must be more probable than not: “It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘we think it more likely than not’, the burden is discharged, but if the probabilities are equal it is not.”38

The same goes for Norway where the Supreme Court has expressed that the main rule is a more-probable-than-not standard; one proposition (x) must be more probable than all other alternatives (non-x) taken together.39 The founding arguments put forward by the Norwegian Supreme Court is also in line with Bayesian theories; the more-probable-than-not standard is supposed to produce the highest number of materially correct verdicts,40 and the consequences of an incorrect verdict in disfavour of one party is, in a typical civil case, as negative as the consequences in the opposite direction.41 Once again, in line with Bayesian theories, in atypical cases where the consequences of an incorrect verdict in disfavour of one party will be substantially worse than the consequences of an incorrect verdict in disfavour of the opposite party, a higher standard of evidence applies in order to protect the party facing the most negative consequences. When considering the theoretical debates on evidence and proof in Europe, one may argue that the Bayesian version of the more-probable-than-not standard is the most important version of such a low standard of evidence. Although neither the Bayesian theory nor the story model have many proponents in Europe when compared to the USA, it is the Bayesian understanding that has been predominant among those who argue in favour of a very low standard of evidence in civil cases. Although the English standards of evidence probably were developed independently of any advanced rational choice theory, most of the deeper theoretical analyses of English standards of evidence have been based on theories similar to the Bayesian one. Mike Redmayne, who has carried out the most intriguing analysis of English case law on standards of evidence, justifies and explains the rules within a basically Bayesian framework. The main standard is explicated as 38  Miller v Minister of Pensions 1947 2 All ER 372. See Dennis, fn.   1, p.  484, Keane/ McKeown, fn.  1, p.  109. 39  Rt.  2015 p.  1246 (section  35). 40  Rt.  2008 p.  1409 (section  39), HR-2016-2579-A (section  33). 41  Rt.  2003 p.  1671 (section  34), Rt.  2005 p.  1322 (section  26), Rt.  2008 p.  1409 (section  39), Rt.  2012 p.  519 (section  72).

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meaning “more probable than not”,42 it is justified by its advantage of minimizing the number of errors,43 and the basic concepts of decision theory is taken as the theoretical framework within which the rules are explained or tested.44 In Norway, Torstein Eckhoff set the doctrinal background of the more-probablethan-not standard back in 1943. Although Eckhoff did not refer to theories of rational decision making, he referred to standard theories of probability and his basic reasons for the more-probable-than-not standard, which has been upheld by the majority of subsequent Norwegian scholars, was similar to the one developed in later Bayesian theories. So, the more-probable-than-not standard was justified by its alleged ability to produce the highest number of materially correct judgments,45 and by the view that a materially incorrect judgment in a typical civil case is as harmful to the defendant as it is to the claimant.46 The most recent theoretical defence of the more-probable-than-not standard has been explicitly based on decision-making theories.47 Even most proponents of the more-probable-than-not standard in Germany and Sweden, where such a standard is not a part of the law as it is, put forward arguments similar to those found in Bayesian decision theories. The reasoning by Per Olof Bolding, arguably the most influential proponent of the more-probable-than-not standard in Sweden, are similar to and inspired by the theory developed by Eckhoff for Norwegian law.48 In Germany, the proponents of the “Überwiegensprinzip” were inspired by Scandinavians and Anglo-Americans, and the most advanced German scholars explicitly based their theories on Bayesian theory of rational decision-making.49 The recently published book of Mark Schweizer, whose defence of the more-probable-than-not standard is by far the best ever produced in the German language, is also clearly inspired by and in line with Bayesian decision-making theories.50 42 

Redmayne, fn.  6 , p.  168. Redmayne, fn.  6 , p.  169. 44  Redmayne, fn.  6 , p.  169–174. 45 Eckhoff, Tvilsrisikoen [The risk of doubt (the burden of proof)], Oslo 1943 p.  6 4. See also Augdahl, Norsk civilprosess [Norwegian civil procedure], 3rd ed., Trondheim 1961 p.  101–102, Bratholm and Hov, Rettergang i sivile saker [Proceedings in civil cases], Oslo 1973 p.  299, Graver, Bevisbyrde og beviskrav i forvaltningsretten [Burden of proof and standard of evidence in administrative law], Tidsskrift for Rettsvitenskap 2004 p.  407–422 (on p.  478), Hov, Rettergang II [Proceedings II], Oslo 2010 p.  1150,. Skoghøy, Tvisteløsning [Disputesolutions], 3rd ed., Oslo 2017 p.  914. 46  Skoghøy, fn.  45, p.  914. 47 Jerkø, Bevisvurderingens rettslige rammer. Bevistema, bevisbyrde, beviskrav [beviskrav [Legal frame of the evaluation of evidence, Theme of proof, burden of proof, standard of evidence], Oslo 2017 p.  323–330. 48 Bolding, Bevisbördan och den juridiska tekniken [The burden of proof and the legal technique], Uppsala 1951 p.  86 ff. 49  Maassen, fn.  7, p.  5 –11 and Motsch, fn.  7, p.  82–88 and 93–163. 50  Schweizer, fn.  7, p.  190–249 and 429–453. 43 

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III. Maximizing the number of materially correct verdicts? 1. The empirical content of the argument As has been mentioned above, a widespread argument in favour of the moreprobable-than-not standard is that over time it will, or is expected to, maximize the number of materially correct verdicts. Although such an argument has been relied upon by many proponents of the more-probable-than-not standard in the USA, England, Germany and Scandinavia,51 the argument has been challenged by a number of scholars in all these parts of the world.52 Those who are sceptical towards such an argument may deny the normative value of a higher number of materially correct verdicts or deny that the more-probable-than-not standard will have such an impact on the number of materially correct verdicts. In my further examination of the argument, I will not challenge the normative value of materially correct verdicts since at least most modern European jurisdictions recognize materially correct verdicts as one of the (many) goals of civil procedure law.53 While recognizing the manifold goals of civil procedure law, other things being equal we still prefer a rule that maximizes the number of materially correct verdicts. Since evidence law applies to matters of fact, the goal of materially correct verdicts can be reduced to a goal of truth. Truth, then, may be understood as a straightforward everyday concept according to which a proposition is true if and only if it corresponds to reality or, more modestly, if and only if the reality is as the proposition says it is.54 51 

See section II.4. ex Bender, Das Beweismaß, in: Grunsky, Stürner, Walter and Wolf (eds.), Festschrift für Fritz Baur, Tübingen 1981, p.  247–271 (on p.  256–257), Prütting, fn.  5, p.  85, Ekelöf, En rättsvetenskaplig tragedi [A jurisprudential tragedy] , in: Håstad (ed.), Festskrift till Henrik Hessler: rättsvetenskapliga studier i civilrätt och processrätt, Stockholm 1985 p.  131–160 (on p.  153), Walker 1996 p.  1099–1105, Allen, Reasoning and its foundation: some responses, ­International Journal of Evidence & Proof (vol.  1) 1996–1997 p.  343–347 (on p.  345–347), Heuman, Bevisbörda och beviskrav i tvistemål [Burden of proof and standard of evidence in civil cases], Stockholm 2005 p.  458, Strandberg, Beviskrav i sivile saker. En bevisteoretisk studie av den norske beviskravslærens forutsetninger [Standard of evidence in civile cases. An evidence theoretical approach to the foundations of the Norwegian doctrine concerning the standard of evidence], Bergen 2012 p.  463 ff., Robberstad, Sivilprosess [Civil Prcedure], 3rd ed, Oslo 2015 p.  285–286. 53  See for instance Sorabji, English Civil Justice after the Woolf and Jackson Reforms, Cambridge 2014 p.  137–148, Koller, Civil Justice in Austrian-German Tradition, in: Uzelac (ed.), Goals of Civil Justice and Civil Procedure in Contemporary Judicial Systems, Cham/Heidelberg/New York/Dordrecht/London 2014 p.  35–60 (on p.  46–48), Backer, Goals of Civil Justice in Norway: Readiness for a Pragmatic Reform, in: Uzelac (ed.), Goals of Civil Justice and Civil Procedure in Contemporary Judicial Systems, Cham/Heidelberg/New York/Dord­ recht/London 2014 p.  105–122 (on p.  107–108). 54 Alston, A Realist Conception of Truth, London 1996 p.  38. A realist concept of truth is the most often held within theories of legal evidence, see f ex Hov, fn.  45, p.  56–57, Strandberg, fn.  52, p.  229–243, Schweizer, fn.  7, p.  33. 52  F

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What I will examine, then, is whether the more-probable-than-not standard maximizes the number of materially correct verdicts. A few scholars seem to be certain that such a standard leads to such maximization,55 consistent use of the more-probable-than-not standard over time will result in the highest number of materially correct verdicts. Such a view may seem convincing, at least at first glance, because it is tempting to say that a preponderance of probability for a proposition (x) over its negation (non-x) simply means that – if similar decisions were repeated over many occasions – x will more often be true than non-x. If a judge’s opinion that a proposition is more-probable-than-not carries such a meaning, then maximization of materially correct verdicts is true by definition, it is analytically true. However, the concept of probability involved when a judge finds a proposition more probable than not, is a subjective or epistemic one – it is not a concept of relative frequencies.56 When a judge finds a proposition more probable than not, it means that he finds the proposition better supported by the evidence – it does not mean that a certain ratio of true propositions will result. Hence, one cannot know for certain whether a specific standard of evidence, or any evidence rule, will provide the highest number of materially correct verdicts. Since the external, often historical, fact that makes a verdict materially correct or incorrect is unavailable to us, the number of materially correct verdicts decided over time is unavailable as well. Certainty of the relationship between an evidence rule and its tendency to produce materially correct verdicts or true statements is achievable only if we knew which statements are true and false respectively. Therefore, certainty on an evidence rule’s effect on the number of materially correct verdicts could be obtained only under circumstances under which evidence law would be superfluous. In current discussions, the uncertainty concerning the effects of standards of evidence is acknowledged. Today, most proponents of a Bayesian theory of proof underline that the more probably than not standard is justified not in virtue of its actual consequences, but by its feature of maximizing expected utility: “It is true that there are no general proofs as to what rules will minimise the occurrence of actual errors, but there are readily verifiable proofs that a given decision rule maximizes expected utility or minimises expected losses.”57 55  F ex: Ball, The Moment of Truth: Probability Theory and Standards of Proof, Vanderbuilt Law Review (vol.  14) 1960–1961 p.  807–830 (on p.  816–818), and Skoghøy, Tvistemål [Litigation], 2nd ed., Oslo 2001 p.  675. 56  See footnote  15. As underlined by Walker, fn.  6 , p.  1097–1099 and 1102, the manifold meanings of “probability” seem to be a part of the explanation why scholars tend to simplify the relationship between a standard of evidence and the ratios of correct versus erroneous verdicts. 57  Kaye, fn.  6 , p.  3. Compare Bell, fn.  15, p.  563–564 whose focus seem to be on actual apportionment of errors, not on expected errors.

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Strictly speaking, the proofs that the more-probable-than-not standard maximizes expected utility, or minimizes expected loss, are purely formal proofs which cannot justify that such a standard actually will minimize the number of materially incorrect verdicts. Although formal proofs may lead to beautiful, coherent and clear theories, a standard of evidence, and any other evidence rule, cannot be justified simply by internal references in a formal model. To the contrary, evidence rules must first and foremost be justified by the consequences one has reason to believe that it actually will produce in a given judicial system. In line with such a requirement for justification; proponents of a Bayesian theory of evidence and proof do add that the effects expected by the formal proofs in that theory, on certain assumptions, will materialize in a judicial system: “If minimising expected loss is the criterion that the legal system desires, and if the loss is the same for errors that favour plaintiffs as it is for errors that favour defendants, then in simple cases of a single-plaintiff and defendant, the p > .5 rule is optimal. If minimising actual errors is the criterion, and if actual jurors are well-calibrated, then the same rule is optimal. These formal results apply to the actual conditions of trial.” (Kaye, fn.  6 , p.  265)

According to Kaye, the more-probable-than-not standard will maximize the actual number of materially correct verdicts if jurors or judges in most legal systems, are “well-calibrated”. Bayesian decision theory, however, do not provide us with any reason to believe that judges are “well-calibrated”. One may also argue that “well-calibrated” judges who apply a more-probable-than-not standard do not necessarily produce a higher number of materially correct verdicts than what would have been produced if another standard of evidence applied, which is due to the fact that many other factors than the reasoning provided by judges, for instance the parties’ choices before and during trial, influence the actual effect of a standard of evidence. The essential question to raise, then, is whether there are reasons to believe that the more-probable-than-not standard over time will lead to a higher number of materially correct verdicts than what will be the case if any other standard of evidence apply. The better reasons to believe that the more-probablethan-not standard will lead to such a maximization, the better that standard is justified. At first glance, it may seem obvious that there are good reasons to believe that the more-probable-than-not standard maximizes the number of materially correct verdicts. The judge is typically faced with two alternatives; he can decide in favour of the plaintiff, or he can decide in favour of the defendant. If he always decides in favour of the party whose proposition is more probable, he will in any case take the decision that he finds best supported by the evidence. If the evidence tends to be truth-indicating, one would assume that such a practice inevitably leads to a higher ratio of truths than what would result from other stand-

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ards of evidence. Although such a line of reasoning is intuitively appealing, the relationship between proof rules and the number of materially correct verdicts is not that simple and such a line of reasoning does in fact rest on a number of assumptions which become more dubious when examined in detail. 2. Problems concerning selection of cases A common feature of civil procedure law in European countries is that it is for the parties to decide whether a case shall be brought to court and, when a case is pending before a court, to decide whether the case shall be settled or go all the way to a decision on the merits. Since a standard of evidence is applicable only at the end of proceedings and as an element of the court’s decision on the merits, several formal or informal filtering systems may affect the cases on which a standard of evidence is applied. Any structures or tendencies in the parties’ decision-making process concerning whether to go to court, settle and so on may affect the number of materially correct outcomes of a civil justice system. As underlined by Allen, the actual consequences of a standard of evidence depends on a number of factors and especially the so-called “base rates”,58 which is the number of plaintiffs who should win if the verdict is materially correct (deserving plaintiffs) compared to the number of defendants who should win if the verdict is materially correct (deserving defendants). The effect of the base rates on the number or errors produced by a standard of evidence is best illustrated if one assumes a legal system comprising only deserving plaintiffs or only deserving defendants. If only deserving plaintiffs go to court, the number of materially correct verdicts will be maximized if the standard of evidence is set as low as possible. If only deserving defendants go to court, on the other hand, the highest possible standard of evidence will maximize the number of materially correct verdicts. Such extreme base rates are, of course, very unlikely in the real world, but as a thought experiment, such scenarios work perfectly fine as illustrations of a practically important factor that affects the relationship between the choice of standard of evidence and the outcome of such a choice. Typically, proponents of a Bayesian theory of evidence and proof insist that such a theory works whatever the base rates.59 That is correct insofar as such a theory is only concerned with expected utilities, which is a function of pure formal reasoning, but the thought experiments concerning the base rates show that there can be whatever relationship in real life between a chosen standard 58  Allen, fn.  32, p.  255, Allen, Clarifying the burden of persuasion and Bayesian decision rules: A response to Professor Kaye, International Journal of Evidence & Proof (vol.  4) 2000 p.  246–259 (on p.  248). 59  Kaye, Statistical Decision Theory and the Burdens of Persuasion: Completeness, Generality, and Utility, The International Journal of Evidence & Proof (vol.  1) 1997 p.  313–315 (on p.  314), Kaye, Bayes, burdens and base rates, The International Journal of Evidence & Proof (vol.  4) 2000 p.  260–267 (on p.  260–261).

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of evidence and the number of materially correct verdicts (even over very long time). 60 We cannot gain any kind of knowledge on actual base rates since we do not know whether it is the plaintiff or the defendant who is the deserving party in a case. Hence, base rates are hard to apply in the construction of a positive theory on the standard of evidence and the uncertainty concerning base rates will affect any argument saying that a standard of evidence will maximize the number of materially correct verdicts. Acknowledging the effect of the base rates on the actual consequences of standards of evidence is still important because it reveals one of those blind spots affecting the relationship between a standard of evidence and the number of materially correct verdicts. Furthermore, one should acknowledge that the standard of evidence probably would affect the parties’ choice concerning whether to go to court and whether to settle or not when a case is pending. A party, at least if he or she is somewhat rational, will take the standard of evidence into account when deciding whether to go to court and when deciding whether to settle during the proceeding. Given all sorts of filtering systems inside and outside the court and assuming that the parties are at least somewhat rational when choosing whether they will litigate or not, there are reasons to believe that the cases that are hard to decide given the standard of evidence will be relatively frequent before the court. If such a mechanism works, one may expect that a legal system based on the more-probable-than-not standard will tend to attract cases where there is doubt concerning which of the parties’ propositions is the most probable one. Therefore, such a system may tend to attract the epistemologically most difficult cases, typically cases consisting of a fundamental lack of evidence or multiple bodies of conflicting evidence that point in different directions. If such a mechanism works, one may also have the effect that the number of materially correct verdicts is not at all affected by the standard of evidence because different standards attract different cases. 3. Problems concerning selection of evidence Although Kaye underlines that well-calibrated judges are a necessary condition for the relationship between the more-probable-than-not standard and actual maximization of materially correct verdicts, well-calibrated evidence may also be regarded as a necessary condition for such maximization. 61 Even a well-calibrated judge, who I assume is a judge who evaluates the evidence in a rational 60 

Allen, fn.  58, p.  249. See for instance Bell, fn.  15, p.  564: “… decision theory provides no endorsement of the Court’s lawmaking unless factfinders are indeed fully informed and perfectly rational. There is every reason to assume that they are neither. Indeed, the actual process of cumulating evidence at trials is far from the decision theorist’s ideal.” 61 

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fashion, may produce a materially incorrect verdict if the evidence presented to him is misleading. If the evidence presented supports a false proposition, a well-calibrated judge will find preponderance of the evidence in favour of that proposition, thereby basing the judgment on a false statement of facts and most probably returning a materially incorrect verdict. However, since the argument saying that the more-probable-than-not standard maximizes the number of ­materially correct verdicts concerns the long-term effect of a judicial system, misleading evidence causes a problem only if there is a bias as a consequence of presented evidence being misleading. At first glance, such a bias may seem very implausible. While everyone acknowledges that evidence may be misleading every now and then, a basic assumption of evidence law seems to be that evidence is not normally misleading. Challenging such an assumption may appear to be radical epistemological scepticism, and I will of course not deny that evidence normally is truth-indicating when all evidence that exists or could exist is considered. However, the core issue is whether the evidence presented during the trial may be misleading because of the processes leading to such presentation. The socially complex process of production, gathering, securing and finally presenting evidence in court, which itself is determined by many incentives and purposes that are not exclusively truth-seeking, may very well lead to a selection bias. Such an effect is not unlikely to occur, at least in civil cases. A typical feature of civil procedure law in most European countries, is that the parties normally introduce the evidence on which a court’s decision can be based, which implies that any habit, attitude or tendency in their gathering of evidence may affect not only their chances of success in a particular trial, but also the outcome of a judicial system on a macro level. The parties’ main goal is to win the case, not to discover the truth. A party-driven mode of litigation will not lead to selection bias, apparently, because whenever a piece of evidence supports a party’s case, which all relevant evidence does, at least one party has an incentive to present that evidence to the court. In real life, however, selection bias may still result from a large number of mechanisms within a party-driven system. Firstly, one may have situations where only one of the parties has the benefit of certain evidential privileges, for instance if a party can deny disclosure of the most vital documents because they include information on trade or business secrets. Secondly, one may have pre-trial situations where only one of the parties is in control of the relevant evidence, which he takes advantage of by presenting those pieces of evidence that are positive for his case while holding back the evidence that is negative. Thirdly, one may have situations where one of the parties actively destroys, damages or fails to secure important pieces of evidence. Fourthly, we may have situations where a party lacks the financial or intellectual resources necessary to gather certain important pieces of information.

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In most jurisdictions, these potential mechanisms are handled not by the standard of evidence, but by other parts of civil procedure law. Typically, legal aid schemes or cost rules are supposed to help parties lacking economic resources, rules on access to evidence are supposed to deal with problems where only one party is in control of the evidence, and destruction of evidence may be met with separate sanctions. However, these legal mechanisms are far from perfect; the legal aid schemes are normally very limited in their scope and have been greatly reduced over the last years in many countries as well,62 the rules on access to evidence are costly to make use of, and a basic problem in many European countries is that the evidence sought must be reasonably identified before a party can claim access to them. Although legal mechanisms other than the standard of evidence are supposed to deal with these issues, ineffectiveness of these mechanisms may lead to selection bias and thereby to other practical consequences of standards of evidence than were expected. Probably, the mechanisms that may lead to selection bias are more likely to occur for some types of cases than for others, which is illustrated by these two examples: Let us first think of a dispute concerning the content of a contract that was agreed by the parties during a number of meetings within a few weeks’ time. Both parties were present at all meetings; both had access to all the key documents, drafts and redrafts, and both parties are international companies with all resources necessary to handle the case properly. Under such circumstances, it is quite likely that the judge will have all possible information presented to him. Let us now think of a dispute concerning product liability between a consumer in Sweden and a mass producer in another European country, where the key issues are whether the product had a defect and if so whether the defect caused the consumer’s injury. The consumer does not have the resources necessary for a full-scale test of the product, so the company is the only party with access to relevant information on how the product is produced, what it consists of, how it is constructed and so on. Under such circumstances, the quality of the evidence presented to court will first be a matter of the strategy of the company, thereafter a matter of whether the party, or the court on its own motion, is able to get more evidence disclosed if the producer does not disclose voluntarily. If a party or the court try to get access to more evidence than what has been disclosed voluntarily, the producer may apply for evidential privileges for instance because the evidence contain trade secrets, they may falsely deny that more relevant information is in their possession, or they may choose to send large numbers of documents to the party so that he will give up, for instance because of financial issues. 62  The best example is England and Wales where the strong legal aid scheme from 1949 has been reduced during the most recent decades, see Andrews, On Civil Procedure. Court Proceedings, Cambridge 2013 p.  695.

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The basic point here, of course, is that the mechanisms involved in the selection of evidence are complex, not always truth promoting, and may very well cause selection bias. The result of all these mechanisms, may, over a very long time and for very many cases, result in other outcomes than those that are necessary if the more-probable-than-not standard is expected to maximize the number of materially correct verdicts. It is hard to know exactly how such mechanisms impact on the proceedings and their outcomes, and that lack of knowledge is a troublesome aspect of any theory claiming that a certain standard of evidence is expected to achieve this or that effect. One may argue, though, that the standard of evidence may affect the quality of the evidence presented to the court. Proponents of the more-probable-thannot standard may argue that such a standard is favourable because it leaves the parties with equally strong incentives to produce evidence. Proponents of higher standards of evidence, on the other hand, may argue that a high standard of evidence will result in better quality of the presented evidence in cases where one of the parties typically has better access to the evidence. Cases that include a party’s destruction, damaging or failure to secure important evidence raise another problem for proponents of the more-probable-thannot standard. Recalling that the argument to be examined here is that consequent use of the more-probable-than-not standard will yield the highest number of materially correct verdicts, which is if such a standard always is applied, such a law-making strategy will send a message such as the following: if your destruction, damaging or failure to secure evidence is discovered, we will still apply the more-probable-than-not standard. Such a rule will encourage a rational party with no incentives to present other evidence than those that are positive to his case. Alternatively, higher standards of evidence could apply as a sanction against such behaviour in order to obtain a deterrence effect, for instance if the standard of evidence is changed to disfavour a party that has destroyed or by other means unlawfully or unreasonably withheld evidence from the case. For instance, we could apply a high standard of evidence instructing the judge to rule against a party that has destroyed evidence or in any other way withheld evidence unless that party, as an effect of presenting other evidence, fully convinces the court of his alleged fact. Of course, we do not know whether such a rule actually will prevent litigants from destroying or withholding evidence, but at least it would introduce a new factor into a game in which the parties create their strategies. While acknowledging the uncertainty concerning such a deterrent effect, one must also acknowledge that the very same uncertainty affects the argument saying that the more-probable-than-not standard maximizes the number of materially correct verdict because such maximization presumes a comparison of expected effects of the more-probable-than-not standard versus all other possible standards of evidence. Hence, if we cannot know whether another standard of evidence has a deterrent effect on destruc-

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tion of evidence or other mechanisms that may negatively affect selection of evidence, we can also not know whether the more-probable-than-not standard leads to a higher number of materially correct verdicts than what would be obtained with another standard. The tension suggested here between using the standard of evidence as an element for creating incentives and as an instrument for the best possible handling of the evidence actually presented during a trial, are familiar in Scandinavian law and legal literature. While the reasoning prevailing in Norway is that the more-probable-than-not standard will maximize the number of materially correct verdicts because it is the better way to deal with the evidence being presented, the prevalent view in Denmark has been to place the burden of proof and often a quite high standard of evidence on the party who has the best opportunities to collect the evidence. In Danish law, one is also more inclined to use the standard of evidence as a sanction against parties who have destroyed or not secured evidence. 63 4. Problems concerning evaluation of evidence As underlined by Kaye, the more-probable-than-not standard leads to the highest number of materially correct verdicts only if the judge is “well-calibrated”. 64 Although I will not at all argue that judges in general are irrational in their evaluation of evidence, it is nevertheless possible to argue that certain patterns or tendencies in the judges’ evaluation of the evidence are capable of creating obstacles for a Bayesian argument in favour of the more-probable-than-not standard. Judges may systematically over- or underestimate evidence, and if they do so, it may imply that a more-probable-than-not standard will not maximize the number of materially correct verdicts. If it is revealed that judges do evaluate evidence in a biased manner, for instance by overestimating certain pieces of evidence in favour of defendants, an adequate response may be found, according to proponents of the Bayesian theory, in not altering the standard of evidence, but in “mitigating the factors that prompt such overestimates”65. While not disregarding the possibility of such adjustments for instance by educating judges or by introducing procedural rules, a court system may entail some obstacles to such a strategy. The prospects for such adjusting strategy decline by virtue of the lack of adequate feedback mechanisms in a court system. 66 Even though a judge’s eventual bias in his evaluation of the evidence may be adjusted by an 63 

See my paper “Standards of Evidence in Scandinavia” in this book p.  135–159. See section III.1 above. 65  Kaye, fn.  6 , p.  2 2. 66  See for ex Brilmayer and Kornhauser, Quantitative Methods and Legal Decisions, The University of Chicago Law Review (vol.  46) 1978–1979 p.  116–153 (on p.  136). 64 

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appeal court’s decision to annul judgments, a judge will not have access to such feedback mechanisms as are available under other circumstances. When firing a gun, for instance, you can easily check whether the gun is well calibrated by looking at the target at which you are shooting. If most of your hits are an inch too high, you can simply adjust the gunsight. In a judicial system where neither a judge nor an appeals judge has access to the truth, such feedback mechanisms are far less effective. 67 At best, the adjustments work indirectly by comparing a judge’s evaluation of evidence to what is regarded the best way of evaluating evidence, and such mechanisms are hard to accomplish by an appeals court, for instance, because the written judgments which are subject to appeal normally contain very modest and non-detailed descriptions of the evaluation of the evidence. However, empirical researchers have disclosed patterns in the judges’ evaluation of evidence that seem to reveal a contrast between the prescriptive patterns for a rational evaluation of evidence recommended in Bayesian theories and the modes of reasoning found in practice. While a Bayesian theory finds an evaluation of evidence rational only if it is in line with axioms, theorems and other rules of classic theories of probability,68 empirical research suggests that the evaluation of evidence in practice is more akin with a story-model mode of reasoning. 69 One such important contrast seems to be the following: A Bayesian theory insists that the probability of a proposition (x) is always 1 minus the probability of its negation (non-x), thereby phrasing a standard of evidence as more-probable-than-not (x vs non-x) and requiring that the evaluation of the evidence takes into account all possible versions of the world included in non-x. Empirical research, on the other hand, seems to suggest that the evaluation of evidence in practice is more concerned with comparisons of concretized versions or complete stories (x vs y) and the internal or external qualities of such stories. Apparently, these empirical findings should cause concern to anyone arguing that a more-probable-than-not standard maximizes the number of materially correct verdicts, at least if the argument is about expected effects in real life. If the judges evaluate the evidence in a pattern which is not in line with the mode of reasoning being described in the very same theory, it is hard to accept a Bayesian theory saying that judges’ application of a more-probable-than-not standard will lead to the highest number of materially correct verdicts. Typically, proponents of Bayesian theories acknowledge that the story model or other holistic or coherency-based theories provide us with adequate descrip67 

Compare Kaye, fn.  6 , p.  23. See section II.2 above. 69 F ex Hastie/Penrod/Pennington 1983 p.   37–58, Pennington/Hastie 1991 p.  519–557, Pennington/Hastie 1993 p.  192–221, Wagenaar, van Koppen and Crombag, Anchored Narratives: The Psychology of Criminal Evidence, Hampstead 1993, Kolflaath, Bevisbedømmelse i praksis [Evaluation of evidence in practice], Bergen 2013 p.  93–158. 68 

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tive theories, but not with a good normative or prescriptive theory.70 Although such a distinction between descriptive and normative theories is mandatory, for instance to make clear that the backing of the story model from empirical research does not justify that such a model will maximize the number of correct verdicts,71 findings from empirical research are still relevant in the examination of whether a certain standard of evidence will maximize the number of correct verdicts in practice. While some simplifications taken by judges compared to the highly advanced Bayesian theories may not cause concerns for the more-probable-than-not standard’s maximization of materially correct verdicts,72 it is hard to accept that such a standard has such an effect if judges in practice apply a completely different mode of reasoning than what is prescribed by Bayesian theory. Such deviations would be difficult to adjust, especially since the story model line of reasoning may to some extent be psychologically unavoidable, and a tendency for comparing concretized versions instead of one version versus its negation is due to the fact that most parties will provide the court with one or a few concretized versions because such a strategy works better.73 As most of the empirical research mentioned above is conducted within the American legal system and/or concern criminal proceedings, there is a chance that the mode of evaluating evidence is somewhat different in European civil cases, and one cannot rule out that the mode of reasoning varies quite a lot within a legal system, depending on the factual matters in question. Such variations between legal systems or within a legal system are even more likely for the socalled multiplication problem, which inter alia may be affected by the structure of proceedings in a court system: 5. Problems concerning multiple factual matters The multiplication problem is relevant whenever several factual issues, under one or several legal requirements, must be proved before a specific legal effect is justified. This problem, now and then phrased as “the multiplication paradox”, is one of the most contested issues for judicial theories of evidence and proof.74 70 

F ex Schweitzer, fn.  6 , p.  348. Schweitzer, fn.  6 , p.  345–346. 72  See f ex Kaye, fn.  6 , p.  21–23. 73  See section II.3 above. 74  See f ex Cohen, fn.  14, p.  58–68, Brilmayer/Kornhauser, fn.  66, p.  145–146, Eggleston, fn.  15, p.  30–49, Allen, fn.  52, p.  405–408, Allen, fn.  29, p.  373–375, Levmore, Conjunction and Aggregation, Michigan Law Review (vol.  99) 2000–2001 p.  723–756, Stein, Of Two Wrongs That Make a Right: Two Paradoxes of the Evidence Law and Their Combined Economic Justification, Texas Law Review (vol.  79) 2000–2001 p.  1199–1234, Stein, fn.  13, p.  128–129. This problem is rarely discussed in German literature, but quite often in Norway, see Scheel, Grunntrekk av læren om bevisbyrden [Basic characteristics of the burden of proof doctrine], Bilag til Tidsskrift for Rettsvitenskap, Oslo 1938 p.  16–17, Eckhoff, fn.  45, p.  92–105, Nygaard, Hagen og Nome, Årsak og bevis ved ansvar for skade [Causation and evidence in cases con71 

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I will not broach that massive discussion, but I will highlight the potential implications of the multiplication problem for an argument saying that the moreprobable-than-not standard maximizes the number of materially correct verdicts. To understand the multiplication problem’s relevance for that argument, we must recall that if a Bayesian theory of evidence and proof justifies a standard of evidence by its ability to produce a higher number of correct verdicts the very foundation for that argument is to minimize expected losses, and those costs are consequences of materially incorrect verdicts. Whether a verdict is materially correct, I assume, depends on whether that verdict would have been declared had the relevant substantive law been applied to all relevant facts. Whenever several conditions must be met before a substantive claim arises, all conditions must of course be met before a verdict in accordance with such a claim is materially correct. Let us consider a tort case where a plaintiff claims for 500.000 EURO in damages from the defendant because a loss of income is alleged to have been caused by the defendants’ wrongdoing. If such a case is to be based on Norwegian tort law, we may say that seven conditions must be met before a verdict of 500.000 EURO in damages may be declared: – Wrongdoing – Causation – Injury –  Loss of income –  No contributory negligence –  No reduction of damages –  No prescription If all seven matters are uncertain in the case considered, the probability of a verdict of 500.000 EURO being the materially correct outcome depends on the joint probability of all seven matters. According to the classical theories of probability, the so-called multiplication rule shall apply when one assesses the probability of several propositions or events all being true.75 The probability, then, for two independent propositions (x1 and x 2) both being true is the probability of x1 multiplied with x 2. If the probability of x1 is 70 % and the probability of x 2 is 70 %, the joint probability for x1 and x 2 is 49 %. If the propositions are dependent, which means that the probability of one of the propositions affects the probability of the other proposition, the multiplication effect is lower because one then must adjust for the dependency effect. Without dealing with the cerning liability for damage], Oslo 1986 p.  107–122, Kolflaath, Sannsynlighetsovervekt og kumulering av tvil [Preponderance of probability and cumulation of doubt], Lov og Rett 2008 p.  149–165, Strandberg, fn.  52, p.  407 ff., Hov, fn.  45, p.  1168–1173, Skoghøy, fn.  45, p.  938–944, Jerkø, fn.  47, p.  418–440. 75  F ex Stein, fn.  13, p.  41.

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technicalities and details on the mathematics of several dependent propositions, an important and general basic point is that whenever the number of necessary factual elements increases, their joint probability decreases. If the goal is to minimize loss resulting from materially incorrect verdicts, a rational decision maker shall decide whether to declare a specific verdict after having computed the joint probability for all elements necessary for such a verdict. If a rational judge is to decide in the abovementioned tort case, the goal of minimizing the risk of a materially incorrect verdict should, according to the Bayesian theory, imply that a verdict of 500.000 EURO in favour of the defendant shall be declared if and only if it there is a preponderance of probability in favour of a joint proposition containing all the seven elements. In practice, however, a judge in such a tort case will probably not compute a joint probability for all seven elements. There are very many reasons for this, of which I will just mention a few. Since such reasons may vary considerably from one ­jurisdiction to another, I will use examples from my own jurisdiction. In Norway, a joint probability for all seven elements will be hindered by these factors: Quite often, there is a need for split proceedings. A judge may, ex officio or after application by a party, split the proceedings so that some legal matters are decided upon first while other matters are dealt with afterwards if the first matter was concluded in the affirmative. Norwegian tort cases are often split into several parts; the code of civil procedure contains a provision explicitly saying that the court may first decide whether tort liability exist between the parties and then deal with assessment of damages, contributory damages and reduction of damages afterwards (if the court concluded that liability exists),76 the code also provides the court with a general power to decide on matters separately.77 In practice, it is quite often found that the court deals separately with prescription, and it happens from time to time that the court for instance first decides on whether there are grounds for liability (strict liability, negligence and so on) while postponing matters of causation. In all situations where proceedings are split, the court of course deals with separate matters conclusively. If the court has concluded that there was negligence, the court will not reconsider that question when the matter of causation is dealt with. Even if the court was under doubt as to whether the standard of evidence under the matter of negligence was met, when dealing with the matter of causation the court will probably handle the matter of negligence as an established fact. A court may decide separately on certain matters even if proceedings are not split.  Dealing with matters separately may be required by the structure of the substantive law, for instance when a legal matter becomes relevant if and only if a specific conclusion is taken on another legal matter. This may happen if a sub76 

77 

The Norwegian Dispute Act §  16-1 (2) second sentence. The Norwegian Dispute Act §  16-1 (2) third sentence.

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stantive claim is based on either tort law or contract law, and a judge will then consider the specific grounds of liability contained in contract law only if he has concluded that the case is within the scope of that branch of law. One may also find quite a lot of situations where the burden of proof or the standard of evidence differs from one element to another. At least in Norwegian law, the tortfeasor has the burden of proof for all necessary facts concerning the basic requirements of liability, including the assessment of damages, while the opposite party has the burden of proof on facts concerning contributory negligence, reduction of damages and prescription. When the burden of proof is on the plaintiff for some elements and on the defendant for other elements, there will be different decision rules applied and thereby no common criterion to apply for the total case. Hence, judges must at least decide separately on the matters on which the tortfeasor has the burden of proof and on matters on which the opposite party has that burden. The hardest debate on the multiplication rule has been whether several matters that are necessary for establishment of liability shall be dealt with jointly or separately, for instance whether the issues a negligent action and of causation shall be dealt with in isolation or by finding a joint probability for both. In quite some jurisdictions, at least Germany,78 Sweden,79 England and the USA80 , the standard of evidence shall relate to single elements only. In Norwegian law, some argue in favour of finding a joint probability, 81 others argue in favour of regarding them separately.82 What is of importance when examining the effects of the more-probable-than-not standard, however, is what goes on in practice. While no thorough empirical research has dealt with these matters, my personal impression from reading Norwegian judgments is that courts do not assess joint liability for several factual issues when these issues are relevant under different substantive requirements. Recently, a colleague of mine and I analysed approximately 10 Norwegian lower court cases concerning damages following from errors made during public procurement.83 In such cases two basic conditions must be fulfilled; a severe mistake must have been made by the procure78 

See Kern, Probability as an Element of Standard of Proof in this book, p.  51–64. Ekelöf, Edelstam and Heuman, Rättegång IV [Proceedings IV], 7th ed., Stockholm 2009 p.  81, Diesen, Bevisprövning i dispositiva tvistemål [Assessment of evidence in dispositive cases), in: Diesen and Strandberg, Bevisprövning i tvistemål. Teori och praktik, Stockholm 2012 p.  264–265. 80 Zuckerman, Zuckerman on Civil Procedure. Principles of Practice, 2nd ed., London 2006 p.  753 point 21.34: the burden of proof relates to particular issues. Allen 2000 p.  256: “The law applies the burden of persuasion to each element, not to the conjunction of the elements.” 81  Eckhoff, fn.  45, p.  102, Hov, fn.  45, p.  1172–1173, Jerkø, fn.  47, p.  420–436. 82  Nygaard/Hagen/Nome, fn.  74, p.  109, Skoghøy, fn.  45, p.  941–943. 83  Fredriksen and Strandberg, Årsaksspørsmål ved krav om erstatning for tapt fortjeneste i anskaffelsessaker [Questions of causation in cases concerning liability for loss of profit in public procurement], Tidsskrift for Rettsvitenskap 2018 p.  141–205. 79 

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ment body, and the person seeking damages must prove that he would have won the contract had the mistake not been made. In none of the cases we analysed was there any sign of joint probability being assessed for these two elements, instead they were concluded separately and typically so that the court first dealt with whether the errors were severe enough to justify liability and then, if in the affirmative on the first question, dealing with whether the provider would have got the contract had the errors not been made.84 While the details on these matters are challenging, both theoretically and descriptively, the argument saying that the more-probable-than-not standard will maximize the number of materially correct verdicts faces serious trouble unless courts deal with all matters jointly. Because such a practice is very unlikely, the axioms on which the Bayesian theory is based seem to imply that the more-probable-than-not standard will likely not maximize materially correct verdicts.

IV. Arguments based on the consequences of an incorrect judgment An important element of the justification of the more-probable-than-not standard within a Bayesian theory of evidence and proof is that, in a typical civil case, the consequences of a materially incorrect verdict in disfavour of one party equal the consequences of a materially incorrect verdict against the opposite party.85 For some cases it is acknowledged, within this theory, that the consequences of a materially incorrect verdict may be substantially worse for one party than for the opposite party, for instance if damages are sought based on an allegation of a severe criminal act such as fraud.86 Hence, the standard of evidence may be higher in disfavour of one party to protect the opposite party against such a severe consequence; in US law, for instance, the intermediate standard “clear and convincing evidence” may be prescribed in such cases.87 Although proponents of Bayesian theory of evidence and proof recognize that the consequences of materially incorrect verdicts vary from one kind of case to another, a more-probable-than-not standard is recommended as the main rule because the consequences of a materially incorrect verdict is equal for the parties in a typical civil case. Whether the consequences of a materially incorrect verdict are regarded as equally bad no matter which party loses, is not an empirical matter, but a matter of ethics, morals or values. Decisive, then, are obviously not the subjective preferences held by each individual party; it must 84  The cases are: LF-2001-862, LH-2009-3900 (the parties agreed that the errors were severe), LB-2010-176631, LH-2010-1161-89, LB-2012-3677, LH-2014-189202, LH-2015-202363, LH-2015-102226, LA-2015-189076, LB-2015-29544. 85  See section II.2 above. 86  F ex Kaplan, fn.  15, p.  1072, Kaye, fn.  6 , p.  7. 87  F ex Kaplan, fn.  15, p.  1072.

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be more objective considerations of what is most appropriate within a given society and the established procedural and substantive rules of that society. 88 While such considerations may be both complex and determined by factors in each jurisdiction, an examination of the argument supporting the more-probable-than-not standard can be based on certain features that probably are common for civil trials in most European jurisdictions: A potential argument for regarding a materially incorrect verdict as equally bad no matter whether it hurts a defendant or a plaintiff is that the state should not care whether a dollar incorrectly stays in the plaintiff’s pocket or in the defendant’s pocket.89 Giving a dollar from the plaintiff to the defendant is as bad as giving a dollar from the defendant to the plaintiff. While such an argument may seem appealing at first glance, there is more to say on these matters.90 In fact, the actual consequences of a verdict vary quite a lot from one (type of) case to another. In a considerable number of cases, at least the immediate consequences of one type of error are just the same as the consequences would have been for the opposite party, for instance if two parties both claim the ownership of a property that is not possessed by either of them. In other civil cases, additional consequences follow if one of the parties loses but not if the opposite party loses: When a debtor is acquitted for a claim for payment, nothing happens after the verdict has become final.91 If the debtor loses, on the other hand, several additional consequences may materialize. Firstly, there may be continuing litigation after a verdict against the debtor, for instance if the first verdict was a declaratory judgment and the creditor thereafter must continue to assess of the exact sum of money to be paid. Secondly, there may be transactional costs connected to the debtor’s payment. These costs may be rather low in ordinary payment cases, but they can be high if the claim concerns ownership of a real estate or a company. Thirdly, enforcement may be a consequence if the creditor wins but not if the opposite party wins. When considering whether the consequences of a materially incorrect verdict are equally bad no matter who is hurt by it, it is especially important to recognize that enforcement typically takes place only if one of the parties wins and that enforcement normally requires the use of state power. Although I cannot go into such details as would be required in an adequate theory on standards of evidence in civil cases, the abovementioned factors at least indicate that the consequences of an error in disfavour of one party typically do not mirror the consequences of opposite or converse error. I am inclined to argue that these factors suggest that a higher standard of evidence 88 

Kaye, fn.  6 , p.  7–8. Ball, fn.  55, p.  817 90  For instance Kaye, fn.  6 , p.  6 –8. 91  There might be claim for costs, of course, but that is a separate claim distinct from the substantive claim in the case. 89 

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should normally be applied. Moreover, a typical civil case consists of an attack from one individual on another individual’s established factual or legal position; normally one party argues that due to the existence of certain historical facts, a new substantial right has been established in favour of this party towards the opposite party. Nevertheless, it is far from easy to decide who attacks whom in a certain category of cases that is normally dealt with by allocation of the burden of proof.

V. Simplification of the proof rules? Before leaving the subject, I will address a last argument that has been put forward to justify the more-probable-than-not standard. Several proponents of a more-probable-than-not standard argue that, if applied in all cases, it can replace the traditional burden of proof rules. Eckhoff put such an argument based on simplification of a legal system forward in the 1940s,92 Bolding adopted such a line of argument for Swedish law,93 which later influenced the German discussions from the 1960s onwards.94 Although one may enjoy the idea of abolishing the potentially complicated burden of proof rules, the ambition of getting rid of those rules is far too optimistic. Firstly, there is a need for a burden of proof rule when the parties’ propositions are equally probable on the evidence presented.95 One may argue that such a situation is unlikely. From a legal perspective, however, it seem sufficient to note the possibility for such a situation and that the handling of it depends on a choice between a burden of proof rule and a free discretion left to the judge. As the solving of such a situation will affect the division of risk between the parties, it is plausible to argue that there should be a binding rule for it,96 especially because the standards of evidence are based on such rules. Secondly, none of those legal systems applying the more-probable-than-not standard have got rid of their burden of proof rules. English law, for instance contains rules on the burden of proof even though the more-probable-than-not standard applies as a main rule.97 Norwegian law also contains rules on the 92  Eckhoff, fn.  45, p.  11–21, Eckhoff, Noen ord om bevisbyrde og bevisbyrdeteorier [Some words on burden of proof and burden of proof theories], Tidsskrift for Rettsvitenskap 1949 p.  298–320. The argument has been repeated, for instance, by Hov, fn.  45, p.  1151–1152. 93  Bolding, fn.  48, p.  86–120. Even modern Swedish literature tends to regard the application of a more-probable than-not-standard as a possible replacement for a burden of proof rule, see Ekelöf/Edelstam/Heuman, fn.  79, p.  78–79, Westberg, Civilrättskipning , 2nd ed., Stockholm 2013 p.  373. 94  See my paper “Standards of Evidence in Scandinavia” in this book p.  135–159. 95  F ex Zuckerman, fn.  8 0, p.  757, Skoghøy, fn.  45, p.  916. 96  F ex Dennis, fn.  1, p.  480–481. 97  Zuckerman, fn.  8 0, p.  752 ff., Dennis, fn.  1, p.  4 40, Keane/McKeown, fn.  1, p.  83.

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burden of proof. Even though the avoidance of the burden of proof was one of the most important theoretical underpinnings of Eckhoff’s defence of the moreprobable-than-not standard, later Norwegian theory and court practice has developed burden of proof rules that apply together with the more-probable-thannot standard.98

VI. Concluding remarks Although the more-probable-than-not standard is the established main rule in my domestic jurisdiction, I do not find the reasons fronted in favour of such a standard convincing. Basically, the arguments fronted by the Bayesian theory of rational decision making are purely formal. The overall criterion of maxi­ mizing expected utility or minimizing expected loss leads to nothing but formal proofs. The proofs for the expected utility of the more-probable-than-not standard may look like arguments that such a standard in fact leads to certain consequences, but they are not. Actually, there are no good reasons to believe that such a standard in fact will maximize the number of materially correct verdicts within an actual judicial system. Nor do I accept the argument that a materially incorrect verdict in a typical civil case is equally bad no matter whether the defendant or the plaintiff loses. When the consequences of trials are analysed, one reveals that there are typically consequences that materialize only if one of the parties wins.

98 

F ex Skoghøy, fn.  45, p.  916 ff.

National Reports Germanic Legal Family

Fact Finding under German Law of Civil Procedure Evaluating Evidence and the Relevant Degree of Certainty Hans-Jürgen Ahrens

I. German Statutory Law: Sections 286 and 287 ZPO The basic rules of the German Code of Civil Procedure concerning the assessment of relevant factual issues are laid down in section  286 and section  287 ZPO. 1. The Wording of the Statutes Section 286 ZPO Evaluation of evidence at the court’s discretion and conviction (1)  The court is to decide, at its discretion and conviction, and taking account of the entire content of the hearings and the results obtained by evidence being taken, if any, whether an allegation as to fact is to be deemed true or untrue. The judgment is to set out the reasons informing the conviction of the judges. (2)  The court shall be bound to statutory rules of evidence only in the cases designated in the present Code. §  286 ZPO Freie Beweiswürdigung (1)  1Das Gericht hat unter Berücksichtigung des gesamten Inhalts der Verhandlungen und des Ergebnisses einer etwaigen Beweisaufnahme nach freier Überzeugung zu ent­ scheiden, ob eine tatsächliche Behauptung für wahr oder für nicht wahr zu erachten sei. 2 In dem Urteil sind die Gründe anzugeben, die für die richterliche Überzeugung leitend gewesen sind. (2)  An gesetzliche Beweisregeln ist das Gericht nur in den durch dieses Gesetz bezeichneten Fällen gebunden. Section 287 ZPO Investigation and determination of damages; amount of the claim (1)  Should the issue of whether or not damages have occurred, and the amount of the damage or of the equivalent in money to be reimbursed, be in dispute among the parties, the court shall rule on this issue at its discretion and conviction, based on its evaluation of all circumstances. The court may decide at its discretion whether or not – and if so, in which scope – any taking of evidence should be ordered as applied for, or whether or not any experts should be involved to prepare a report. The court may examine the party tendering evidence on the damage or the equivalent in money thereof; the stipulations of section  452 (1), first sentence, subsections (2) to (4) shall apply mutatis mutandis. …

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§  287 ZPO Schadensermittlung; Höhe der Forderung (1)  1Ist unter den Parteien streitig, ob ein Schaden entstanden sei und wie hoch sich der Schaden oder ein zu ersetzendes Interesse belaufe, so entscheidet hierüber das Gericht unter Würdigung aller Umstände nach freier Überzeugung. 2Ob und inwieweit eine beantragte Beweisaufnahme oder von Amts wegen die Begutachtung durch Sachverständige anzuordnen sei, bleibt dem Ermessen des Gerichts überlassen.3 Das Gericht kann den Beweisführer über den Schaden oder das Interesse vernehmen; die Vorschriften des §  452 Abs.  1 Satz  1, Abs.  2 bis 4 gelten entsprechend.

2. Interpretation of these Rules The meaning of the two rules mentioned and their differences cannot be fully grasped only by taking its wording into account. In particular the following matters are a matter of dispute. a) Section 286 ZPO In the German version, the focus has to be laid on the words “frei” (= free) and “Überzeugung” (= conviction). Section 286 ZPO establishes the principle of free assessment of both evidence taken and the entire content of the proceedings unless stated otherwise by statutory federal law. Therefore the court is not constrained by any rules ranking different types of proof, but can evaluate the evidence produced independent of such type, rather with respect to its sound judgment and common sense. The principle is only modified with respect to specific types of documentary evidence. But as a general rule the court has to make its own decision about whether an alleged fact is true and the court is free in the conclusion it draws from evidence. b) Section 287 ZPO Section 287 ZPO is understood as an exception to section  286 ZPO. It deals with the assessment of damages and the causation of damages. The scope of application however, is disputed. Again, you find the words “frei” (= free) and “Überzeugung” (= conviction) which at least at first glance suggests that there is no difference to section  286 ZPO.

II. Degree of certainty 1. Difference between section  286 and 287 ZPO The main difference between the two sections cited refers to the degree of certainty to prove a fact. The degree of certainty determines whether the court may be satisfied that a contested fact is true or rebutted.

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The word “conviction” in section  286 ZPO provides a first argument for the relevant degree. Simple probability is usually not sufficient to prove a fact; the court must be convinced that the fact exists. The second argument derives from section  287 ZPO as a consequence by implication. The degree of certainty is generally believed to be more relaxed by section  287 ZPO relating to the assessment of damages and the causation of damage within the court’s discretion. 2. Conviction under Case Law According to German case law and speaking in general terms, there must be a degree of certainty which is “sufficient in practice and which silences any remaining doubts, without necessarily ruling it out entirely”. That is the standing judicature, based on a repeatedly cited ruling from the famous case of Anastasia who claimed to be the daughter of the last Russian czar but eventually failed before the Federal Supreme Court.1

III. Further implications of section  286 ZPO 1. Restrictions by logic and experience a) Sufficient written reasons as a safeguard Any written judgment must contain a brief exposition of the reasoning by which the court reached its findings regarding contested facts. That includes a description of the court’s evaluation. If you take a look at paragraph one sentence two of section  286 ZPO you read: The reasons for the court’s choice have to be explained in the judgement. b) Unwritten ties of assessment Naturally, the formation of a conviction by a judge takes place in his mind and is guided by rules that are subjectively set up by himself. Yet, following such process is not allowed boundlessly. Despite the wording of section  286 ZPO the court is not free to credit or discredit factual proof arbitrarily or whimsically. In fact, the subjective conviction of the truth of facts is insofar restricted and may be overruled by a court of higher instance.2 The reasons have to be justified by reference to either logic or experience. Logic in this context in particular denotes that the reasoning has to be consistent, i. e. free of contradictions. A further requirement is that the court has to take into consideration all submitted 1  2 

BGHZ 53, 245, 256 = NJW 1970, 946, 948. See for more details Ahrens, Der Beweis im Zivilprozess, 2015, Ch. 15 mn.  51.

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facts, which are relevant for the correct application of the law. Falling short of any of these requirements is a violation of section  286 ZPO. c) Reasoning under section  287 ZPO By contrast, under section  287 ZPO the court is required in its judgment to outline the factual basis for the assessment, but it is not required to provide a logical justification of the details. 2. “Entire content of the hearings” Notably, the determination whether contested facts are true does not only depend on the taking of evidence and its assessment. But they are also founded on the assessment of the entire content of the hearings. This is to be understood in a broad sense and comprises the entire conduct of the parties during all stages of the proceedings.3 Therefore it for instance is important, whether the parties did submit relevant facts in sufficient details or whether they changed their allegations during the proceedings – which often occurs depending on the presumed benefit of the current situation, but may lead to unexplained contradictions. It is similarly relevant, whether they did withhold information or in which way they dealt with witness and party privileges. If a party refuses to answer questions or refuses the production or inspection of documents or things, the court for example may draw a negative inference. The same inference may be drawn from the refusal of a party – or a witness associated with a party – to permit a third person to release confidential information. The likelihood and extent of such adverse inference will of course depend on the importance of the privilege and the perceived relevance of the information.4

IV. Submission of facts 1. Basis for the taking of evidence and its assessment If we now turn to the submission of facts by the parties in their preparatory pleadings and briefs the main issues are: Which party has to submit certain facts to back up their allegations, be it in the course of a statement of claim or the defence? And which party has to produce which piece of evidence? It is important to distinguish the question for the sufficient degree of certainty from the burden of proof. Nevertheless, there are indirect connections due to the submission of facts by the parties. The parties have to submit the facts and 3  4 

Ahrens, Der Beweis im Zivilprozess, Ch. 15 mn.  9. See for mor details Ahrens, Der Beweis im Zivilprozess, Ch. 8 mn.  138 ff.

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the evidence is only necessary as far as relevant facts are contested. The general rule is that each party bears the duty to present the facts supporting his attack or his defence. In this respect German law follows the acknowledged distinction that derives from the burden of proof and the dependent burden of fact allegation. 2. Function of the burden of proof and the burden of fact allegation The burden of proof in a literal meaning answers the question what will happen to a case if doubts remain with regard to essential facts. But this notion points in a more general way to which party has to offer evidence to prove contested facts. Furthermore, the burden of proof has an impact on the burden of fact allegation, although both burdens have to be distinguished because they do not necessarily run in parallel in every case. 3. Apportionment of both burdens According to German practice the burden of proof and the burden of fact allegation in general are assigned to the same party. The established principle in civil proceedings is that the issues have to be put forward by the parties while the court may not itself introduce material as a basis for its decision. Then after the submission of the parties it will be determined which facts are contested and accordingly have to be proven by evidence. Although the parties get their bearings by the burden of proof the duty to present facts does not run parallel to the burden of proof in each stage of the proceedings. 4. Shifted burden of fact allegation The general duty to act in good faith as a party in civil proceedings has been developed by judge-made law in respect to specify requirements as to the statement of facts if the claimant has no knowledge of facts that are in the control of the opposing party. We call it “sekundäre Darlegungslast” which means shifted burden of fact allegation.5 The initially not obliged party bears a duty to submit facts if the level of information is uneven in his favour and the statement can be reasonably expected of him, whereas the originally obliged party cannot get access to those factual points. The originally obliged party is not allowed to be passive in view of this ruling but has to use open available information even if that requires time, staff and money. The shifted burden is alternatively described as a duty to specify the contestation. It is derived from section  138 par.  2 ZPO.

5 

See for more details Ahrens, Der Beweis im Zivilprozess, Ch. 11 mn.  22 ff.

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V. Prima facie evidence, presumptions 1. Prima Facie Evidence A special way to relax the fact finding in civil cases is a factual conclusion based on prima facie evidence provided that there is no contrary explanation. We call it “Anscheinsbeweis”. May I add an example: The fact to be proved may be linked to a particular standard of care or to causation. Relying on ordinary experience the presence of a particular fact may lead to the inference that in absence of another explanation the responsible person didn’t adhere to the standard of care and therefore acted negligent; or the event caused another event e. g. a damage. For example, a car driver who hits a car driving in front of him absent any other explanation is simply presumed to have acted negligently. The acceptance of prima facie evidence related to certain circumstances of life justifies the fact finding not only in a particular case but in all situations of similar kind. That leads to a uniform appraising of the pre-described circumstances by all courts. There are two differences as compared to ordinary circumstantial evidence: the first is that prima facie evidence has a binding effect, the second is the possibility to put the conclusion under review. The German Federal Supreme Court will hear an appeal although this court’s competence in general is restricted to matters of correct application of the law, but does not take evidence. Nevertheless, a court has the opportunity to deviate from the factual consequences that seem to be established at first glance (or prima facie) whenever peculiar circumstances cast doubt upon the conclusion. In this case the party that bears the burden of proof has to, but on the other hand is allowed to give full evidence on the point of controversy. Whether the standard for forming a conviction is reduced by admitting prima facie evidence is a matter of dispute. The courts hold that it is in line with the high standard of certainty required under section  286 ZPO. 6 2. Presumptions Another means of avoiding lengthy fact finding are legal presumptions. Factual assertions are not required to be proven if they are subject matter of presumptions. But I have to make two reservations: First, the facts that invoke presumptions in themselves may be the subject of proof. And second, the result may have a preliminary character because the opposing party can attempt to prove the nonexistence of the presumed fact under certain conditions. We have to distinguish two kinds of presumptions: those that are established by statute law and those that are judge made. 6 

See for more details Ahrens, Der Beweis im Zivilprozess, Ch. 16 mn.  12 ff.

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a) Section 292 ZPO Section 292 ZPO refers to statutory presumptions, which are part of a rule of substantive law. The wording is as follows: Section 292 ZPO Legal presumptions Should the law make a presumption as to a certain fact being given, its opposite may admissibly be proven unless otherwise provided for by the law. …

It depends on the relevant statute whether the presumption of law is refutable or not. But in any case, the presumption excludes the free assessment of evidence. Presenting evidence to the contrary – if allowed by the relevant statute – requires a complete proof. If successful this has the effect to shift the burden of proof to the opposing party. This is a higher standard. Insofar the evidence by a statutory factual presumption has more strength than prima facie evidence, which may be set aside by mere doubts. b) Judge made presumptions In addition to statutory presumptions there is a second category. Sometimes the Federal Supreme Court establishes refutable factual presumptions on its own initiative. Whether this is permissible is questionable, because the Federal Supreme Court is not competent for the finding of facts on the merits apart from prima facie evidence. I can provide the recent file-sharing cases as example. The holder of an internet connection was held liable for illegal downloads of protected music, movies or games by using a peer-to-peer network even though the copyright owner was only able to establish the internet address by which the download was carried out and that the internet account indicated by the respective IP-address at the time of the download was assigned to the defendant. But the claimant was not able to investigate – leave alone provide any proof – that the defendant had been the person using the computer. This hurdle was overcome by a presumption: According to the case law the holder of the internet connection is presumed to have carried out the download if no other person could have used the connection.7 As it seems reasonable to suppose that third persons are permitted to use the computer and its connection to the internet arguably there is no basis for a prima facie evidence. 8 But according to the Federal Supreme Court the holder of the internet connection bears a shifted burden of fact allegation. He has to state which other persons in his 7  BGHZ 200, 76 = NJW 2014, 2360; BGH, 12.5.2016, I ZR 48/15 – Everytime we touch mn.  32, NJW 2017, 78; BGH, 6.10.2016, I ZR 154/15 – Afterlife mn.  14, GRUR 2017, 386. 8  BGH, 6.10.2016, I ZR 154/15 – Afterlife mn.  19 f.

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household have been using the same computer and may seriously be taken into account as users at the relevant time.9 c) Variety and Scope of Presumptions in different Jurisdictions As the Court of Justice of the European Union has recently acknowledged the theory and practice of factual presumptions is an unexplored field of comparative law. This case the European Court of Justice decided in June 201710 concerned Sanofi’s product liability for damage suffered by a person after a vaccination against hepatitis B. In his Opinion dating March 7 2017 the Advocate General Bobek wrote (mn.  28) “that at first glance identically sounding or translated notions are understood, and in fact operate, rather differently in the various national legal systems”. 3. Similar standardized assessments of facts Lacking solid empirical rules of either science or life that are able to back up a prima facie evidence we have to base fact finding on circumstantial evidence. Despite fluctuating circumstances, we feel the necessity to avoid diverging assessments in recurring situations of life which are merely due to which judge happens to be competent in an individual case. However, by which means the outcome of proceedings might be brought into line is yet uncertain and un­ explored. Relevant case groups for example concern the suspicion of faked car accidents or the false claiming of insured sums after having lost things by theft. There is a general tendency to be satisfied with the outward impression of a burglary or a robbery if circumstances that indicate such an event are proven under section  286 ZPO.11 In medical malpractice cases the medical files are important for the proof of the medical examination, the ordered treatment and the patient’s information before getting his consent. The Federal Supreme Court ruled that files should be trusted in if those files had been kept in time and orderly.12

9  BGH, 8.1.2014, I ZR 169/12 – BearShare mn.  17; BGH, 12.5.2016 – I ZR 48/15 – Everytime we touch mn.  33. 10  Court of Justice, 21.6.2017, C-621/15 on Art.  4 of Directive 85/374/EEC of 25 July 1985 (Liability for defective products): Preclusion of evidentiary rules based on presumptions according to which the existence of a causal link between the defect and the damage suffered by the victim will always be considered to be established when certain predetermined causation-related factual evidence is presented; such presumptions are contradicting the statutory distribution of the burden of proof that has to bear the victim. 11  Ahrens, Der Beweis im Zivilprozess, Ch. 15 mn.  61 f. 12  Ahrens, Der Beweis im Zivilprozess, Ch. 15 mn.  63.

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VI. Boundary between sections 286 and 287 ZPO 1. General remarks: First affectedness as delineation The boundary between facts subject to the full conviction standard under section  286 ZPO and the relaxed standard under section  287 ZPO is subject to a dispute. I therefore only make reference to the standpoint of the judiciary. The Federal Supreme Court has established the practice that a claimant in a first step must fully convince the court that he was actually “affected” by the act or omission of the defendant. Once the affectedness has been proven to the complete conviction of the court according to the standard under section  286 ZPO, the relaxed standard of section  287 ZPO then in a second step applies to the determination of the extent of the affectedness and the numerical assessment of money damages and to causation links. 2. Affectedness in personal injury cases a) Distinguishing two kinds of causation If the affectedness concerns the death of a person, the injury of a human body, the loss of personal freedom or the infringement of property rights, i. e. by an intrusion upon objects protected by section  823 par.  1 BGB, the German Civil Code, the standard of proof for the injury or infringement is section  286 ZPO. The causal link between the action of the tortfeasor and the affected protected interest is called “haftungsbegründende Kausalität” which is best explained as the link establishing liability. The consequences of the claimant’s affectedness which he suffered as a result of the violation of his protected interest then merely have to meet the more ­relaxed standard under section  287 ZPO. This applies to both the sustained damage and to the link between the infringed right and the damage. This link is called “haftungsausfüllende Kausalität” which may be explained as consecutive causation. b) Especially: Second bodily harm It is noteworthy that damage in this concept may not only encompass economic loss. It may as well be a second bodily harm which follows after first injury. Such enlargements of the suffering of a victim very often happen in medical malpractice cases. In such cases the link between the first injury and the second harm often may be heavily disputed because the cause of biological events within the human body is not under complete medical control. Again the proof of this causation is relaxed by applying section  287 ZPO.

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3. Affectedness in cases of pure economic loss If by contrast there is no infringement of a victim’s protected right within the meaning of a causal link between the offending conduct of a tortfeasor and the damage the victim suffered then any compensation sought is for pure economic loss. That refers to cases against defendants who are reproached for other unlawful acting or for neglecting a contractual duty of care. In these cases it is extremely difficult to define whether a party is first affected. Roughly speaking you may equate it with the neglected duty. 4. Claim for lost profits If lost profit is the subject matter of a claim a further statutory regulation has to be applied. Section 252 BGB grants a refutable presumption which supplements section  287 ZPO. The statutory regulation reads as follows: Section 252 BGB Lost profits The damage to be compensated for also comprises the lost profits. Those profits are considered lost that in the normal course of events or in the special circumstances, particularly due to the measures and precautions taken, could probably be expected.

5. Examples a) OLG Dresden, 10.1.2017 – 4 U 693/16 (Bodily harm of a car accident) 13 Again, I will explain the legal practice by some cases. The first case I would like to address was decided by the Appellate Court of Dresden. Immediately after a car accident, which had been caused by the defendant, the plaintiff complained about a distortion of his toes. Three days later he further complained about a distortion of his cervical vertebra. It was contested whether there was a causal link between the alleged second distortion and the car accident. The court ordered the taking of evidence by an expert witness. The expert opinion stated that due to the amount of the possible acceleration of the head and further circumstances there were more arguments in favor of than against a slight distortion of the neck. However, the court ruled that mere probability was not sufficient under the rule of section  286 ZPO. Section 287 ZPO could have been applied if the distortion of the harm for the head might reasonably be the result of a first harm of the plaintiff’s body that previously had been proven under section  286 ZPO. But it couldn’t reasonably be taken into consideration that there was a link between the distortion of the toes and the alleged second harm. 13  OLG Dresden NJW Spezial 2017, 171. In the same sense ruled BGH NJW 2013, 3634 mn.  8 in a case of cervical vertebra distortion.

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b) BGH, 16.7.2015 – IX ZR 197/14 (Lawyer’s liability) 14 My second example is taken from a case on lawyer’s liability. The plaintiff claimed damages from his lawyer alleging that the later had ­given wrongful advice relating to the proposal of a sales contract when selling the plaintiff’s undertaking. The lawyer had chosen a sophisticated clause to secure the payment of the price, which was later declared null and void. A diligent lawyer’s advice should have provided the plaintiff with two alternative options to secure the sellers interest. The lawyer thus neglected his duty to propose a sales contract that was effective in every item. The failure to comply with a professional duty of care has to be proven by the client. Here section  286 ZPO applies. By the way, the same requirements apply to medical malpractice cases. The patient has to prove the doctor’s negligence. It is however irrelevant whether the duties derive from liability in contract or in tort. In the cited case on lawyer’s liability the evidence of the plaintiff’s damage and the causal link between the failed duty and the damage was relaxed according to section  287 ZPO. When applying section  287 ZPO the discretion of the court nevertheless has to be based on tangible grounds. That becomes difficult if the reaction of a client to a lawyer’s advice has to be enlightened. A former head of the lawyer’s indemnity insurance department of the Allianz Insurance Corporation once wrote in a handbook on lawyer’s liability that during her long lasting professional career she had seen all kinds of stupidity and stubbornness on the part of the client that one may imagine. To find out which hypothetical decision a client might have made after having received a hypothetical correct advice is a subject of great uncertainty. The German Federal Supreme Court applies a prima facie evidence in this situation by presuming that the client would follow a correct advice if this is the only economically rational option. But that hypothesis is barred whenever the client has several options how to decide. In this case it is the client who has to present and prove the circumstances for the mostly probable reaction. c) BGH, 12.7.2016 – KZR 25/14 (Damages after boycott conduct) 15 My last example is a decision of the Federal Supreme Court on damages in an antitrust case following a decision of the German Federal Cartel Office that found the national lottery corporations guilty to have agreed on a boycott imposed on the plaintiff. The decision of the Cartel Office to impose a fine on the lottery corporations had been confirmed by the courts in previous proceedings. So, the plaintiff’s claim for damages at a minimum of about 8 mio. Euros was a follow-on case. 14 

15 

BGH VersR 2016, 727. BGH NJW 2016, 3527 – Lottoblock II.

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The national lottery is organized by lottery corporations that are established separately in each German Federal State. Some of them are state-owned, some have private shareholders. All of them are licensed by the competent State. They are cooperating under an agreement called Lottoblock. The game contracts with the gamblers are arranged by a system of agencies that was built up by the different lottery corporations. Very often you will find the agencies in news­ paper shops. The lottery corporations have to be loyal towards these small undertakers. A decade ago the monopoly position of the Lottoblock was attacked by private undertakings seeking to organize competing lotto gambling on their own. The German States tried to defend their monopoly by the argument that gambling has to be restrained in order to protect people from excessive gambling. But probably the real ground was to keep the possible profit of the corporations undivided, because the surplus is used for social and cultural purposes. The plaintiff in the Lottoblock case didn’t want to organize gambling on its own but to arrange gambling contracts on a commission basis with the lottery corporation of North Rhine-Westphalia which would have resulted in competing with agencies of the lottery corporation. The legal committee of the Lottoblock recommended the lottery corporations to refuse the offer of the plaintiff. Nevertheless, the plaintiff electronically negotiated gambling contracts after having gained injunctions for providing necessary interfaces. The decision of the Cartel Office in favour of the plaintiff that the denial infringed both national and European Union cartel law was binding on the follow-on claim for damages but the courts had to clarify the scope of that binding effect. The dispute in particular concerned the relevant time period to which the binding findings applied. The Federal Supreme Court ruled that there was no binding effect from January 1st 2006 onwards until the end of 2008 when a new regulation came into force and the plaintiff gave up its undertaking. That means that it had to be proven whether the original recommendation of the Lottoblock’s legal committee was effective for the ongoing denial of the lottery corporation. The lottery corporation claimed that the recommendation no longer influenced its business conduct after the decision of the Cartel Office had been delivered in August 2006 although the lottery corporation sought relief against the decision of the Cartel Office. The Federal Supreme Court ruled that a factual presumption had to be applied in correspondence with the decision of the European Court of Justice in the case “Anic Partecipazioni” from 1999.16 It is presumed that undertakings continue their conduct upon which they had agreed earlier. The defendant objected that in view of the decision of the German Cartel Office the legal com16 Court of Justice, 8.7.1999, C-49/92 P mn.   121 and 126. See also Court of Justice, 21.1.2016, C-74/14 – Eturas UAB and others/Lietuvos Respublikos konkurrencijos taryba, mn.  33, GRUR Int 2016, 381 and NZKart 2016, 133.

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mittee had cancelled its former recommendation. Nevertheless, the Federal ­Supreme Court confirmed the ruling of the appellate court that the circumstances didn’t hint to a serious and final opinion of the committee. The defendant brought further objections challenging the presumption. In addition, the corporation stated that it could deny a co-operation with the plaintiff in accordance with the law because it was allowed to protect its own system of agencies for contracting with gamblers. Yet, the Federal Supreme Court ruled that the presumption was not refuted by this objection. With a third objection, the defendant argued that the notification of a decision of the Cartel Authorities destroys the link between the unlawful agreement and the business conduct after the notification. The Federal Supreme Court in general accepted this objection but denied it in the individual case. The second major problem was to ascertain the plaintiff’s alleged lost profits. The Supreme Court didn’t confirm the award of about 11 mio. Euros by the appellate court although section  287 ZPO and in addition section  252 BGB were to be applied. Whether the plaintiff was affected by the unlawful agreement had to be ­proven under section  286 ZPO. That was no problem due to the binding findings of the Cartel Office. The causation of the unlawful conduct for the plaintiff’s damages had to be proven under section  287 ZPO. The Supreme Court backed up the relaxation of standards by arguing with the requirements of the Cartel Damages Directive 2014/104/EG and its legal concept of effectiveness. The rest of the judgment’s reasoning refers to the weighing of circumstances of the individual case.

Proof of Causation in German Tort Law Christoph Althammer and Madeleine Tolani

I. Introduction Generally, a party must demonstrate and prove the facts favouring that party’s claim or defence. For instance, if a plaintiff seeks recovery for damage he suffered from wrongful conduct, he must demonstrate and prove all elements of the claim, including the element of causation as a fundamental principle. A fact is only proven if it meets the required standard of proof which is the degree of persuasion the judge must feel. According to the principle of ‘free evaluation of proof’, established by §  286 ZPO (Civil Procedure Code), the court is to decide according to its free conviction whether the factual assertation is to be regarded as true or as untrue. The ordinary required standard in German law is the ‘full conviction of the court’ which stands in contrast to the lower ‘preponderance of evidence’ standard of U.S. law. If we focus on tort law, we can say that there is no liability without causation.1 In all Western legal traditions, a link between the defendant and the harm suffered by the plaintiff must be established.2 Causation functions like a filter.3 However, causation raises particular problems because it is often difficult to prove in practise. This difficulty results not only from the fact that the past cannot be repeated, but also that in rare types of tort, the causal nexus will be accessible to direct perception. For instance, it cannot be objectively observed if driving too fast was a cause of an accident.4 Or imagine a case involving the ­initiation of a disease.5 The element of causation will often consist of a set of different single and multi-staged facts which individually cannot be proved. The conclusion that x was a cause of b involves inferential reasoning6 , prognoses and evaluating considerations (wertende Überlegungen). Imagine a case where both an act of the tortfeasor and some independent act of the victim have contributed to the damage or a situation where some physical condition of the vic1  Infantino, Causation theories and causation rules, in Bussani/Sebok (ed.), Comparative Tort Law, Cheltenham, Northampton, 2015, p.  279 ff. 2  Infantino, p.  282. 3  Magnus, Causation in German Tort Law, in Spier (ed.), Unification of Tort Law: Causation, The Hague, London, Boston, 2000, p.  63 ff. 4 Compare Steel, Proof of Causation in Tort Law, Cambridge 2015, p.  67. 5  Steel (note  4), p.  67. 6  Steel (note  4), p.  66.

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tim influenced the impact or extent of the tortious act and the damage.7 There will always be gaps in the proof of causation and therefore it can be stated that the proof of causation tends to be more uncertain than the proof of all other elements of a claim.8 This paper deals with the problems of standard of proof of causation in the context of German tort law and will focus on different ways of mitigating the full conviction standard to facilitate the proof of causation.

II. Definition and categories of causation in German tort law In the context of German tort law, the general rule §  823 I BGB (German Civil Code) provides, ‘If a person intentionally or negligently unlawfully injures the life, body, health, freedom, property or some other specific right of another, that person is under a duty to compensate for the loss resulting from the injury.’ All elements of such a claim must be demonstrated and – if the factual assertation is contested – be proven by the claimant. This includes the element of causation which generally, without considering specific causal theories,9 can be understood as the judgment that one condition results from another. It is extremely important to note that German law does not operate with only one nexus between the defendant’s activity and the plaintiff’s loss. Unlike other legal systems,10 such as U.S. tort law, German civil law dogmatically distinguishes between two categories of causation: first, the causation between the particular defendant’s wrongful conduct or a source and the infringement of the victim’s right, which is called ‘liability establishing causation’ (‘haftungsbegründende Kausalität’) and second, the causation between the infringed right and the damage, the ‘liability implementing causation’ (‘haftungsausfüllende Kausalität’). For instance, we have to distinguish between the causal link between a tortious act and a corporal injury on one hand and the causal nexus between the corporal injury and the cost of recovery on the other hand.11 The distinction between two different levels of causation has significant procedural consequences in terms of the standard of proof even though it is sometimes hard or even impossible to make the distinction in practise where the in7 

Magnus (note  3), p.  67. Weber, Der Kausalitätsbeweis im Zivilprozess, Tübingen 1997, p.  259. 9  In general German Courts base their causation on three theories: on the conditio sine qua non formula (Äquivalenztheorie), the adequacy test (Adäquanztheroie) plus policy considerations among which the protective purpose rule (Schutzzwecktheorie) is the most common. Magnus (note  3) p.  66. 10 Compare Gottwald, Schadenszurechnung und Schadensschätzung, München 1979, p.  22; Weber (note  8) p.  116. 11  Magnus (note  3), p.  63. 8 

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jury itself is the damage.12 The causation between the conduct and the injury must be proven to the level of full conviction of the court according to §  286 ZPO, but can be facilitated by the doctrine of prima facie proof.13 Prima facie proof allows the judge to rely upon a generalisation. The requirement for the causation between the injury and the damage (liability implementing causation) is relaxed according to the special provision of §  287 ZPO14 and the use of prima facie proof.15 Thus one must analyze precisely what exactly is in dispute between the parties.

III. Different solutions to facilitate the proof of causation The burden of proof lies on the claimant; he must convince the court and this may be difficult in practise. One must consider that procedural law aims at enforcing substantive law. Therefore, the legal protection and possibilities the substantive law offers should not be restricted by procedural and evidentiary law such that the claimant cannot assert his right at all. The legal system has adopted different ways of facilitating the proof of causation. This can be done either by shifting the burden of proof or by mitigating the standard of proof. 1. Shifts of burden of proof Shifting the burden of proof means that the burden placed on the plaintiff is moved to the defendant. The heavy burden of proof for the element of causation can be shifted in specific cases, such as malpractise in the medical context. Case law has recognized shifts of burden of proof of causation under the specific circumstances of a gross or severe error (grober oder schwerer Behandlungs­ fehler) in treatment.16 The reversal of the burden of proof in the medical context has been codified under §  630 h V S.  1 BGB using a legal presumption. If the defendant professional has committed a gross error in the medical treatment, causation will be presumed. Technically this means that the claimant only need to demonstrate the gross error as the basis of the presumption. It then falls to the professional to prove that the gross error was not the cause of the injury §  292 12 

Magnus (note  3), p.  63 f. This is disputed controversially. 14 MüKoBGB/Oetker, 7th ed. 2016, §  249 mn.  494: “Die Möglichkeit eines Anscheinsbeweises kommt beim Kausalitätsbeweis vor allem bei der haftungsbegründenden Kausalität in Betracht; bei der haftungsausfüllenden Kausalität greift §  287 ZPO ein, ohne dass hierdurch ein Anscheinsbeweis ausgeschlossen ist.” 15 BGH NJW 2000, 734 (736): “Für die haftungsausfüllende Kausalität zwischen Haf­ tungs­grund und Schaden gelten […] die Beweiserleichterungen des §  287 ZPO und der Beweis des ersten Anscheins”. 16  Katzenmeier, Arzthaftung, München 2002, p.  439; BGH NJW 1956, 1835; BGH VersR 1956, 499; Steel (note  4), p.  200. 13 

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ZPO.17 However, the high standard of proof under §  286 ZPO makes proving that the gross error was not causative very difficult.18 It is important to note that German law does not recognize a comparable shift of the burden of proof in the context of product liability.19 Problems arise when multiple tortfeasors have acted and it remains uncertain which of the tortfeasors caused the damage20 . This situation of multiple tort­ feasors is governed by special rule §  830 BGB, but its legal character is disputed. §  830 (1) 2nd clause of the German Civil Code (BGB) should make it easier for an aggrieved party to enforce his claim for damages where several possible tortfeasors come into consideration for his injury, but where the real perpetrator cannot be reliably determined 21. Therefore, §  830 (1) 2nd clause regulates liability in cases of what is known as alternative causation. According to the Federal Supreme Court (Bundesgerichtshof) ruling, the following prerequisites must be met for section  830(1) 2nd clause to apply22: The provision can only be applied if (1)  the prerequisites for a tort are met regarding the elements of the offence in the case of every party involved, with the exception of the proof of causation of this tort for the injury of legal interests, and (2)  it must be certain that one of the persons acting caused the damage, and (3)  it cannot be determined which of them actually caused the damage.

Example: If it is conceivable that the aggrieved party, D, could be fully responsible for the occurrence of the damaging event himself in addition to parties A and B that were involved, section  830(1) 2nd clause cannot be applied. For section  830(1) 2nd clause to apply, it is not a prerequisite for the persons to consciously act jointly from a subjective point of view. Moreover, in the earlier ruling by the Federal Supreme Court it was required that the actions of the persons involved take place very close together in both space and time23. Today, this prerequisite is rightly dispensed with, because the difficulties described with regard to providing proof can also arise independently24. As a result, the provision helps the aggrieved party in a situation where although several persons meet the liability criteria in principle, the aggrieved party cannot provide proof of causation against any one party due to the number 17 

Steel (note  4), p.  200. Steel (note  4), p.  205. 19  Musielak, Die Schwierigkeit, einen Kausalitätsbeweis zu führen, in FS für Gottwald, München 2014, p.  465 ff. 20  Althammer, Schuldrecht III – Besonderer Teil: Gesetzliche Schuldverhältnisse, 2015, p.  180, 181; Magnus (note  3) p.  65. 21  BGHZ 142, 227, 239; Magnus (note  3), p.  65. 22  BGHZ 72, 355, 358; 33, 286, 292; Althammer, Schuldrecht III – Besonderer Teil: Gesetz­ liche Schuldverhältnisse, 2015, p.  180, 181. 23  BGHZ 25, 271, 274. 24  MünchKomm BGB/Wagner, 7th ed. 2017, §  830 BGB mn.  52. 18 

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of potential tortfeasors25. §  830 (1) 2nd is a simplification of the evidence, namely a legal presumption of causation which depends on closely defined conditions, but not an independent cause of action. Art.  3:103. of the Principles of European Tort Law (Proportional liability in the context of alternative causation), is an interesting rule in this context: “(2)  If, in case of multiple victims, it remains uncertain whether a particular victim’s damage has been caused by an activity, while it is likely that it did not cause the damage of all victims, the activity is regarded as a cause of the damage suffered by all victims in proportion to the likelihood that it may have caused the damage of a particular victim.”

2. Mitigating the standard of proof Another way to ease the proof of causation lies in a mitigation of the standard of proof. According to §  286 I ZPO, ‘the court is to decide upon consideration of the entire content of the arguments and the results of reception of evidence according to its free conviction whether a factual assertation is to be regarded as true or untrue. The reasons which led to the court’s convictions are to be stated in the judgment.’26 This is called the principle of ‘free evaluation of proof’. In order to determine a fact in dispute, the judge must be convinced that the fact exists, 27 which is the subjective element. The focus lies on the personal conviction of the judge;28 the judge must be convinced. However, this conviction must reach a certain degree or level which provides an objective aspect. This general level or standard of proof was established by the Federal Supreme Court (Bundesge­ richtshof, hereinafter BGH) in the year 1970 in the famous case Anastasia.29 The BGH held that ‘… in doubtful cases, the judge may and must be content with a degree of certainty useful for practical life that silences doubt without completely excluding it.’ The standard of proof is ‘full conviction’ meaning ‘near certainty’. This is much higher than the ‘preponderance of evidence’ applied in U.S. law. However, in the context of causation there are different ways to mitigate the standard of proof. This can be done by using a standard of probability under §  286 ZPO.30 It can also be done by using a reduced standard under §  287 ZPO, under which issues of the degree or of the causation of damage are to be determined by the court’s ‘free conviction in consideration of all circumstances.’31 25 Erman/Schiemann

2017, §  830 BGB mn.  7. Translation from Murray/Stürner, German Civil Justice, 2015, p.  307. 27  Murray/Stürner (note  26), p.  307. 28  This does not prevent methods of proof based on statistics, for instance blood tests or DNA-analysis, for certain types of cases, such as for the proof of paternity. Compare: BGH NJW 2006, 3416. 29  BGHZ 53, 245 ff. 30  Alsberg, JW 1929, p.  862, 863; compare: Weber (note  8), p.  56. 31  Translation from Murray/Stürner (note  26), p.  312. 26 

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A final option discussed is whether the procedural doctrine of the prima facie evidence can affect the standard of proof.

IV. Altering the standard of proof of causation in general by using the standard of probability One might argue that for proof of causation the standard of probability must suffice. This position is reflected in some older court decisions that operate with different terms of probability such as ‘high probability’,32 ‘probability complying with ordinary experience in life’33or ‘probability bordering on certainty’.34 Many of these decisions addressed special types of causation, such as hypothetical causality or causation by an omission.35 In newer judgments the BGH stressed the need for the conviction of the judge and some decisions even equate causation with other elements of the claim and therefore reject any reduction of the standard of proof of causation.36 However, there is a tendency in the literature towards a facilitation of the proof of causation37 and some authors argue for a mitigation of the standard of proof by using preponderance of evidence, either limited to certain forms of causation 38 or in general. Prütting argues that the proof of causation is always difficult und therefore, a reduced standard of proof must suffice. Prütting refers, inter alia, to substantive law, under which the standard of proof is sometimes explicitly reduced, e. g. §§  119, 2087 BGB, §  252 S.  2 BGB or §  52 BSeuchenG, 61 InfektionsSchuG.39 According to this opinion, the standard of proof of causation should be reduced to a preponderant probability due to a functional interpretation of the element of causation combined with an analogy of a series provisions.40

V. Altering the standard of proof under §  287 ZPO 1. General considerations That full conviction standard of proof is expressly mitigated by §  287 ZPO. As described above, German civil law distinguishes between two forms of causation. The special standard of proof under §  287 ZPO does not apply to the ques32 

Vorinstanz bei BGH VRS 16, 438; Weber (note  8), p.  48. BGH MDR 1951, 274; Weber (note  8), p.  48. 34  RGSt 51, 127; Weber (note  8), p.  48. 35  Weber (note  8), p.  48. 36  Weber (note  8), p.  49 referring to LG Aachen, JMBlNRW 1971, 70, 71. 37  Weber (note  8), p.  6 4. 38  Walter, Freie Beweiswürdigung, Tübingen 1979, p.  195 ff. 39 MüKoZPO/Prütting, 5th ed. 2016, §  286 mn.  47. 40 MüKoZPO/Prütting, 5th ed. 2016, §  286 mn.  47. 33 

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tion of whether the defendant has injured the claimant. For this, and for many other questions, the ordinary standard of ‘full conviction’ remains applicable. In the context of tort law and the provision of §  823 I BGB, the ‘full conviction’ standard must be applied to the element of liability, especially the unlawful act, omission, or negligence and the causation between the act, omission, or negligence and the specific injury (liability establishing causation). Thus, the claimant must prove the causal nexus between the conduct and the first violation of a legal interest.41 For instance, in the case of a rear end collision in a car, the causation of the first personal injury, for instance the spinal injury, must be proved using the standard of §  286 ZPO.42 However, for the question of damages and their extent, German courts use the standard of proof from §  287 ZPO according to which ‘… the court shall rule … at its discretion and conviction, based on its evaluation of all circumstances.’ This statute reduces the high standard of proof threshold for the question of whether damage has occurred and what the exact amount of compensation shall be. This covers the issue of the liability implementing causation.43 The rationale behind §  287 ZPO is to prevent the claimant from failing due to too high procedural requirements.44 2. The effect of §  287 ZPO Under §  287 ZPO, issues of the degree of or causation of the damage are to be determined by the court’s ‘free conviction in consideration of all circumstances.’45 But what does that mean exactly? This is left unclear46 and gives cause to examine the effect of the provision more closely. One must distinguish between (1) the effect on the assessment of proof by the evaluator, (2) the standard of proof and (3) the burden of proof.47 For the process of evaluation of proof, some decisions point out that the judge is more free in assessing the evidence.48 Other judgments state very generally that the procedure is less strict,49 that the provision allows a free assessment of the evidence not requiring full proof,50 or that it would permit the judge’s discretion to stretch beyond §  286 ZPO.51 41  BGH NJW 1993, 3073, 3076; VersR 1975, 540, 541; Stein/Jonas/Leipold 22nd ed. 2008, §  287 mn.  14. 42  Leipold, in Stein/Jonas/Leipold 22nd ed. 2008, §  287 ZPO mn.  14. 43  Murray/Stürner, (note  26), p.  312. 44 MüKoZPO/Prütting, 5th ed., 2016 §  287 mn.  1. 45  Translation from Murray/Stürner (note  26), p.  312. 46 Compare Weber (note  8), p.  50 ff. 47 Compare Weber (note  8), p.  51. 48  BGH NJW 2003, 1116 (1117). 49  BGH LM ZPO §  286 (B) Nr.  19; OLG Köln NJW 1992, p.  50. 50  BGH LM StVO §  9 Nr.  11. 51  BGHZ 3, 162, 175.

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For the standard of proof, the BGH is reluctant to a give precise answer.52 The standard §  287 ZPO imposes is generally considered to be less demanding than the standard under §  286 ZPO.53 The provision requires a lower level of conviction,54 which can be described as a ‘higher or significantly higher degree of probability’,55 ‘significant probability on sound basis’56 or ‘substantial probability’.57 Some commentators use negative wordings to describe the reduced standard,58 such as ‘no strict proof’ must be offered,59 ‘no strict, complete proof’60 must be conducted or ‘the high degree which §  286 ZPO requires would not be necessary’. 61 In cases of uncertainty, the case must be decided under the rules of burden of proof which are not modified by §  287 ZPO. 62 3. The application and scope of §  287 ZPO It is important to note that §  287 ZPO is applicable for second injuries, for instance further consequences of the first injury, e. g. the spinal injury. As a consequence, the standard of proof of resulting causality is not subject to the strict high standard which §  286 ZPO imposes though both provisions are closely interrelated. However, the boundary between the ‘full conviction’ standard of §  286 and the more relaxed standard of §  287 is disputed.63 Gottwald argues that the distinction between liability establishing causation and liability implementing causation is often difficult and random64 and therefore he assigns all issues of causality, including liability implementing causality, to the application of the standard of proof of §  287 ZPO. 65 Furthermore he argues that the standard that §  287 ZPO requires should be flexible. In his opinion, there should be no uniform standard of proof; instead a standard of proof that would vary based on 52 Compare

Weber (note  8), p.  51. Murray/Stürner (note  26), p.  312. 54  BGH NJW 2003, 1116 (1117). 55 MüKoBGB/Wagner, 7th ed. 2017, §  823 mn.  67; Stein/Jonas/Leipold ZPO 22nd ed. 2008, §  287 mn.  18, 43; BGHZ 4, 192 (196) = NJW 1952, 301 (302); BGH NJW 2003, 1116, 1117; BGHZ 159, 254 (257) = NJW 2004, 2828. 56  BGH LM ZPO §  287 Nr.  99. 57 Compare Musielak, Die Grundlagen der Beweislast im Zivilprozess, Berlin, New York, 1975, p.  123. 58  Weber (note  8), p.  63. 59  Hartmann, in Baumbach/Lauterbach/Albert/Hartmann, ZPO, 76th ed. 2018, §   287 ZPO mn.  2. 60  Strieder, in Baumgärtel, Handbuch der Beweislast im Privatrecht. Bd. 1, §  249 2nd ed. mn.  6. 61  Wieczorek, 4th ed. 2013, §  287 ZPO C. III. 62  Stein/Jonas/Leipold ZPO 22nd ed. 2008, §  287 mn.  43; compare Weber (note  8), p.  51. 63  Murray/Stürner, (note  26), p.  312. 64  Gottwald (note  10), p.  81. 65  Gottwald (note  10), p.  49 ff. 53 

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the circumstances of the case at hand would be preferable. 66 This means the judge would have discretion to determine the level of proof necessary to meet the conviction. 67 The consideration would affect §  286 ZPO as well; and therefore the special provision of §  287 ZPO would be redundant.68 However, according to the majority opinion and the settled opinion of the Federal Supreme Court, one must clearly distinguish between liability establishing causation and liability implementing causation. §  287 ZPO is only applicable for the latter. In the context of tort law this means that the question of if the claimant was injured concerns the liability establishing causation and therefore must be proven under the higher standard of §  286 ZPO. But, once one primary injury has been proven, all following damages beyond the primary damage and resulting from the same cause can be proven under the standard of §  287 ZPO. 69 In other words, if once a damage has been demonstrated and proven, the milder standard of §  287 ZPO is applicable to all further damages arising from the action. In order to determine the nexus between the injury and sub­ sequent damages under §  287 ZPO, the judge can reach their conviction by excluding other causes and can base the judgment on the finding that only one realistic cause for the damage might come into consideration. As a result, the tortfeasor is liable for the damage he caused and for consequential damages, if there is an adequate causal nexus.70 The causal connection is only missing if the subsequent damage is not a result from the original injury.71 According to some courts and scholars, but not the BGH, the declarations applying §  287 ZPO with regard to the amount of damages or to the causation are excluded from review by the appellate court on principle72 . Such a review is only possible in the case of genuine errors in law of the court of first instance.

VI. Altering the standard of proof of causation by prima facie proof 1. Prima facie proof in general The court can reach its conviction based on prima facie evidence (Anscheins­ beweis). The prima facie evidence is based on case law; and is considered to be a special kind of circumstantial proof (Indizienbeweis). Both affect the field of 66 

Gottwald (note  10), 215 f. Gottwald (note  10), p.  218. 68  Gottwald (note  10), p.  218, 245. 69  BGH NJW-RR 2009, 409 (410); BGH NJW 2003, 1116. 70  BGH NJW 2003, 1116 (1118). 71  BGH NJW 2003, 1116 (1118). 72  BGH NJW 2011, 1947; Roth, Neues Rechtsmittelrecht im Zivilprozess – Berufungs­ instanz und Einzelfallgerechtigkeit, JZ 2005, p.  174 ff. (177); Stein/Jonas/Althammer, §  513 ZPO mn.  7. 67 

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the consideration of evidence by the judge. Both facilitate the conduction of proof, but do not have the effect of a reversal of the burden of proof; the burden rests on the claimant; e. g. different from legal presumptions, the prima facie evidence and the circumstantial evidence do not belong to the rules governing the burden of proof even though all these instruments work with the idea of generalisation. The effect is to facilitate the presentation of the evidence. As mentioned before, a characteristic of proof of causation is uncertainty, incompleteness73 and the need to draw inferences. Because it is impossible to prove all single facts as a foundation, there will always be the need for circumstantial evidence or for prima facie proof and some scholars even state that proof of causation is always based on prima facie evidence.74 However, causation is the main area of the application of prima facie proof because to reach a conclusion that x was a cause of b the factfinder usually relies on indirect proof by drawing inferences and this process often involves general reasoning.75 The difference between the prima facie evidence and the circumstantial evidence is that the first operates with typicality and generality based on experience in life whereas the second is based on concrete circumstances of the case at hand. The prima facie evidence gives the claimant the possibility to prove a fact by showing typicality in the absence of a contrary explanation.76 The foundation lies in the typicality based on ordinary experience. According to the Federal Supreme Court (BGH), typicality of causation requires that the causal connection must come up so often that the probability that the case at hand would be the same is very high.77 The fact is proven unless the opponent shows the serious possibility (ernsthafte Möglichkeit) of the contrary by offering facts which justify serious doubts about the typicality and support the serious possibility of another atypical chain of events in the concrete circumstances.78 This is different from proof of the contrary which is usually more difficult to show. If the opponent is able to challenge the prima facie evidence, the claimant must fully prove the fact because burden of proof is not reversed. The application of the prima facie evidence is limited to issues of care or causation79; and it is limited to so called ‘typical cases’. For instance, if the plaintiff falls down an icy, negligently untreated staircase, the causation of the injury as the failure to de-ice is established on prima facie evidence is based on the general consideration that icy staircases typically cause people to slip.80 73 Compare

Weber (note  8), p.  259. Weber (note  8), p.  259. 75  Steel (note  4), p.  67. 76  Murray/Stürner (note  26), p.  311. 77  BGH NJW 2010, 1072 (1073). 78  Steel (note  4), p.  86 f. 79  Leipold, Beweislast und Beweismaß im Zivilprozeß, Berlin, New York 1985, p.  16. 80  OLG Frankfurt VersR 1980, p.  50; translation from Steel (note  4), p.  81. 74 

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With regard to causation it is important to note that the doctrine of prima facie proof comes into consideration mainly for liability establishing causation81 if it is argued if the tortious act has caused the damage, the tortious act is not disputed, and the damage is a typical consequence of such an act.82 But prima facie evidence can also be relevant to liability implementing causation.83 2. Mitigation of the standard of proof It is discussed if the prima facie evidence affects the standard of proof with the result of its mitigation. The former Reichsgericht held that the prima facie proof must lead to a full conviction of the court. 84 If so, the standard of proof would not be affected.85 The effect of a mitigation of the standard of proof by the prima facie doctrine is also denied by Prütting who argues – as described above – for a reduced standard of proof for causation due a functional interpretation.86 Prima facie proof would – according to Prütting – not justify a general mitigation of the standard of proof because the strength of its foundation would not be uniform and would be based on different empirical principles which might vary significantly in their weight and in their scope. 87 Thus, sometimes it might fully convince the court; sometimes not. Only if one excludes empirical experiences that do not have the power to convey a full conviction, might one then say prima facie evidence involves a reduction of the standard of proof. It does not do so in general.88 This differentiation appears interesting, but one wonders if it is realistic.89 Prima facie proof always operates with typicality, whatever degree this might reach. How can typicality while disregarding the concrete facts lead to the judge’s feeling of full conviction? One must consider the following: If the opponent cannot give a contrary explanation to challenge prima facie evidence, the abstract proof based on prima facie evidence will be less stringent that any individual proof would be.90 Therefore, it is convincing that prima facie evidence facilitates the standard of proof;91 some scholars even argue that the reduction of the standard of proof would be the main characteristic of the doctrine of prima facie evidence.92 81 MüKoBGB/Oetker,

7th ed. 2016, §  249 mn.  494. BGH NJW 2010, 1072 (1073). 83  BGH NJW 2000, 734 (736); BGH NJW 2000, 664 (667). 84  RGZ 163, 21, 27. 85 MüKoZPO/Prütting, §  286 mn.  45, 52 f. 86 MüKoZPO/Prütting, §  286 mn.  47. 87 MüKoZPO/Prütting, §  286 mn.  52 f. 88 MüKoZPO/Prütting, §  286 mn.  53. 89  Leipold (note  79), p.  12. 90  Leipold (note  79), p.  12. 91  Leipold (note  79), p.  12 f; Musielak (note  57), p.  120 ff.; Walter (note  38), p.  205 ff. 92  Musielak (note  57), p.  125 ff. 82 

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The wording used by the BGH in some judgments implies such a mitigation of the standard of proof: The court held the prima facie must suggest the affirmation.93 In other judgments the BGH distinguishes between full proof under §  286 ZPO and proof by prima facie evidence.94 The justification for a lower degree of probability is that the experientially linked fact or empirical principle has a much broader foundation than the particular case.95 The basis of prima facie proof is abstract, empirical, not case specific and therefore has less weight not only for the claimant but vice versa also for the finding of the judge. One must consider the mechanism of prima facie proof. The claimant need only to show an abstract causal generalisation between a and b to the effect that a typically causes b.96 Then it falls to the opponent to provide case-specific evidence to create doubt upon the typicality and applicability of that generalisation to the facts at hand.97 The judge’s awareness of generalisation affects his degree of conviction. This can be illustrated by the so called Lues case.98 The fact pattern was the following: A woman received a blood transfusion from a blood donor who suffered from stage three Lues disease, also known as syphilis. When the woman intended to donate blood a couple of years later, a test discovered that she suffered from Lues without showing typical symptoms of this disease. Her husband and children were not infected. The expert explained that an infection from Lues by blood donation would be very rare, but would not seem to be excluded. According to the symptoms, the woman could possibly have another disease, but for Lues the blood transfusion might be the reason. The BGH held that if there are indications only for one causation, and there are no indications for other causations, the prima facie proof indicates the first causation and speaks for the proposition that the transfusion caused Lues.99 As a consequence, it fell to the defendant to show that Lues occurred due to another cause, such as intercourse with an infected person. In the case at hand the defendant could not present such evidence and so the claimant succeeded.100 Finally, there is another argument in favour of a mitigation of the standard of proof by prima facie evidence. As explained above, we must distinguish between the liability establishing causation and the liability implementing causation. The BGH applies the standard of §  287 ZPO only for the liability implementing causation and seems to use prima facie proof to establish liability estab93 

BGH NJW 1982, 2668. BGH NJW 2010, 1072. 95  Musielak (note  57), p.  121. 96  Steel (note  4), p.  219. 97  Steel (note  4), p.  219. 98  BGHZ 11, 227 = NJW 1954, 718. 99 Compare Steel (note  4), p.  219. 100  BGHZ 11, 227 = NJW 1954, 718; compare Steel (note  4), p.  219 f. 94 

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lishing causation to avoid the unjust results that would appear if the high standard of full conviction of the court was applicable.101

VII. Special Problem: Mass Damages Establishing causation with regard to mass damages poses particular difficulties if a number of people were damaged by an action. This concerns both the ‘liability establishing causation’ and the ‘liability implementing causation’. One difficulty is that it is hardly possible to jointly assess the individual injuries of single parties in a class action. The same applies to establishing the extent of individual damage as a result of the ‘liability implementing causation’102 . Tort law in Germany is geared towards individual settlements for single aggrieved parties. It cannot simply be cultivated as an instrument for awarding compensation for collective injury within the context of a class action103. In the context of class actions in common law countries, settlements are agreed to which award damages that have no basis in the law of damages for individuals. In these cases, damages are determined using over-simplified dummy criteria that have nothing to do with classic tort law pertaining to individuals. Therefore, the most complex cases regarding the issue of proof of causation are mass torts: “The main problem of collective redress [in Germany] is not … a lack of procedural instrumentalities like a group action, it is also a lack of substantive law for mass damages”104.

101 

Musielak (note  57), p.  125. Stürner, Materielles Schadensersatzrecht und Schätzung im Prozess, in Festschrift Sutter-Somm, 2016, p.  657, 671. 103  Stürner, in Festschrift Sutter-Somm, 2016, p.  657, 671; Stürner, The Role of Judges and Lawyers in Collective Actions in the United States and Europe, ZZPInt 17 (2012), p.  259 ff., 286 ff. 104  Stürner, ZZPInt 17 (2012), p.  259, 287 ff. 102 

Standard of Proof The Austrian Approach Walter H. Rechberger

I. Introduction Typically, Austrian proceduralists would commence their remarks regarding fundamental procedural law issues by making a reference to Franz Klein, the famous originator of the Austrian Code of Civil Procedure in 1895. Since in this conference the starting point for considerations is the principle of free assessment of evidence, I would like to begin earlier in time, namely in the 16th century, in fact with the procedural laws of the innermost parts of Austria, Styria, Carinthia and Carniola.1 In these countries their domestic custom (heimischer Landesbrauch) in the field of the so-called schrannengerichtliches Verfahren (Schranne used to be the courthouse) could particularly compete against the “common law” (gemeines Recht) of this time, namely the roman-canonical procedure. In Austria, primarily the domestic custom applied to the extent such custom undoubtedly existed; subsidiary and only in the absence of such domestic custom the common law was applicable. However, solely little room was left for an alternative application of the ordinary law due to the rather detailed procedural law provisions. Thus, the Styrian State Order of 1533 (Steiermärkische Landesordnung) was governed by the principle of free evaluation of evidence which was formulated as follows: “Es soll ain yeder Lanndtman seiner gewissen nach urteiln …”. Landmann was the landlord who also acted as a judge for his subjects, and he should decide to his best belief. Only in the 17th century the ordinary law doctrine of proof (gemeinrechtliche Beweislehre) with its rules of legal proof became predominant and replaced the principle of free assessment of evidence. However, in the 19th century this principle returned and started its triumphal procession through the procedural law codifications – as one of the positive fruits of the French Revolution. In Austria this principle could at least be found in the Small Claims Procedure Act of 1873 and was then – albeit somewhat late – introduced by Franz Klein in the Code of Civil Procedure and there1  See for the following Rechberger, Das Zivilprozessrecht in Österreich zur Zeit Karls V., in Historiarum ignari semper sunt pueri, Festschrift Sprung, Wien: Manz 2011, page 311 (315 et seq).

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by in the standard civil procedure. Certainly, this standard of proof was introduced following the German Code of Civil Procedure of 1877, which Klein adopted to a large extent. The original wording of Sec 272 para  1 of the Austrian CCP (which is still in place) phrases this fundamental principle of evidence law – almost exactly following the pattern of Sec 286 par 1 German CCP – as follows: “It is for the court to determine on free evaluation, having regard, in particular, to the results of the proceedings and to the evidence whether an allegation as to the fact is to be deemed as truth or not.” Today, the principle of free assessment of evidence is beyond discussion.2 However – as this conference demonstrates – the closely linked question to this principle asking whereby the judge may be persuaded in the context of this free evaluation is fiercely debated.3 And this also in Austria, where scientific “conversations” that are held in Germany – albeit somewhat late – receive response.

II. Theory of subjective and objective standard of proof Until a relatively short time ago the prevailing opinion of the Austrian literature on procedural law traditionally followed the German doctrine with regard to the question of the correct standard of proof and thereby assumed a subjective standard of proof. This standard of proof requires the judge’s “full conviction of the truth” of the disputed facts (so-called Wahrheitsüberzeugungstheorie).4 It is an indisputable fact that both the German and the Austrian Code of Civil Procedure in their (albeit different) models of collecting facts focus on the issue of truth as the wordings on the free evaluation of evidence demonstrate. But – if I see it correctly – no author has ever represented a purely subjective standard of proof theory. It is questionable if a judge by applying such a theory could ever establish any factual finding. Having regard to the limitations set to human nature such as possibilities of sensual perception and the subjective cognitive ability it is stressed that the “conviction of the truth” cannot imply absolute certainty. Also in Austrian literature the requirements of the standard of proof are set in relation and the Rosenberg formula is applied. Accordingly, the judge “may not raise doubt where any other wise individual, clearly overlooking the living standards would be convinced”.5 Furthermore the famous “Anastasia” decision of the German Federal Court of Justice was frequently cited in Austria 2 Cf Rechberger in Fasching & Konecny (eds), Kommentar zu den Zivilprozessgesetzen III/1, 3rd ed. Wien: Manz 2017, Vor §  266 ZPO note  5. 3 Cf Rechberger in Fasching & Konecny III/1 3rd ed. Vor §  266 ZPO note  8 . 4 Cf Rechberger in Fasching & Konecny III/1 3rd ed. Vor §   266 ZPO note  8; Fasching, Lehrbuch des österreichischen Zivilprozeßrechts, 2nd ed. Wien: Manz 1990, notes 799, 808 and 815. 5 Cf Fasching, Lehrbuch 2nd ed., notes 803 and 815; Fucik, Das Beweismaß im Zivilpro­ zess, Österreichische Richterzeitung 1988, page 122 (123).

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(it was – as we know today – about the Czar’s actual false daughter). The German Federal Court (BGH) stated: “The law does not require a level of conviction that is free from all doubts” – but then the Federal Court equated conviction with personal assurance. 6 Indeed it is difficult to understand how a judge who does not need to overcome all doubts can obtain personal certainty. But – as we have learned from the lecture of Professor Schweizer – there may be possible a preponderance of conviction. However, explanations along the line of argumentation of the German BGH are also to be found in the textbook by Hans W. Fasching, which was published in 1990. Fasching decisively influenced the Austrian procedural law doctrine after the Second World War by means of his well-known commentary to the Austrian Code of Civil Procedure. It holds: “It is an irevocable prerequisite that the judge must be convinced of the truth of the fact to be proved.” Fasching 7 determines as the principle standard of proof “mit an Sicherheit grenzende Wahrscheinlichkeit”, meaning “almost certainty” which is reached “if only a few per mille are missing to reach the threshold of a hundred percent.” This principle standard is only used in case neither an increase nor a reduction of the standard of proof is intended. I will return to this issue later. At least Fasching recognizes objective elements of the assessment of the evidence by the court; namely the judge’s personal life experiences and his special expertise as well as the average wealth of experience and knowledge of a reasonable individual of our sphere of life. From an Austrian perspective several points may be raised against the theory of full conviction of the truth: First, pursuant to Sec 272 para  1 of the Austrian CCP the judicial evaluation of evidence (by providing factual decisions) encompasses not only the sole assessment of the provided evidence but rather encompasses the entire proceedings. This is likewise stipulated in Sec 286 para  1 of the German CCP. Therefore, the assessment of the evidence is – as Professor Leipold8 (one of the most recognized experts in the field of evidence law) phrased – “a statement about the truth on the basis of the provided documentation and evidence in the proceedings records”; therefore, it solely deals with the relative truth. Furthermore – in Germany as well as in Austria – a judicial reduction of the standard of proof is under certain circumstances increasingly deemed necessary. The conviction of the truth is therefore not considered to be required. Finally, the law itself, by stipulating the obligation to state reasons for the free assessment of evidence, elevates those principles of experience which lead the judge to the conclusion that the established facts are “to be held true” to the decisive criterion of this assessment. However, since conclusions derived from 6 Cf Gottwald, Auf dem Weg zu einer rationalen Beweiswürdigung, in Festschrift Sutter-­ Somm, Basel: Schulthess 2016, page 125 (126). 7 Cf Fasching, Lehrbuch 2nd ed., note  815. 8 Cf Dieter Leipold, Wahrheit und Beweis im Zivilprozeß, in Festschrift Nakamura, Tokyo: Seibundo 1996, page 301 (305).

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empirical principles regularly produce just probability judgments (Wahrscheinlichkeitsurteile), the judge’s subjective conviction (alone) cannot be decisive.9

III. The objectification of the judge’s subjective conviction 1. The obligation of reasoning of the free assessment of proof The history of the free assessment of proof is also a history of attempts to objectify the judge’s individual conviction which substituted the legal evaluation of evidence and its rules of legal proof by stipulating various criteria. As already mentioned, the most important objective criterion for correcting the subjectivity of the judicial assessment of evidence is the judge’s obligation to state reasons for the respective findings. In the German-speaking countries, it first appeared in a Prussian law from 1846, which was then adopted by the German Civil Procedure Act 1877 and rather identically included in the Austrian Civil Procedure Act 1898. The obligation to state reasons is not only often not taken seriously enough in practice, which frequently simply uses empty formulas, but is also underestimated in its importance for the theory of the standard of proof. The statutory obligation to state reasons already provides for a formal justification of the fact that a purely subjective theory of the standard of proof is more or less impossible. Since subjective inner conviction ultimately cannot be justified rationally, it cannot be the decisive criterion for judicial assessment of evidence. Therefore, the personal certainty of the truth of the ascertained facts is not the determining criterion for judicial assessment of evidence. The free conviction does not refer to the truth as such but rather to the assessment of evidence which is to be free from supervision by law and rather in the judge’s own responsibility. Secondly, the obligation to state reasons for the assessment of proof, however, provides for a substantially clearer vote for the presumption of probability as a criterion for this conviction than all usual likelihood considerations. Those merely rest upon the necessity of a practical concept of truth. Fasching10 – as already mentioned – recognizes the judge’s personal life experiences and his special expertise as well as the average wealth of experience and knowledge of a reasonable individual of our sphere of life as indisputable objective elements of the judicial assessment of proof. This means that the judge’s obligation to state reasons requires that the judge must disclose on the basis of which empirical estimates he concludes that the ascertained facts are to be held true. It has never been doubted that conclusions derived from empirical estimates provide only probability judgments.11 9 Cf Rechberger, Maß für Maß im Zivilprozeß?, in Festschrift Baumgärtel, Köln etc.: ­Heymann 1990, page 475 et seq. 10 Cf Fasching, Lehrbuch 2nd ed., note  814. 11 Cf Rechberger in Fasching&Konecny III/13 Vor §  266 ZPO note  9.

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2. Objective and subjective elements of the assessment of proof The current discussion in European procedural law doctrine shows from my point of view that neither a purely subjective nor a purely objective theory of the standard of proof can be persuasive.12 This is due to the fact that despite all theories of probability there will never be a generally accepted standard of probability under which the probability of facts to be ascertained could be read in exact percentages and which is sufficient for all litigation issues. The fields in which it is possible to ascertain it with sufficient accuracy, such as, for example, the paternity assessment, are naturally rather limited. Above all, such a purely objective criterion – and according to Prof. Schweizer it is not a purely objective criterion – would only be a real aid if the result of evidence could also be determined on such a figure. This is, however, no longer possible, since, usually various pieces of evidence need to be assessed. Consequently, without elaborating on the regularly raised legal concerns I am of the opinion that the more probable than not standard, which has already been dealt with in detail at this conference, is not the satisfactory solution to the problem of standard of proof, even if this principle may have a considerable tradition, especially in the common law jurisdictions. Apart from the fact that probabilities allow an exact measurability only in a very narrow field, the subjectivity of the judge plays a very important role in connection with the free assessment of proof. Even if it can be hardly derived from legal provisions that conviction requires the personal certainty (persönliche Gewissheit) of the judge, it is without doubt a question of the judicial conscience, whether the assumption of this degree of probability is justified. In Austria – as already mentioned – already the Styrian State Order of 1533 referred to the judge’s conscience. It has to be noted that also the objectivizing elements of judicial assessment of evidence underlie the subjectivity of the judge. This applies – taking into account the criteria mentioned by Fasching13 – first of all especially to the personal life experience of the judge, but also for the special expertise he has acquired. It also applies for what the judge assumes to be the average experience and knowledge of comprehensible individuals of our life sphere. All this is subject to the personal experience of the judge. If therefore, as a starting point, an objective theory of proof is to be preferred which sees the task of the judicial assessment of evidence from the outset “only” in the ascertainment of the probability (“probability-conviction-theory”; Wahrscheinlichkeitsüberzeugungstheorie),14 the judicial assessment of evidence will however never be possible without a judge’s decision of conscience on whether the assumption of the corresponding probability level is justified.15 12 Cf

Rechberger in Fasching&Konecny III/1 3rd ed. Vor §  266 ZPO note  10. Fasching, Lehrbuch 2, note  814. 14 Cf Rechberger in Fasching&Konecny III/1 3rd ed. Vor §  266 ZPO note  10. 15 Cf Musielak, Die Grundlagen der Beweislast im Zivilprozeß, Berlin/New York: De 13 Cf

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IV. The principle standard of proof according to the Austrian Code of Civil Procedure This raises the question of the principle standard of proof (Regelbeweismaß) according to the Austrian Code of Civil Procedure. At first, it should be pointed out again that in Austrian civil proceedings the merely preponderant probability16 in doctrine and jurisprudence is unanimously regarded as an unsuitable principle standard of proof. This is justified by the different degrees of evidence), which can be derived from the substantive law as well as from the procedural law itself. Those degrees of evidence logically do require a principle standard of proof which allows both increases and reductions. Thus, the law expresses the fact that the standard of proof depends, in a certain way, on the matter in dispute in the proceedings and on the provisions governing this matter. My young colleague from the Vienna Civil Procedure Law Department, Christian Koller, therefore recently referred to a “norm-related-teleological” standard of proof.17 The requirements of the general rule of Sec 272 of the Austrian CCP are nonetheless set “high”, although they may be reduced to the “relative truth” as discussed above. This seems to be necessary due to the inherent connection between substantive law and procedural law: The establishment of entitling factual elements and the requirements laid down to prove these facts have to be certainly related. Therefore, as a rule, high standards have to be applied to the probability required for the proof: Even if, in principle, there is no need for a probability which equals “almost certainty” (which means an increase of the standard of proof), a high probability is regarded as the principle standard of proof according to the Austrian CCP;18 this legal opinion has also been fully accepted in recent jurisprudence.19 It cannot be denied that “high probability” does not represent an objective quantity, and therefore a certain range is inherent to such a principle standard of proof. It certainly depends on both the objective circumstances of the event and Gruyter 1975, page 120; Leipold, Beweismaß und Beweislast im Zivilprozeß, page 9 et seq; Leipold in Festschrift Nakamura, page 307 et seq; Klicka, Die Beweislastverteilung im Zivilverfahrensrecht, Wien: Manz 1995, page 24 et seq. 16 Consensually Schweizer, Beweiswürdigung und Beweismaß, Tübingen: Mohr Siebeck 2015, page 486 et seq for Swiss and German procedural law. For futher details also cf Rüssmann, Das flexible Beweismaß – eine juristische Entdeckung, in Festschrift Peter Gottwald, München: Beck 2014, page 539 et seq; Gottwald, Auf dem Weg zu einer rationalen Beweiswürdigung, in Festschrift Sutter-Somm 2016, page 125 et seq. 17 Cf Rechberger in Fasching&Konecny III/1 3rd ed. Vor §  266 ZPO note  11. 18 Cf Klicka, Beweislastverteilung, page 30 et seq; Rechberger in Festschrift Baumgärtel, page 484; Rechberger in Rechberger (ed), Kommentar zur ZPO, 4th ed, Wien: Verlag Österreich 2014, Vor §  266 note  5; Rechberger&Simotta, Grundriss des österreichischen Zivilpro­ zessrecht, 9th ed, Wien: Manz 2017, note  813. 19 Cf Rechberger in Fasching&Konecny III/1 3rd ed. Vor §  266 ZPO note  11 with further references.

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the subjective assessment of the judge under which circumstances he considers this “high” probability as given. In this respect, one could speak of a “flexible standard of proof”. However, this is not to be understood in the sense of Gott­ wald’s “theory of the flexible standard of proof”20 , according to which it ultimately depends on the degree of probability that is appropriate to the respective occasion. Gottwald’s reasoning has to be understood from its starting point, namely, the “theory of the full conviction of the truth” (Wahrheitsüberzeugungstheorie) since, from the subjective conviction of the judge alone, little is to be gained for the degree of probability of the standard of proof. Accordingly, for Gottwald the concept of conviction is neutral and implies “a not very high degree of probability”.

V. Degrees of the standard of proof 1. Statutory degrees of the standard of proof If it is acknowledged that solely the judge’s conviction that the above-mentioned high degree of probability is reached is decisive, the necessary consequence is that there cannot be a uniform standard of proof. This is due to the fact that the same degree of probability cannot be established for all facts to be ascertained. A glance at the legal framework proves that there are considerable degrees of the standard of proof, thus deviations from the principle standard of proof. In Austria the typical examples for an increase of the standard of proof can be found in the proceedings for determination of the paternity (which is regulated by the Non-Contentions Proceedings Act, BGBl I 2003/111, and completely referred to the non-contentions jurisdiction proceedings):21 Thus the determination that the child does not descend from the mother’s husband (Sec 151 para  1 of the Aus­trian Civil Code “ABGB”) requires, according to the prevailing case law, the “proof of the impossibility or of the impossibility bordering on almost certainty that the mother conceived the child from her husband”. A comparable increase of the standard of proof exists in cases of judicial determination of paternity pursuant to Sec 148 of the Austrian Civil Code: In the case of a determination of paternity upon request of the child or of the man, the court needs to be convinced that the child is descending from the applicant bordering on almost certainty (or in the case of application by the child: from the respondent), which is easily possible due to modern DNA assessments. In addition to providing the positive proof of origin, the child further has the possibility to rely on 20 Cf Gottwald, Das flexible Beweismaß im englischen und deutschen Zivilprozeß, in Festschrift Henrich, Bielefeld: Gieseking 2000, page 165; furthermore Rüssmann in Festschrift Gottwald pages 539, 547 et seq. 21 Cf Rechberger in Fasching&Konecny III/1 3rd ed. Vor §  266 ZPO note  13.

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the presumption of conformity pursuant to Sec 148 para  2 of the Austrian Civil Code. According to this provision the man is to be ascertained as father, “who had sexual intercourse with the mother within a period of not more than 300 and not less than 180 days prior to the birth of the child”. This assumption of paternity by cohabitation can be invalidated by the man proving the contrary, namely that the child does not decent from him. However, this improbability of paternity is also bound to the almost certainty. Nonetheless, a reduction of the standard of proof is normed, for example, by Sec 7 para  2 of the Product Liability Act (Produkthaftungsgesetz): “According to this provision the defendant, who alleges that the defect causing the damage was not inherent to the product at the time he introduced this product to the market, has to demonstrate that this course of events is probable in consideration of all circumstances “; in this case, the required standard of proof for the exculpatory evidence is the predominant probability. In contrast, pursuant to Sec 7 para  1 of the Product Liability Act, the entrepreneur is obliged “to prove” that he has not at all or not within his business activity introduced the product into the market; in this case the principle standard of proof applies.22 2. Judicial reductions of the standard of proof The judicial concept of the prima facie evidence (Anscheinsbeweis) has gained considerable practical importance in particular in tort law proceedings.23 In these proceedings this concept aims at encountering the lack of evidence by a relaxation of the burden of proof for the person who bears the burden of proof which manifests itself in the reduction of the standard of proof. The reduction of the standard of proof is appropriate in particular, for example, in medical liability proceedings with regard to the proof of causality in case of possible health damages which are associated with malpractices; it is apparent that considerations of fairness require deviating from the principle standard of proof in these cases. Moreover, case law allows for a reduced standard of proof in case of hypothetical course of events that are difficult to prove.24 These include, for example, the damage causality, lawyer’s negligence hypothetical deviating course of proceedings, medical malpractice, causality of omission and loss of earnings. Also in certain insurance cases, case law considers it sufficient if the person who bears the burden of proof only demonstrates the predominant probability of the course of events. In case of severe, but slowly developing diseases (such as heart disease), the insured person solely needs to demonstrate the predominant prob22 Cf

Rechberger in Fasching&Konecny III/1 3rd ed. Vor §  266 ZPO note  13. Rechberger in Fasching&Konecny III/1 3rd ed. Vor §  266 ZPO note  22; Fasching, Lehrbuch 2 note  893. 24 Cf Rechberger in Fasching&Konecny III/1 3rd ed. Vor §  266 ZPO note  15. 23 Cf

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ability that this illness has only arisen after the insurance contract has been concluded. Recent case law granted such relaxation of proof also to investors who suffered damages with regard to the hypothetical course of causality:25 Although the investors have to allege and proof the occurrence of damages, the amount of damages, and the causal link between the occurrence of the damages and the lack of advice as well as the hypothetical current asset value without the investment advice provided in breach of duty. However, with regard to the hypothetical course of causality, the investors benefit from a relexation of proof, since the development of events which have never actually taken place cannot be assessed with certainty. Therefore, for the causation of damages the predominant probability is considered to be sufficient. The Austrian CCP itself provides for several cases of reduction of the standard of proof:26 this is the case in the event of a judicial assessment of damages or determination of the amount with regard to another claim pursuant to Sec 273 para  1 of the Austrian CCP, in case of a decision on a claim due to free conviction pursuant to Sec 273 para  2 of the Austrian CCP and whenever the law stipulates that providing a prima facie evidence or just a credible demonstration of facts (Bescheinigung) within the meaning of Sec 274 of the Austrian CCP is sufficient.

VI. Internal coherence between the standard of proof and the burden of proof In Austrian legal literature, the connection between the applied standard of proof and the frequency of non-liquet cases is correctly pointed out:27 the stricter the demands on the standard of proof are, all the more such a situation and thereby the necessity of a decision regarding the burden of proof arises. Of course it should be stressed, that the Austrian Code of Civil Procedure (also) in its terminology follows the model of the German Code of Civil Procedure. Therefore, the rules on the allocation of the burden of proof have to be considered when the law refers to “assertion” or “contestation” or “independent means of attack or defense”. However, it must always be borne in mind, at least in comparison with the original version of the German law, that the two procedural regimes reflect different models of collection of documentation and evidence: the parties’ obligation to tell the truth and to inform about all relevant facts on the one hand, and the judge’s obligation of material managing the proceedings 25 Cf

Rechberger in Fasching&Konecny III/1 3rd ed. Vor §  266 ZPO note  15. Rechberger in Fasching&Konecny III/1 3rd ed. Vor §  266 ZPO note  16. 27 Cf Klicka, Beweislastverteilung, page 21 et seq. 26 Cf

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(materielle Prozessleitungspflicht) on the other hand, decisively alleviates the parties’ “burden” of proof in the Austrian civil proceedings.28 A consistent application of the theory of full conviction of the truth – that the Austrian case law influenced by doctrine (most recently Fasching) applied until the end of the last century –, would in practice have led to a non-liquet case much more frequently than it was actually the case. This is due to the requirement of the judge to be convinced of fundamental facts with a “probability which is bordering on almost certainty”. In fact, it appears to depend on the respective judge in charge which standard of proof is applied; the advocates of a more subjective and those of a more objective view are obviously balanced. But experience also teaches that some judges (only) determine a high probability, but are in fact convinced of the truth.29 No consensus exists among Austrian judges on the question how decisions regarding the burden of proof are to be rated at all. From time to time, the opinion is held that the losing party of the proceedings will more likely accept such a decision than a decision based on the “entire” facts alleged by the opponent.30 However, it is ignored that the decision regarding the burden of proof reverses the results of the proceedings: It is not (solely) about which reasoning of a negative decision seems to be more acceptable, but rather about the fact that the party bearing the burden of proof loses the proceedings, although his presentation of the facts and circumstances is possibly significantly more credible than those alleged by his opponent! The decision regarding the burden of proof should, therefore, be the ultima ratio, which is facilitated by a principle standard of proof being content with a high probability of the relevant facts.31 I am willing to admit that this is grist to the mills of Prof. Schweizer.

28 Cf

Rechberger in Fasching&Konecny III/1 3rd ed. Vor §  266 ZPO note  23. Rechberger in Festschrift Baumgärtel, page 486 et seq. 30 Cf Fucik, Österreichische Richterzeitung 1990, page 56. 31 Cf Rechberger in Fasching&Konecny III/1 3rd ed. Vor §  266 ZPO note  2 2. 29 Cf

Scandinavian Approach

Standards of Evidence in Scandinavia Magne Strandberg

I. Introduction The standard of evidence is one of a very few legal topics about which a discussion in one of the largest legal systems was initiated and inspired by (apparent) Scandinavian tendencies. A couple of articles1 by the Swedish scholars Per Olof Ekelöf and Per Olof Bolding were instrumental in prompting a German debate on the standard of evidence from the 1960s onwards.2 In the German discussion, these Swedish academics were associated with a probabilistic and mathematically inspired way of reasoning about evidence and proof, including proponing numerical assessments of probability, so-called “objective” concepts of probability. Of special importance in the discussions was the so-called “Überwiegensprinzip”, which typically was associated with both Ekelöf and Bolding, was regarded as an established part of Swedish law and was a subject of analysis by both proponents and opponents of such a principle in the German debate.3 An expression called “das Schwedische Überwiegensprinzip” (the Swedish prepon1  Bolding, Aspects of the Burden of Proof, Scandinavian Studies in Law, The Hague 1960 p.  9 –27, Bolding, Sachaufklärung und Überzeugungsbildung im Schwedischen Zivilprozeß, in: Freiheit und Bindung des Zivilrichters in der Sachaufklärung, Schriften der Gesellschaft zur Rechtsvergleichung, Band  30, Frankfurt 1966 p.  57–64, Ekelöf, Beweiswürdigung, Beweislast und Beweis des erstens Anscheins, Zeitschrift für Zivilprozess 1962 p.  289–301, and Ekelöf, Free Evaluation of Evidence, Scandinavian Studies in Law 1964 p.  47–66. 2  F ex Kegel, Der Individualanscheinsbeweis und die Verteilung der Beweislast nach überwiegender Wahrscheinlichkeit, Das Unternehmen in der Rechtsordnung – Festgabe für Heinrich Kronstein, Karlsruhe 1967 p.  321–344, Maassen, Beweismaßprobleme im Schadensersatz­ prozeß: Eine rechtvergleichende Untersuchung zum Problem des Beweismaß im deutschen und anglo-amerikanischen Prozeßrecht unter besonderer Berücksichtigung des Schadens­ ersatz­prozesses, Köln-Berlin-Bonn-München 1975, Leipold, Beweismaß und Beweislast im Zivilprozeß, Schriftenreihe der Juristischen Gesellschaft zu Berlin, Heft 93, Berlin 1985, Schwab, Das Beweismaß im Zivilprozeß, Festschrift für Hans W. Fasching zum 65. Geburts­ tag, Wien 1988 p.  451–462, Prütting, Gegenwartsprobleme der Beweislast: Eine Untersuchung moder­ner Beweislasttheorien und ihrer Anwendung insbesondere im Arbeitsrecht, München 1983 p.  60, Rechberger, Maß für Maß im Zivilprozeß? Ein Beitrag zur Beweismaßdiskus­sion, Festschrift für Gottfried Baumgärtel zum 70. Geburtstag, Köln-Berlin-Bonn-München 1990 p.  471. 3  F ex Bruns, Zivilprozeßrecht, 2nd ed., München 1979 p.  275 ff., Greger, Beweis und Wahrscheinlichkeit. Das Beweiskriterium im allgemeinen und bei den sogenannten Beweiserleichte­ rungen, Köln 1978 p.  94–97, Motsch, Vom rechtsgenügenden Beweis. Zur Entscheidung von Zivilsachen nach Wahrscheinlichkeit unter besonderer Berücksichtigung der Abstammungs-

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derance principle) has regularly been used as a keyword. Some scholars describe an inspiration picked up from Scandinavian law, not only from Swedish law.4 For instance Baumgärtel’s handbook on the burden of proof describes the German proponents of the preponderance of the evidence standard as being inspired by Anglo-American and Scandinavian law.5 Even though Scandinavian theories of evidence have initiated and influenced discussions abroad, only minor parts of these theories have been made public in English or German. 6 The articles by Ekelöf and Bolding that inspired German scholars from the 1960s onwards only concerned a few of the theories in Scandinavia: the texts only covered parts of those theories, and the texts were published at a time when the theories of Ekelöf and Bolding were still in the crucible. Unfortunately, the texts also represented a mixed approach where considerations of the law were woven together with considerations of pure theory. Therefore, the articles were not exact descriptions of Scandinavian or Swedish law. So, what are the Scandinavian standards of evidence? Are there common Scandinavian standards or unique standards for Sweden, Denmark, and Norway?7 In answering these questions, I have to describe each jurisdiction separately and then sum up on whether there is a genuine Scandinavian law concerning the standard of evidence in civil cases or separate models for each country. Although my descriptions of each jurisdiction primarily concern the law on the standard of evidence as it is today, the basic patterns of evidence law are typically developed in a long-term interplay between court practice and legal theory.8 feststellung, Schriften zum Prozessrecht, Band  79, Berlin 1983 p.  37–55, Prütting, fn.  2, p.  71– 77, Leipold, fn.  2, p.  6 –7. 4  F ex Greger, fn.  3, p.  97, Rechberger, fn.  2 , p.  471, Schwab, fn.  2 , p.  452, Katzenmeier, Beweismaßreduzierung und probabilistische Proportionalhaftung, Zeitschrift für Zivilprozess 2004 p.  187–216 (on p.  198–199), Brinkmann, Das Beweismaß im Zivilprozess aus rechts­ vergleichender Sicht, Prozeßrechtliche Abhandlungen, Heft 121, Köln-Berlin-Bonn-München 2005 p.  35–38. 5  Baumgärtel, Laumen and Prütting, Handbuch der Beweislast. Grundlagen, 3rd ed., Carl Heymanns Verlag 2016 p.  95: „In Anschluss an das angloamerikanische und skandinavische Recht hat das Überwiegensprinzip als Regelbeweismaß in den letzten Jahrzehnten auch im deutschen Recht zunehmend Befürworter gefunden.“ 6  Parts Ekelöf’s theory on evaluation of evidence were introduced in German or English, see Bruns, Beweiswert, Zeitschrift für Zivilprozess, 1978 p.  6 4–71 and Ekelöf, My thoughts on evidentiary value, in: Gärdenfors, Hansson and Sahlin (eds.), Evidentiary value: philosophical, judicial and psychological aspects of a theory. Essays dedicated to Sören Halldén on his sixtieth birthday, Lund 1983 p.  9 –26. 7  I will not go into Finnish law and theory, primarily because the most thorough theories on the standard on evidence in Finland are in the Finnish language only, see for instance Timo Saranpää, Näyttöenemmyysperiaate Riita-asiassa [The preponderance of-the-evidence principle in civil cases], Helsinki 2010. 8 Nygaard, Rettsgrunnlag og standpunkt, 2nd ed., Oslo 2002 p.   128 and 319, Heuman, Bevisbörda och beviskrav i tvistemål [Burden of proof and standard of evidence in civil cases], Stockholm 2005 p.  514–515.

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Hence, the descriptions of each jurisdiction will include doctrinal developments and the most influential theories. In describing these theories, one must keep in mind that there have been both domestic discussions within each country and genuine Scandinavian debates. A debate on the functions of the burden of proof and the relationship between substantive law and evidence law took place in the 1920s and 1930s, a debate in which prominent legal philosophers such as Karl Olivecrona and Alf Ross took part.9 Another debate took place in the 1980s when probabilistic techniques and concepts dominated a discourse including Swedish, Danish, Norwegian, and Finnish scholars.10 During the most recent decade or so, matters of evidence and proof have once again been the subject of debate in Scandinavia. A discussion including scholars from most of the Scandinavian countries has concerned matters such as Bayesian techniques,11 story models and explanation based reasoning,12 inspira9  Olivecrona, En teori om bevisbördan [A theory on burden of proof], Juridiska fakultetens i Uppsala minnesskrift II, Uppsala 1929 p.  1–71, Olivecrona, Bevisskyldigheten och den materiella rätten, [The burden of proof and the substantive law] Uppsala 1930, Ross, Bevisbyrdelæren i Støbeskeen [Burden of proof theories in the melting pot], Ugeskrift for Retsvæsen 1930 p.  349–358. 10  See Ekelöf, Bevisvärdemodellen kontra bevistemamodellen [The evidential value model versus the theme of proof model], Svensk Juristtidning 1989 p.  26–38, Bolding, Går det att bevisa? [Is it possible to prove?], Stockholm 1989, Lindell, Sakfrågor och rättsfrågor [Qestions of fact and questions of law], Uppsala 1987, Eckhoff, Temametode eller verdimetode i bevisvurderingen [The theme of proof method or the evidential value method for the evaluation of evidence], Svensk Juristtidning 1988 p.  321–339, Eckhoff, Temametode og bevisverdimetode på ny [The theme of proof methode and the evalution of evidence methode once again], Festskrift till Per Olof Bolding, Stockholm 1992 p.  85–103, Nygaard, Hagen og Nome, Årsak og bevis ved ansvar for skade [Causation and evidence in cases concerning liability for damage], Bergen 1986, Zahle, Findes der kun én bevisret? [Is there only one law of evidence?], Festskrift till Per Olof Bolding, Stockholm 1992 p.  4 47–459, Klami, Marklund, Rahikainen og Sorvettula, Ett rationellt beviskrav [A rational standard of evidence], Svensk Juristtidning 1988 p.  589– 605. See also the anthology Rätt och sanning: Ett bevisteoretiskt symposium i Uppsala 26–27 Maj 1989 (Klami ed), Uppsala 1990, which contain a number of articles from most of the important contributors in Scandinavian evidence theory at that time. 11 Dahlman and Wahlberg, Appeal to expert testimony – A Bayesian Approach, in: Bustamante and Dahlman (eds.), Argument types and fallacies in legal ­argumentation, Cham 2015 p.  3–18, Eide, Bevisvurdering. Usikkerhet og sannsynlighet [Uncertainty and proba­ bility], Oslo 2016, Andersson, Skälig misstanke [Probable cause], Stockholm 2016 p.  429–481, Jerkø, Bevisvurderingens rettslige rammer. Bevistema, bevisbyrde, beviskrav [Legal frame of the evaluation of evidence, Theme of proof, burden of proof, standard of evidence], Oslo 2017. 12  Kolflaath, Bevisbedømmelse – sannsynlighet eller fortellinger? [Evaluation of evidence – probability or stories], Venner 2004 p.  279–304, Kolflaath, Bevisbedømmelse som slutning til beste forklaring [Evaluation of evidence as inference to the best explanation], Tidsskrift for Rettsvitenskap 2007 p.  171–219, Kolflaath, Bevisbedømmelse i praksis [Evaluation of evidence in practice], Bergen 2013 p.   93–214, Graver, Bevisbedømmelse – Uvitenskapelig magefølelse eller rasjonell helhetsvurdering? [Evaluation of evidence – Unscientific gut feeling or rational overall assessment?], Tidsskrift for Rettsvitenskap 2009 p.  191–233, Granhag and Ask, Psyko­logiska perspektiv på bevisvärdering [Psychological perspective on evalua-

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tions from law and economics,13 and Keynesian weight, second-order probabilities or the robustness of evidence.14 Having been arranged for the past couple of years, the annual Scandinavian symposium on evidence and proof at the Uni­ versity of Lund has become the most important spot for those debates. This new Scandinavian discussion has not only concerned the evaluation of evidence; the standard of evidence has also been a much-debated issue. Typically, proponents of one theory of evidence tend to clarify the standards of evidence by using the basic concepts inherent in that theory. For instance defenders of Bayesian theory of evidence will define the standards of evidence by using subjective concepts of probability that are characteristic of that theory, while proponents of explanation-based reasoning will tend to define the standards by using the concept of explanations and plausibility that is assumed in that theory. While these Scandinavian debates primarily concern deeper and more theoretical aspects such as basic concepts, aims and functions of evidence rules, and relationships between law and other disciplines, the disputes on more dogmatic aspects of evidence law have been held within each jurisdiction separately. Typically, such domestic discussions touch upon important theoretical matters, but they also deal with interpretations of key legal sources that are unique for one specific jurisdiction. For instance, there is a Swedish discussion about how the Swedish Supreme Court’s judgments on the standard of evidence is to be interpreted,15 how the main rule in Sweden is to be understood, how many exceptions there are to that main rule and so on. In Norway, a specific discussion deals with whether practice from the Norwegian Supreme Court, or other legal sources, support the use of standards of evidence as a sanction against a party who has destroyed or not secured evidence.16 Such debates concerning national legal sources is one of the reasons why I will describe Swedish, Norwegian and Danish law separately.

tion of evidence], in: Christianson and Granhag (eds.), Handbok i Rättspsykologi, Stockholm 2008 p.  407–422. 13  Lando, When is the Preponderance of the Evidence Standard Optimal?, The Geneva Papers on Risk and Insurance 2002 p.  602–608, Lando, Prevention of Crime and the Optimal Standard of Proof in Criminal Law, Review of Law and Economics 2009 p.  33–52. 14 Strandberg, Beviskrav i sivile saker. En bevisteoretisk studie av den norske beviskravslærens forutsetninger [Standard of evidence in civile cases. An evidence theoretical approach to the foundations of the Norwegian doctrine concerning the standard of evidence], Bergen 2012 p.  515–606, Løvlie, Rettslige faktabegreper [Legal concepts of fact], Oslo 2014 p.  335–345, Andersson, fn.  11, p.  201–222. 15  See section III below. 16  See section IV below.

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II. Common features for the standards of evidence in Scandinavian Before describing each jurisdiction respectively, I must emphasize that all Scandinavian jurisdictions base their standards of evidence on a common set of elements: Firstly, all Scandinavian countries share some basic features of general civil procedure law that affects the application of the standards of evidence. The procedural systems are adversarial and a strong parties’ autonomy applies in most cases. Therefore, the parties’ agreement on certain legally relevant fact will normally be binding for the court, which means that rules on evidence, including the standards of evidence, is applicable only to matters on which the parties disagree.17 While applying a standard of evidence, the court may take into account only evidence that has been introduced during the main hearing and matters that are generally accepted knowledge.18 The parties will introduce the evidence even though courts may have a power to introduce evidence under special circumstances or in special cases.19 Having mentioned these common features of Scandinavian civil procedure law, one important difference is found concerning the scope of application of that law. While civil procedure law in Denmark and Norway deals with all fields of law except criminal law, Swedish civil procedure law covers neither criminal law nor administrative law. Secondly, standards of evidence, as most other parts of evidence law, apply only on matters of fact.20 Moreover, such standards apply only to facts that are of immediate legal relevance (so-called “rettsfakta”), not to facts that are mere indications of an immediate relevant fact (so-called “bevisfakta”).21 It is the substantive law that points out the facts that are of immediate legal relevance. 17  Ekelöf, Edelstam and Heuman, Rättegång IV [Procedure IV], 7th ed., Stockholm 2009 p.  67, Lindell, Civilprocessen [The civil procedure], 3rd ed., Uppsala 2012 p.  461–462, Westberg, Civilrättskipning, 2nd ed., Stockholm 2013 p.  377, Diesen, Bevisprövning i dispositiva tvistemål [Assessment of evidence in dispositive cases], in: Diesen and Strandberg, Bevisprövning i tvistemål. Teori och praktik, Stockholm 2012 p.  257, Gomard and Kistrup, Civilprocessen [The civil procedure], 7th ed., Copenhagen 2013 p.   639–640, 641 and 643, Skoghøy, Tvisteløsning [Disputesolution], 3rd ed., Oslo 2017 p.  753 and 895. 18  The Swedish Procedural Code chapter 35 §§   1, 2 and 8, the Norwegian Dispute Act §  21-2 (2) and (3), and the Danish Procedural Code §  344 first section. See for a description of the main hearing model in Scandinavian countries: Nylund, Introduction to the Preparatory Stage of Civil Proceedings, in: Ervo and Nylund (eds.), Current Trends in Preparatory Proceedings. A Comparative Study of Nordic and Former Communist Countries, Cham 2015 p.  1–15. 19  The Norwegian Dispute Act §  21-3 (2) leaves the court with such a competence in all cases, compare the Swedish Procedural Code chapter 35 §  6 which only leaves the court with such competence in so-called non-dispositive cases. 20 See for instance: Ekelöf/Edelstam/Heuman, fn.   17, p.  77–78, Gomard/Kistrup, fn.  17, p.  639, Backer, Norsk sivilprosess [Norwegian civil procedure], Oslo 2015 p.  279. 21 Lindblom, Sena uppsatser: Om domstolsprocessen, processmaterialet och den alternativa tvistlösningen [Late works: On court proceeding, the procedural material and alternative dispute resolution], Stockholm 2006 p.  178, Ekelöf/Edelstam/Heuman, fn.  17, p.  83, Strandberg, fn.  14, p.  51–52, Westberg, fn.  17, p.  376.

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Thirdly, one distinguishes the standard of evidence from the evaluation of evidence. It is the responsibility of the judge to evaluate the evidence based on a principle of free evaluation of evidence, which was developed in all Scandinavian countries in court practice during the late 1700s and early parts of the 1800s.22 The standard of evidence was considered for a long time as having been inherited in the principle of free evaluation of evidence, which implied that the judge was left with a discretion concerning that standard. However, a shift on the approximation to these aspects took place just before or after the Second World War when the standard of evidence was deemed a matter of law.23 Even though the principle of free evaluation of evidence in current Scandinavian law is based on general provisions in the procedural codes,24 standards of evidence are not regarded as based on that provision. Instead, the standards of evidence are regulated by other legal sources, typically general unwritten principles, statutory provisions for the specific claim in question, case law from the Supreme Court or a combination of these sources.25 A somewhat troublesome matter in all Scandinavian countries is the relationship between the standard of evidence (“beviskrav”) and the burden of proof (“bevisbörda”/“bevisbyrde”).26 Apparently, there are some differences between the prevalently used descriptions in Sweden, Norway and Denmark. Swedish scholars normally ask whether the more-probable-than-not standard or a burden-of-proof rule applies, which assumes a contrast between burden-of-proof rules and the more-probable-than-not standard.27 Most Norwegian scholars, on the other hand, would say that a burden-of proof-rule is mandatory even though the preponderance of the evidence standard applies, otherwise there would be no solution in 50/50 cases.28 Furthermore, descriptions of the relationship between the standard of proof and the burden of proof may also vary from one 22 Pihlajamäki, Evidence, crime, and the legal profession: the emergence of free evaluation of evidence in the Finnish nineteenth-century criminal procedure, Lund 1997. 23 See Brækhus, Et par bemerkninger til bevislæren [Some remarks to the doctrine of proof], Stud jur 1940 p.  5 –11, Eckhoff, Tvilsrisikoen (Bevisbyrden) [The risk of doubt (the burden of proof)], Oslo 1943 p.  14, Bolding, Bevisbördan och den juridiska tekniken [The burden of proof and the legal technique], Uppsala 1951 p.  163. 24  The Swedish Procedural Code chapter 35 §  1, the Norwegian Dispute Act §  21-3 (1), the Danish Procedural Code §  344 first section. 25  See for instance Nygaard, Faktum og jus, rettskjeldelæra og bevisreglane [Facts and law, the sources of law doctrine and the rules on evidence], Tidsskrift for Rettsvitenskap 2002 p.  33–61 (on p.  46), Ekelöf/Edelstam/Heuman, fn.  17, p.  81–82, Westberg, fn.  17, p.  372, Gomard/Kistrup, fn.  17, p.  6 49. 26  See Eckhoff, fn.  23, p.  14–21, Bolding, fn.  23, p.  148–158, Strandberg, fn.  14, p.  296–308, ­Robberstad, Om forståelse av bevisbyrde [On the understanding of burden of proof], Jussens Venner 2011 p.  65–86, Jerkø, fn.  11, p.  89–228. 27  Ekelöf/Edelstam/Heuman, fn.  17, p.  78–79, Westberg, fn.  17, p.  373, Nordh, Bevisrätt B. Bevisbörda och beviskrav [Evidence law B. The burden of proof and the standard of evidence], Uppsala 2011 p.  78. 28  See section IV below.

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author to another within a jurisdiction. While acknowledging these variations, one may still point out some common features of the relationship between a standard of evidence and a burden of proof in Scandinavia: the relationship depends on the definition of “standard of evidence” and “burden of proof” respectively. Most often, the burden of proof is defined as a rule pointing out the party who will loose on a matter if that matter has not been proved.29 The standard of evidence is normally defined as a decision threshold, which is a required degree of probability in favour of a proposition before that proposition is sufficiently proven. Therefore, the standard of evidence and the burden of proof are both decision-rules because they direct the decision that a court is to take in case of uncertainty. Functionally, then, the burden of proof and the standard of evidence are two aspects of one legal requirement.30 A little simplified, one may say that the burden of proof defines which party’s proposition that must be the more probable one, and the standard of evidence defines how much more probable that proposition must be. How hard it is to prove a proposition depends on both the burden of proof and the standard of evidence (and other factors). Hence, a theory on the standard of evidence must also deal with the burden of proof (and vice versa), and I will therefore include both aspects in the following descriptions of Swedish, Danish, and Norwegian law.

III. Swedish law Both the Swedish Supreme Court and legal doctrine have been important for the development of Swedish standard of evidence. Undoubtedly, judgments by the Supreme Court are the most important legal source for the law as it is, but essential parts of that law are best understood on the basis of certain influential doctrines. Characteristic of the Swedish debate on these matters, at least a few decades back in time, is a quite intense exchange of arguments between proponents of opposing schools of thought developed first and foremost by Ekelöf and Bolding during the decades following the Second World War: Ekelöf developed a grand theory where all parts of procedure law are handled within a framework consisting of defined basic concepts, goals and functions of substantive and procedural law. Inspired by the Uppsala school of legal philosophy, Ekelöf regarded maximization of social benefit or human welfare as the overall goal of law.31 Therefore, the main goal of procedure law was not just to 29  This covers the objective burden of proof only, not the subjective burden of proof; see Bolding, fn.  10, p.  99 on this distinction. The subjective burden of proof, however, is a mere result of certain legal matters. 30  See for instance Ekelöf/Edelstam/Heuman, fn.  17, p.  86 who regard this as the “bevisbördepunkt”, that is the degree of probability that a proposition must meet before it is sufficiently proven. 31  Ekelöf and Boman, Rättegång IV [Procedure IV], 6th ed., Stockholm 1992 p.  85–86.

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solve particular conflicts, but also to maximize the effect of substantive law and the purposes governing that law in society.32 Procedural law may contribute to such an effect when a materially correct verdict is given. According to Ekelöf, however, the most efficient way for courts and the procedural rules governing its practice to materialize the substantive law and its purposes is to provide for general preventive effects on future cases. 33 The main role of the burden of proof rules, then, was to create incentives for parties to produce and keep control over important evidence. Somewhat tabloid in nature, Ekelöf argued that the interests of a debtor who paid his debt and failed to save a receipt should be sacrificed on the altar of business.34 According to Ekelöf, a high standard of evidence called “styrkt” was mandatory for the creation of such incentives.35 Ekelöf never argued in favour of a more-probable-than-not standard principle; he never acknowledged such a principle as a part of Swedish law, and he strongly warned against developing it.36 It is worth noting that the standard of evidence, as given by Ekelöf, was not formulated on basis of a regular concept of probability. Ekelöf developed a concept of probability where also the degree of evidential robustness was considered in the assessment of evidential support.37 Ekelöf’s theory of evidence contained mathematical rules for the evidential weight, for instance when a proposition was supported by several pieces of evidence, when a piece of evidence gained strength on a chain of reasoning and when a body of evidence contained both positive and negative pieces of evidence.38 Ekelöf’s theory for evaluation of evidence was under intense debate in academic circles although its impact on practical life probably was very limited. Most probably, Bolding as well regarded maximization of welfare as the main goal of (procedural) law, but his theory was more inspired by the Norwegian scholar Torstein Eckhoff than by Ekelöf. According to Bolding, should courts concentrate on the case before them and do not attempt to establish incentives for future parties. Normally, the court should apply a more-probable-than-not standard because that would maximize the chances of a materially correct ­verdict, it would lead to the greatest number of materially correct solutions of conflicts in society and it would not favour one party before the opposite par­32  Ekelöf/Boman, fn.  31, p.  86 and Ekelöf and Edelstam, Rättegång I [Procedure I], 8th ed., Stockholm 2002 p.  20. 33  Ekelöf/Edelstam, fn.  32, p.  20. 34  Ekelöf/Boman, fn.  31, p.  91. 35  Ekelöf/Boman, fn.  31, p.  62 and 87. 36  Ekelöf/Boman, fn.  31, p.  103–107. 37  Readers familiar with American theories of evidence may see similarities with the theory developed in Cohen, The Probable and the Provable, Oxford 1977. 38  Ekelöf/Boman, fn.  31, p.  123 ff., Ekelöf, fn.  6 , p.  9 –26, Sören Halldén, Indiciemekanismer [The mechanisms of indicias], Tidskrift for Retsvidenskap 1973 p.  55–64, Stening, Om sammanställning av bevisfakta och deras bevisvärde [On overall assessment of evidentiary facts and their evidential value], Tidskrift for Retsvidenskap 1973 p.  6 4–85 and Stening, Be­ visvärde [Evidential value], Uppsala 1975.

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ty.39 However, the court should apply a higher standard if there were reasons for doing so. Such reasons would primarily be due to the consequences of a failure, which is when a materially incorrect verdict would be substantially worse for one party than for the opponent.40 A higher standard of evidence should apply in all criminal cases and in some civil cases, but the more-probable-than-not standard was the only acceptable starting point for a discussion on the standard of evidence in civil cases.41 Although the influence of Swedish theories of evidence and proof was at its height during the 1970s and 1980s, such theories were still vehemently debated after the deaths of Ekelöf and Bolding in the early 1990s. Bengt Lindell fronted and further developed a line of reasoning similar to the one held by Bolding.42 New theories have arisen as well. In contrast to Ekelöf’s and Bolding’s theories, the recently arisen theories are not grand theories, and they are more concerned with Supreme Court practice. Hence, we can deal with these new theories as a part of the introduction of current Swedish law: Current Swedish law on the standard of evidence (and the burden of proof) is not easily described. Although the standard of evidence and the burden of proof are governed by legal rules,43 no general rule on the matters is found in the Swedish Procedural Code (Rättegångsbalken). The Swedish Supreme Court, in the course of many years and numerous judgments, has developed such general rules, principles or guidelines,44 which are combined with a large number of special rules based on court practice or statutory provisions for certain substantive matters. Further complications arise due to the fact that many Supreme Court judgments are hard to interpret; it may be challenging to ascertain whether the court is dealing with general principles or is applying special rules for a specific type of cases. According to most scholars, Swedish law contains of a main rule for the standard of evidence and a (large) number of exceptions from that rule. While some Swedish authorities argue in favour of a flexible standard which vary from case to case,45 most scholars regard the Swedish system as containing non-flexible main rules and exceptions. In principle, a fixed standard set by binding legal sources provides for consistent use of the same standard of evidence for all cases of a certain kind. It also enables the parties to determine the standard before starting proceedings.46 39 

Bolding, fn.  23, p.  94–99, Bolding, fn.  10, p.  127. Bolding, fn.  23, p.  86–87. 41  Bolding, fn.  23, p.  93 and 116, Bolding, fn.  10, p.  125 and 127–128. 42  Lindell, fn.  10, p.  144–169. 43  See section II above. 44  F ex Heuman, fn.  8 , (p.  36) who included approximately 250 Supreme Court judgments in his study; see also Diesen, fn.  17, p.  268–269. 45  Bolding, fn.  10, p.  108–118, Lindell, fn.  17, p.  554–557. 46  Diesen, fn.  17, p.  268. 40 

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The main rule concerning the standard of evidence in civil case finds its legal basis in principles developed in legal doctrine and practice from the Supreme Court over many years.47 Keywords for the main rule are “visat” or “styrkt”48 , terms which when directly translated mean merely “shown” or “supported” and do not point towards a specific degree of probability. However, the main rule obviously requires more than a mere preponderance of probability. Most commentators regard the main standard of evidence as requiring a high degree of probability49, which is lower than the standard of evidence in criminal cases but significantly higher than a mere preponderance of probability. It has been suggested that “visat” or “styrkt” means approximately 90 % probability while the degree of probability required in a criminal case is approximately 98 %.50 Others interpret “visat” or “styrkt” as somewhat lower, but still high, using numbers like “approximately 80 % probability”.51 Others suggest that “visat” or “styrkt” is equivalent to the American standard of evidence called “clear and convincing evidence”.52 Swedish courts do not use such numerical expressions of a standard of evidence, but the Supreme Court has described the normal standard in civil cases as high on numerous occasions.53 When such a high standard of evidence applies as a main rule, the burden of proof will be of great importance. The burden of proof, however, is a challenging topic in Swedish law. While Swedish scholars tend to agree on which party has the burden of proof for a concrete matter, they tend to disagree on the explanation or justification. Although simplifying the matter, I will briefly mention three of the theoretical views: As indicated earlier, Ekelöf argued that the maximization of the purposes of the substantive law should be the guiding legal principle. Lars Heuman, on the other hand, argues that no single principle points out the burden of proof in all cases, but there are a number of guidelines that a court will have to balance.54 Heuman still finds that the so-called “bevis­ säkringsteori”, which means the burden of proof shall fall on the party who could have produced or secured more evidence, is applied in the vast majority of those 250 Supreme Court judgments that he analysed.55 Christian Diesen argues that the large number of cases following “bevissäkringsteorien” do not 47 

Heuman, fn.  8 , p.  66, Ekelöf/Edelstam/Heuman, fn.  17, p.  81, Westberg, fn.  17, p.  378. Ekelöf/Boman, fn.  32, p.  69–70, Heuman, fn.  8 , p.  67, Diesen, fn.  17, p.  262 and 301–302, Ekelöf/Edelstam/Heuman, fn.  17, p.  82, Lindell, fn.  17, p.  538, Westberg, fn.  17, p.  372 and 386. 49  Ekelöf/Boman, fn.  32, p.  69, Ekelöf/Edelstam/Heuman 2009 p.  85, Diesen, fn.  17, p.  302 and 305, Westberg, fn.  17, p.  372. 50  Ekelöf/Edelstam/Heuman, fn.  17, p.  85. 51  Diesen, fn.  17, p.  310. 52  Diesen, fn.  17, p.  310–311, see also Strandberg, fn.  14, p.  163. 53  Nytt Juridisk Arkiv (NJA) 1986 p.  470, NJA 1990 p.  93, NJA 1993 p.  764. When such numbers are used in legal doctrine, it is meant for pedagogical purposes only, see Ekelöf/ Edelstam/Heuman, fn.  17, p.  85. 54  Ekelöf/Edelstam/Heuman, fn.  17, p.  95. 55  Heuman, fn.  8 , p.  36 and 514. 48 

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express a main rule. According to Diesen, the main rule is that every party has the burden of proof for their allegations, and he explains the large number of cases based on “bevissäkringsteorien” by the fact that cases involving lack of securing of evidence are the most troublesome cases and therefore over-represented before the Supreme Court.56 In some of the cases used by Heuman, of the failure to secure evidence can lead to non-fulfilment of a burden of production or a criterion of robustness.57 When a party who has the burden of proof for more than one legally relevant element (“rettsfakta”), an important question arises: Does the standard of evidence relate to individual legally relevant elements or does it relate to all elements taken together? Although this question has not been thoroughly discussed in Sweden, the prevailing view seems to be that the standard is related to individual elements.58 That is in accordance with the large number of special rules on the standard of evidence since such rules may be related to just one or a few of the relevant issues in a case. Swedish law contains a large number of special rules, which establish exceptions from or modifications of the main rules on the standard of evidence or the burden of proof. Such special rules may be justified by a number of reasons, such as the effectiveness and the purposes of the substantive rule in question, the consequences of a materially incorrect verdict, the need to sanction violations of procedural duties or obligations related to securing and producing of evidence, or the need to lower the required standard if a specific matter is especially hard to prove. A court may quite often consider establishing a special rule, and in doing so, the court must balance a large number of arguments.59 A court may establish a lower standard of evidence for specific matters of a case, reverse the burden of proof on certain elements, establish a legal presumption, or apply some other mechanisms that in fact lower the required degree of evidential support. 60 On numerous occasions, a special rule is more or less explicitly established by a statutory provision. Typically, such rules do not define a standard of evidence for an entire field of law and not even for all elements of a substantive claim.61 Instead, such provisions typically set up a special rule for certain aspects of a claim or they only apply under certain defined circumstances. An example is found in the Swedish Bankruptcy Act, which contains several legal presumptions concerning opening of bankruptcy proceedings. A rule of high practical 56 

Diesen, fn.  17, p.  270–272. Diesen, fn.  17, p.  281–282. 58  Ekelöf/Edelstam/Heuman, fn.  17, p.  81, Diesen, fn.  17, p.  264–265, and Andersson, fn.  11, p.  260–268 on certain issues within criminal procedure. Other meaning: Lindell, fn.  17, p.  206. 59  Heuman, fn.  8 , p.  510 ff., Ekelöf/Edelstam/Heuman, fn.  17, p.  95. 60  Diesen, fn.  17, p.  308–309. 61  Westberg, fn.  17, p.  373–374. 57 

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significance is based on the Bankruptcy Act chapter 2 §  8, pursuant to which a debtor shall be presumed insolvent if he in an enforcement proceeding from the last six months could not cover a debt or has declared to stop his payments. That presumption is rebuttable, which means that the debtor must prove that he is solvent. Another statutory provision of high practical importance, and which has a relatively wide scope of application, is the Procedural Code chapter 35 §  5 concerning assessment of damages: “With respect to the extent of damages, if full proof cannot be presented at all, or only with difficulty, the court may estimate the damage in a reasonable amount. This may also be done provided that the proof can be assumed to entail costs or inconvenience not being in a reasonable proportion to the size of the damage and the claimed compensation concerns only a lesser amount.”

This rule applies when full proof of the damage or loss is impossible or disproportionally difficult to attain. Undoubtedly, this implies a lowering of the required degree of evidential support, but there is some disagreement as to the exact content of the rule. According to Lindell, any preponderance of the evidence suffices at least in some cases. 62 Lindblom, on the other hand, regards the assessment of damages as a matter of law, and the lowered standard of evidence applies only to those concrete factual elements that are difficult to prove. 63 Special rules may also be established on non-statutory basis. The Swedish Supreme Court has developed a large number of such rules, for instance the court has lowered the standard of evidence (or applied similar techniques) concerning causation in tort cases, 64 concerning whether an injury was inflicted non-voluntarily and is thereby covered by insurance,65 and concerning the establishment of a contract or certain aspects regarding the content of a contract66 . Although the Supreme Court has provided general guidelines or principles for the development of such special rules, it is hard to find a clear structure here and no consensus has been reached on this in the legal doctrine. However, most commentators seem to agree that the parties’ chances to provide good evidence are at least among the most frequently applied reasons to lower the standard of evidence. 67 When a court lowers the standard of evidence, it may apply the more-pro­ bable-than-not standard or it may apply other standards of evidence. In the 62 

Lindell, fn.  17, p.  468. Lindblom, Tradition, precision och schablon – om förenklad beräkning av skadestånd i process [Tradition, precision and “schablon” – on simplified assessment of damages in litigation], Festskrift till Bertil Bengtsson, Stockholm 1993 p.  319–349 (on p.  329–335). 64  NJA 1982 p.  421, NJA 1983 p.  606, NJA 1993 p.  764, NJA 2013 p.  145. 65  NJA 2006 p.  53. 66  NJA 2006 p.  638. 67  Ekelöf/Edelstam/Heuman, fn.  17, p.  105–136, Westberg, fn.  17, p.  388. 63 

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Supreme Court’s judgments, at least four or five keywords are found, each of them is supposed to reflect a distinct required degree of probability. Some of distinctions involved are rather subtle; for instance, does the Supreme Court insist that “probable” is another standard of evidence than “more probable than not”, and “clearly more probable than not” is a third standard.68 While insisting on all these distinctions, a complex field of Swedish law becomes even more of a challenge.

IV. Norwegian law While Swedish law contains a high standard of evidence as its main rule and numerous exceptions that lower the standard, Norwegian law conversely contains a low standard of evidence as its main rule and numerus exceptions that raise the standard. Norwegian law is based on the more-probable-than-not standard; more precisely that principle is a main rule that applies unless there is a legal basis or sufficient relevant arguments for an exception to be established. The development of that principle and the set of exceptions continued to apply for quite some time, and it is a typical example of interplay between legal doctrine and court practice. 69 Normally, one would not attribute the existence of a rule to one person, but the more-probable-than-not principle in Norwegian law is undoubtedly due to Torstein Eckhoff. Being published at a time when attempts had been made to analyse the burden of proof analysed within several abstract theoretical frameworks,70 Eckhoff, in his book “Tvilsrisikoen” from 1943, argued that the entire burden of proof issue could be solved in a simple, elegant manner. One of Eckhoff’s core arguments in favour of the more-probable-than-not principle was that the burden of proof would abolish if courts always accepted the most probable proposition.71 Another argument of his was that consistent application of 68 

Westberg, fn.  17, p.  387. Nygaard, fn.  25, p.  128 and 319. 70 Hagerup, Den norske civilproces anden del [The Norwegian civil procedure], 3rd ed., Kristiania 1918 p.  19–20 argued that the burden of proof and the standard of evidence should be defined in context of the substantial law and should be due to a combination of several arguments. Augdahl, Om bevisbyrden i tvistemål [On the burden of proof in civil cases], Oslo 1929 argued that the burden of proof as a main rule should be on the party who alleged an exceptional fact. Scheel, Grunntrekk av læren om bevisbyrden [Basic characteristics of the burden of proof doctrine], bilag til Tidsskrift for Retsvitenskap 1938 p.  22–47 and Skeie, Den norske civilprosess [The Norwegian civil procedure], annet bind, 2nd ed., Oslo 1940 p.  72–91 argued that the party who pleaded a fact that would ground a legal right or claim (“rettsbegrunnende fakta”) had the burden of proof for such issues while the opposite party had that burden for his defenses. Scheel and Skeie was inspired by German theories, especially Leonhard, Die Beweislast, 2nd ed., Berlin 1926. 71  Eckhoff, fn.  23, p.  6 4–66 and Eckhoff, Noen ord om bevisbyrde og bevisbyrdeteorier 69 

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the more-probable-than-not standard, if the slightest overweight of probability always suffices, in the long run would provide the highest number of materially correct judgments.72 Although such a standard ought to be the main rule, higher standards of evidence should apply in a number of occasions, for example if a material incorrect verdict would be substantially worse for one party than for the opposing party.73 Even though disagreements arose on minor aspects, Norwegian legal doctrine during the next five or six decades accepted the main parts of Eckhoff’s theory.74 Hence, these elements dominated Norwegian doctrine from 1943 onwards: The main goal of evidence law and procedural law in general is to maximize the impact of substantive law. The courts can most effectively achieve that goal by declaring materially correct verdicts, and the more-probable-than-not standard will produce the highest number of such verdicts.75 Moreover, a preponderance of the evidence standard is justifiable for a typical civil case because the consequences of a material incorrect verdict in disfavour of one party equal the consequences of such a verdict in disfavour of the opposite party.76 Even though Norwegian commentators accepted Eckhoff’s theory, time went by before the more-probable-than-not principle was established in court practice. For a long time the standard of evidence was regarded as a reasonable degree of preponderance, which meant that more than a preponderance of probability was required.77 However, a shift took place in the early 1990s. In a case from 1992 concerning a tort claim following from use of a contraceptive pill that allegedly caused a brain thrombosis, the Supreme Court applied the more-probable-than-not standard and underlined that such a standard was applicable in most tort cases.78 Shortly after the Supreme Court’s decision, Norwegian commentators argued that the judgment was a general breakthrough for a preponderance of the evidence standard in civil cases.79 Although such a generalization [Some words on burden of proof and burden of proof theories], Tidsskrift for Rettsvitenskap 1949 p.  298–320. 72  Eckhoff, fn.  23, p.  6 4. 73  Eckhoff, fn.  23, p.  112. 74 Augdahl, Norsk civilprosess [Norwegian civil procedure], 3rd ed., Trondheim 1961 p.  101–102, Bratholm and Hov, Rettergang i sivile saker [Proceedings in civil cases], Oslo 1973 p.  299, Nygaard/Hagen/Nome 1986 p.  133–163, Schei et al., Tvisteloven Kommentarutgave [The Dispute Act Commentaries], 2nd ed., Oslo 2009 p.  777–779, Hov, Rettergang i sivile saker [Proceedings in civil cases], 3rd ed., Oslo 2017 p.  249, Skoghøy, fn.  17, p.  911–916. 75  Augdahl, fn.  74, p.  101, Bratholm/Hov, fn.  74, p.  297 and 299, Graver, Bevisbyrde og beviskrav i forvaltningsretten [The burden of proof and the standard of evidence in administrative law], Tidsskrift for Rettsvitenskap 2004 p.  407–422 (on p.  478), Hov, fn.  74, p.  249, Skoghøy, Fn. 17, p.  914, Jerkø, fn.  11, p.  312. 76  Skoghøy, fn.  17, p.  914. 77 Norsk Retstidende (Rt.) 1974 p.   1160, Rt.  1979 p.  1224. See Nygaard/Hagen/Nome, fn.  10, p.  134, compare Hov, fn.  74, p.  251–252. 78  Rt.  1992 p.  6 4 (on p.  70). 79 Hov, Rettergang i sivile saker [Proceedings in civil cases], 2nd ed., Oslo 1994 p.  438.

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was not clearly supported in the Supreme Court’s judgment, the interpretation got support in later court practice. In the years to follow, the Supreme Court on numerous occasions has applied a preponderance of the evidence principle and/ or generally stated that a more-probable-than-not standard is the main rule for civil cases.80 Moreover, the legislator has recognized the more-probable-thannot standard as the main rule, both in the general reform of the civil procedure system in 2005 and in a number of reforms of substantial law.81 The more-probable-than-not standard has been debated during the very last decade. Criticism has been directed towards the theoretical foundations of the principle, especially the opinion that such a standard will produce the highest number of materially correct verdicts.82 Others defend the principle against these new attacks.83 However, since this debate primarily concerns the theoretical foundations or the justification of the more-probable-than-not standard, it is primarily related to the law as it ought to be. There is no disagreement on the law as it is, at least not concerning the more-probable-than-not standard of the evidence as the main rule. Nevertheless, there is uncertainty as to how the preponderance principle shall be understood or applied. Although most of the aspects involved here arise in connection with the preponderance principle, they are in fact matters concerning understanding of standards of evidence in general: Firstly, shall a standard of evidence be formulated in words or in numbers? Quite often, Norwegian textbooks and articles include statements where a standard of evidence is spelled out in numbers; typically phrases such as “51 % probability” or “more than 50 % probability” are used for the preponderance of the evidence standard.84 While most scholars use such statements for pedagogical purposes only and not as definitions of the standard, one scholar actually argued in favour of defining standards of evidence numerically, inter alia for the sake of clarity.85 However, such numerical definitions would hardly be of any practical importance, and the prevailing view is that one shall not define standards of evidence in numerical terms.86 The Supreme Court, in the vast majority 80  For example Rt.  1996 p.  864, Rt.  1997 p.  1, Rt.  2001 p.  320, Rt.  2003 p.  1671, (section  34), Rt.  2006 p.  1657 (section  31), Rt.  2007 p.  172 (section  42), Rt.  2010 p.  224, Rt.  2014 p.  1134 (section  45), Rt.  2015 p.  1246 (section  35), HR-2016-2579-A (section  33). 81  NOU 2001: 32 Rett på sak p.  459, NOU 2003: 15 Fra bot til bedring p.  8 0–82, Prop.  62 L (2015–2016) Endringer i forvaltningsloven mv. (administrative sanksjoner mv.) p.  123. 82 Strandberg, fn.   14, p.  463–493 and Robberstad, Sivilprosess [Civil procedure], 3rd ed., ­Bergen 2015 p.  285–287. Main parts of the criticism may be read in my paper “The More-probable-than-not Standard: A Critical Approach” in this book, p.  65–92. 83  Skoghøy, fn.  17, p.  911–916 and Jerkø, fn.  11, p.  295–330. 84  For instance Eckhoff, fn.  23, p.  13, Bratholm/Hov, fn.  74, p.  298, Skoghøy, fn.  17, p.  913, Hov, fn.  74, p.  257. 85  Jerkø, fn.  11, p.  262–295. 86 For instance Kolflaath, Bevist utover enhver rimelig tvil [Proven beyond reasonable doubt], Tidsskrift for Rettsvitenskap 2011 p.  136–196 (on p.  149–153).

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of cases, uses only words and not numbers to define the standard, 87 and all statutory provisions that define a standard of evidence do so in terms of words. Secondly, does a standard of evidence relate to the case as a whole or to one and one legally relevant element (“rettsfakta”)? That question is relevant whenever a case consists of more than one factual issue, for instance if a tort case consists of facts relating to negligence, damage, causation, economic loss, contributory negligence and prescription. Must there be a preponderance of probability for all these elements taken together, for some of them taken together, or will a preponderance for each of the elements separately suffice? According to standard theories of probability, the probability of a verdict being materially correct depends on the probability of each separate element multiplied by the probability of all other elements. In accordance with this, Jo Hov argues that the standard of evidence normally should relate to all relevant elements for the legal basis in question.88 In a tort case, then, there must be a preponderance of the evidence for the facts concerning negligence, causation, damage and economic loss taken together. Others argue that a standard of evidence normally relates to individual, legally relevant elements or to individual legal requirements.89 As Eivind Kolflaath notes, such a stance is hardly in line with a goal of materially correct verdicts.90 Nevertheless, since neither the Supreme Court practice nor other legal sources deal explicitly with these matters, one cannot rule out that such a stance is in line with the law as it is. In fact, several factors may force courts to decide on one (or a few) legally relevant matters in isolation, for instance if the proceeding has been split, if there is a special standard of evidence for one single element, or if a substantive matter becomes relevant only when a court has decided on another substantive matter.91 Thirdly, what must be more probable than what? Obviously, the more-probable-than-not standard implies that one proposition must be more probable than another, but there is room for discussion pertaining to exactly what has be more probable. A contested issue is whether “preponderance” shall be interpreted as one concretized proposition (x) being more probable than the negation of that proposition (non-x), or as one concretized proposition (x) being more probable than another concretized proposition (y). For instance, in a tort case concerning causation where the claimant alleges that a certain product was a cause of her brain thrombosis. Must the probability of the product being a cause be higher than all other alternative causes or must the product be more probable than one concretized alternative or the concretized alternatives? Most scholars 87 

For instance Rt.  1992 p.  6 4 (on p.  70), Rt.  2015 p.  1246 (section  35). Hov, fn.  74, p.  258–259, see also Eckhoff, fn.  23, p.  101–102 and Jerkø, fn.  11, p.  420–436. 89  Nygaard/Hagen/Nome, fn.  10, p.  109–110, Skoghøy, fn.  17, p.  941–943. 90  Kolflaath, Sannsynlighetsovervekt og kumulering av tvil [Preponderance of probability and cumulation of doubt], Lov og Rett 2008 p.  149–165 (on p.  155–156). 91  Strandberg, fn.  14, p.  4 45–459. 88 

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argue in favour of “more probable than not” or assume such an interpretation,92 which is in accordance with probabilistic theories. Others argue that the standard will be a matter of choosing between concretized versions.93 The Supreme Court has explicitly held that the preponderance standard shall be understood as “more probable than not”,94 which was generally declared in a case concerning whether a vaccine was a cause of the claimant’s multiple sclerosis. Even though “more probable than not” is the legally correct standard of evidence, one may in practice see a tendency towards concretized evaluations of evidence, at least that the evaluation of the evidence is limited to the propositions fronted by the parties. For instance, the Supreme Court’s evaluation of the evidence in the abovementioned case was related to the vaccine as a cause compared to other concrete, possible causes of the claimant’s multiple sclerosis.95 Fourthly, there is disagreement on the relationship between the more-probable-than-not standard and the burden of proof. According to Eckhoff and Hov, there is no need for a burden of proof when that standard of evidence applies.96 The prevailing view, however, seems to be that such a burden is unavoidable, otherwise one is unable to solve cases where there is no preponderance in either direction, which is if the evidence supporting one party’s proposition is as good as the evidence supporting the other party’s proposition.97 The latter stance is supported by Supreme Court practice, that is, for instance when the court generally states in a case that the burden of proof as a main rule is on the party who addresses a fact that changes the legal position.98 In addition, a number of statutory provisions reverse the burden of proof although the more-probable-thannot standard still applies. For instance the Pollution Act Section 59 places the burden of proof on the polluter, at least for one element under the requirement of causation. Therefore, the main rule is: More-probable-than-not is the standard of evidence and the burden of proof is on the party who addresses a fact that will change a legal position. There are numerous exemptions from this main rule. The exceptions may take the form of a reversed burden of proof, a change of the standard of evidence, or both a reversed burden of proof and a change of the standard of evidence. Since Norwegian law contain exceptions to the moreprobable-than-not standard, one may ask how many standards of evidence exist. 92 

Skoghøy, fn.  17, p.  915. Kolflaath, fn.  9 0, p.  156–162. 94  Rt.  2015 p.  1246 (section  35). 95 Strandberg, Beviskrav i vaksineskader etter Rt.   2015 s.  1246 [Standard of evidence in cases concerning injuries caused by vaccine after Rt.  2015 p.  1246 (Norwegian Supreme Court judgment)], Tidsskrift for Erstatningsrett 2016 p.  7–29. 96  Eckhoff, fn.  71, p.  304, Hov, fn.  74, p.  249. 97 Augdahl, fn.   74, p.  101, Nygaard, fn.  8, p.  56–57, Strandberg, fn.  12, p.  300, Skoghøy, fn.  17, p.  916–925. 98  Rt.  2015 p.  1246 (section  35). 93 

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It is well-known from statutory provisions, Supreme Court case law and legal doctrine that there exists a standard of evidence named “clear” or “qualified” preponderance of probability,99 which is higher than a mere preponderance but lower than the standard applied in criminal cases. It is also well-known that the standard of evidence normally applied in criminal case requires that any reasonable doubt shall benefit the accused, and this also applies in a few civil matters, such as in cases concerning conscientious objectors who avoid military service unless it is proved beyond reasonable doubt that he or she does not have the political or religious convictions reported.100 Probably, a standard called “godtgjort” may every now and then apply and such a standard has been regarded in some Supreme Court judgments, but not all of them, as a separate standard between “more probable than not” and “qualified preponderance of the evidence”.101 A special rule for the burden of proof or the standard of evidence may follow explicitly from a substantive law statute, such as the Compensation for Victims of Violent Crime Act section  3 fourth subsection which requires a “clear preponderance of probability” that the claimant had been victim to a crime that the state is liable for pursuant to that Act. Other provisions require an even higher standard of proof.102 Such exceptions may also be read into a statutory provision, typically justified by the purposes of the substantive law in question, even though such an exception does not follow clearly from the wording of the statute. For instance the Supreme Court in cases concerning the state’s or other public bodies’ liability following from an error in a public procurement process has held that full compensation for a private company will be received only if is proved by a clear or qualified preponderance of probability that the company would have got the contract if no error were made.103 The Supreme Court has also held that the presumption of innocence in ECHR art. 6 (2) contains a standard of evidence that applies in civil cases concerning administrative sanctions, which is a criminal offence under ECHR but not under domestic Norwegian law. According to the Supreme Court, the standard of evidence must be at least a clear or qualified preponderance of evidence before an administrative sanction can be imposed.104 99  Compensation for Victims of Violent Crime Act (voldsoffererstatningsloven) §  3 fjerde ledd, the Damages Liability Act (skadeserstatningsloven) §  3-8, Rt.  1999 p.  1363, Rt.  2001 p.  1062, Rt.  2003 p.  1671 (section  34), Rt.  2007 p.  1217 (section  67), Rt.  2008 p.  1409 (section  6 4), Schei et al., fn.  74, p.  779, Mæland, Kort prosess, 3rd ed., Bergen 2013 p.  198, Skoghøy, fn.  17, p.  913. 100  Rt.  1996 p.  572. 101  Rt.  2000 p.  199 (on p.  206 and 209), Rt.  2015 p.  24 (section  48), compare Rt.  2000 p.  845 and HR-2016-2579-A (section  32). 102  The Expropriation Act (ekspropriasjonsloven) §  2-2 second subsection, the Sales Act (kjøpsloven) §  62 first subsection, the Creditor’s Security Act (dekningsloven) §  5 -2 second subsection, §  5 -5 second subsection and §  5 -8, the Marriage Act (ekteskapsloven) §  51 first subsection, the Inheritance Act (arveloven) §  57 second subsection. 103  Rt.  2001 p.  1062 and Rt.  2007 p.  983. 104  See Rt.  2007 p.  1217 (dissent 3-2), Rt.  2008 p.  1409 (dissent 6-5), Rt.  2011 p.  910, Rt.  2012

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The Supreme Court, on the following reasons or arguments, has also developed several exceptions. Firstly, a higher standard of evidence may apply if the consequences of a materially incorrect verdict will be substantially worse for one party than for the opposite party.105 For instance, the Supreme Court has held that bankruptcy proceedings can be opened only if the debtor’s insolvency is proved with a clear or qualified preponderance of probability, which is justified because a wrong opening of such proceedings is regarded as severely worse than a wrong denial of such opening.106 Another example is adoptions, where the courts will regard a parent as having consented to have his/her child adopted only if there is no doubt on that matter.107 Secondly, a higher standard of evidence may be applied if the contested facts involve a “particularly worrisome” allegation against a party or a third person.108 For instance, the standard of evidence can be higher than a mere preponderance of probability if a party alleges that the opposite part caused an injury as a result of a severe criminal act,109 or if an insurance company refuses to pay compensation because they claim that the damage was voluntarily caused by the claimant.110 In a case before the Supreme Court in 2016, it was concluded that a mere preponderance of probability suffices in a case where an insurance company refused to compensate a deceased person’s wife and children because the death, allegedly, was a suicide.111

p.  1556 (dissent 3-2). However, it is far from clear that the Strasbourg court in fact requires such a standard of evidence in these cases, see for instance the Swedish case Lucky Dev v Sweden (application 7356/10), paragraphs 65–69, where a standard of evidence called “sannolikt” (“probable”) did not constitute a violation of Article 6(2). See also Strandberg, The Presumption of Innocence in Civil Cases, in: Alan Uzelac and C.H. van Rhee (eds.), Revisiting Procedural Human Rights, Cambridge: Intersentia 2017 p.  115–134. 105  Rt.  1939 p.  365, Rt.  2007 p.  1217, Rt.  2011 p.  1481, NOU 2001: 32 p.  459, Eckhoff, fn.  23, p.  112, Nygaard, fn.  8 , p.  55, Skoghøy, fn.  17, p.  933–935, Hov, fn.  74, p.  252–254, Jerkø, fn.  11, p.  207–209. 106  Rt.  2004 p.  118 and Rt.  2012 p.  1310. This standard of evidence does not apply if one of the presumptions of insolvency (the Bankruptcy Act §§  62 and 63) is applicable. 107  Rt.  1939 p.  365. 108  See Schei et al., fn.  74, p.  7 78–779, Mæland, fn.  99, p.  198, Backer 2015 p.  307, Hov, fn.  74, p.  253–254, Skoghøy, fn.  17, p.  935–936. 109  Rt.  1999 p.  1363, Rt.  2003 p.  1671, Rt.  2005 p.  1322, Rt.  2014 p.  1134. The special problems arising when a court, after one joint proceeding, concludes that a party is liable on civil basis although the evidence against him was too weak to justify a punishment, is described by Strandbakken, Applying different evidentiary standards to criminal conviction and compensation: A parallel and conflict enforcement of law?, in: Torbjörn Andersson (ed.), Parallel and Conflicting Enforcement of Law, Stockholm 2005 p.  110–128. 110  Rt.  1985 p.  211, Rt.  1987 p.  657, Rt.  1990 p.  1082, Rt.  1996 p.  1635. 111  HR-2016-2579-A. The judgment is criticized by Strandberg, Beviskrav i sivile saker – kommentarer til HR-2016-2579-A om beviskrav for selvmord [Standard of evidence in civil cases – comments to HR-2016-2579-A concerning the standard of evidence of alleged suicide], Tidsskrift for Forretningsjuss 2017 p.  50–73.

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Thirdly, a higher standard of evidence and/or a reversed burden of proof can be the effect if one of the parties could have secured evidence but did not do so. There is no consensus here, however, because some regard non-securing of ­evidence as a reason for the establishment of an exception,112 whereas others do not.113 There is no very clear example of the application of this ground for ­exception in the Supreme Court either, but the existence of such a reason for exception is mentioned in some of the court’s decisions,114 and some of the court’s judgments are best explained by the existence of such an exception.115 If one or several of these reasons are relevant in a case, an exception is still not straightforwardly established.116 An overall consideration of all relevant matters is mandatory before a conclusion can be taken as to whether an exception shall be established and, if so, what content that special rule shall have. If there is more than one reason to apply a higher standard of evidence, their joint argumentative force must be acknowledged. If there are one or several reasons to apply a higher standard and some reasons to stay with the more-probable-thannot standard, then one must evaluate which one of them is the most convincing. There is also a need to consider whether the substantive rule in question will lose its effectivity if the standard is set too high,117 which implies that courts are reluctant to apply a higher standard than the standard of clear or qualified preponderance of probability.

V. Danish law Danish law on the burden of proof and the standard of evidence deviates from both Swedish law and Norwegian law. The Danish rules, the systematization of those rules, and the arguments governing those rules differ from those found in other Scandinavian countries. Arguably, these Danish characteristics are best understood on background of certain Danish theories of proof.118 Characteristic features of Danish law derive from a theory advanced by Tybjerg all the way back in 1904. According to Tybjerg, all use of burden of proof rules was an admission of failure.119 Therefore, the main function of burden of 112 Nygaard, fn.   8, p.  55, Schei et al., fn.  74, p.  778, Mæland, fn.  99, p.  198 and Skoghøy, fn.  17, p.  936–938. 113  Eckhoff, fn.  23, p.  67 ff., Hov, fn.  74, p.  254–255 and Jerkø, fn.  11, p.  210 and 289–303. 114  For instance HR-2016-2579-A (section  38). 115  For instance Rt.  1989 p.  674 and Rt.  1990 p.  688. 116  For instance HR-2016-2579-A (section  42). 117  For instance Rt.  2010 p.  2 24. 118 Tybjerg, Om bevisbyrden [On the burden of proof], Copenhagen 1904, Dige, Bevis i kontraktsforhold [Proof in contractual relationships], Copenhagen 1945, Zahle, Om det juri­ diske bevis [On legal proof], Copenhagen 1976, and von Eyben, Bevis [Evidence], Copen­ hagen 1985. 119  Tybjerg, fn.  118, p.  1.

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proof rules should be a preventive one, which means less frequent use of such rules – the rules should encourage those who are in position of a legal right to litigate and deter those who are not in such a position from litigation.120 From this starting point, Tybjerg developed a theory where the allocation of the burden of proof, indirectly also the definition of the standard of evidence, should be determined by a balancing of two arguments; i) the burden of proof shall be allocated to the party having the best opportunity to provide evidence, and the standard of evidence shall be defined under consideration of how easy it is to provide evidence; ii) on the other hand, the rules should take into account the risk of misuse of the court system if the standard of evidence was too low.121 The most important criterion for the allocation of a burden of proof was the socalled “oppfordringskriterium”,122 after which the burden of proof shall be on the party who could most easily produce, secure or in any other way provide important evidence. Following up on the theory fronted by Tybjerg more than 70 years prior, Zahle developed the normative behavioural theory (“normativ adfærdsteo­ri”).123 At the heart of that theory is a requirement saying that any lack of proof should disadvantage the party who could and should have produced, collected, secured or in any other way got the evidence to court by the performance of an alternative evidential behaviour. If one of the parties negligently or intentionally destroyed or did not produce evidence that he was expected to produce, then that party could lose the case on those grounds even though his or her story was highly probable on the evidence that had been introduced to the court. Hence, Zahle was more concerned with the behaviour of the parties than what was typical for theories of evidence and proof at that time especially when compared with contemporary Swedish and Norwegian theories. A large part of Zahle’s doctoral thesis was devoted to a confrontation with the highly mathematically inspired theories that gained popularity in other Scandinavian countries.124 Even later Danish scholars stress that neither standards of evidence nor the evidential support of a proposition on a certain body of evidence can be quantified.125 Although current Danish law on the standard of evidence and the burden of proof is far from a straightforward application of the theories developed by Tybjerg and Zahle, several obvious similarities exist between those theories and Danish law. In current Danish law both the standard of evidence and the burden of proof are due to legal rules. The code of Danish civil procedure does not contain any general rule on the standard of evidence or the burden of proof, 120 

121  122  123  124 

125 

Tybjerg, fn.  118, p.  2. Tybjerg, fn.  118, p.  38–39 and 61. Tybjerg, fn.  118, p.  67. Zahle, fn.  118, p.  402–491. Zahle, fn.  118, p.  209–401. Gomard/Kistrup, fn.  17, p.  6 48.

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though. Danish literature contains several general principles for the burden of proof: It is claimed that the burden of proof for a given element normally is allocated to the party who could most easily provide evidence for that element;126 it is claimed that the party who alleges to have a claim has the burden of proof for the existence of that claim.127 It also claimed that the burden of proof shall be allocated in accordance with the substantive rules or the purposes governing these rules.128 Probably, such dropping of principles or general considerations are not meant as main rules in the meaning that deviating rules may be applied only if there is a special legal basis for it. Instead, these principles are general guidelines which often are relevant, but do not establish a main rule. There is no general main rule for the standard of evidence either. Danish courts often simply remark that party so and so has the burden of proof and that he or she has not met the prescribed burden without clarifying the standard of evidence.129 Danish law, then, is not dominated by a fixed main rule and a number of exceptions that apply if certain conditions are fulfilled. Gomard/Kistrup 2013 explains this lack of a fixed main rule:130 “A general statement on the degree of proof that suffices in civil cases … is not possible because the standard of evidence may be different for different alleged facts and in different contexts.” (p.  649, my translation)

Even though Danish law lacks a fixed main rule, it is possible – in vague terms – to describe what is normally required. Most commentators agree that the standard of evidence in a civil case is rarely as high as the standard in a criminal case;131 on the other hand, the standard is rarely as low as a mere preponderance of the evidence. According to Gomard/Kistrup, a mere preponderance of evidence will suffice in some cases, but in most cases a quite high degree of probability is required.132 The gap between the preponderance of the evidence standard and the beyond-reasonable-doubt standard is of course wide, but Danish law does not provide much information on what the standard of evidence normally is within this gap. 126 Jochimsen, Bevisførelse i retssager [Presentation of evidence in litigation], Copenhagen 2012 p.  4 4–45, Bang-Pedersen and Christensen, Den Civile Retspleje [The civil proceeding], 2nd ed., Århus 2010 p.  468. 127  Jochimsen, fn.  126, p.  4 4–45, Bang-Pedersen/Christensen, fn.  126, p.  468. 128  Bang-Pedersen/Christensen, fn.  126, p.   468, Petersen and Werlauff, Dansk retspleje ­[ Danish proceeding], 6th ed., Copenhagen 2014. 129  For example Ugeskrift for Retsvæsen (UfR) 1986 p.  124 H (on p.  125), UfR 1996 p.  1400 (on p.  1401), UfR 1997 p.  1409 V (on p.  1410), UfR 2009 p.  239 Ø (on p.  247). See also von Eyben, fn.  118, p.  12–17, Bang, Bevisbyrde og bevisvurdering i civile retssager [Burden of proof and evaluation of evidence in civil cases], Juristen 1998 p.  396–405 (on p.  396–397), Jochimsen, fn.  126, p.  149–150. 130  Bang, fn.  129, p.  405, Bang-Pedersen/Christensen, fn.  126, p.  468, Dahlager, Civile retssager [Civil trials], 2nd ed., Copenhagen 2015 p.  146. 131  Gomard/Kistrup, fn.  17, p.  6 49. 132  Gomard/Kistrup, fn.  17, p.  6 49.

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A further clarification of the standard of evidence is due to a concrete consideration made for the particular type of case, for specific types of issues or for the circumstances of one concrete case, and which is governed by a set of guidelines. Firstly, the nature and purposes of the substantive law in question is relevant.133 A rather high degree of probability is required for propositions of negligent causation of an injury if the claim is based on non-contractual tort law, while a lower standard of evidence for similar propositions suffices if the claim is based on contract law.134 The standard of evidence may be lowered; there can also be a revised burden of proof, for example on the issue of causation if it has been proven that the party acted deliberately or with gross negligence.135 Moreover, in the clarification of the standard of evidence, the goals and purposes of the substantive law in question will also be of relevance. For instance, the social protection function of labour law implies that the employer often has the burden of proof and must secure the evidence necessary to fulfil that burden.136 Secondly, when setting the standard of evidence, one must take into consideration the parties’ opportunities to provide evidence and whatever relevant customs there may be for securing of evidence in the particular kind of case.137 An example of use of an argument based on opportunities to provide evidence and expectations of such securing, is a case where an employer had not secured evidence when he alleged that an employee had resigned.138 Thirdly, one may pay attention to the consequences of an incorrect verdict. If an incorrect verdict will be substantially worse for the claimant than for the defendant, then a higher standard of evidence may be applied in order to protect the claimant against that risk.139 Danish law also contains general rules on so-called “oplysningsplikt”, which primarily are obligations of the parties to provide evidence no matter whether the evidence is positive or negative for that party.140 If a party has not produced the evidence that he or she was obliged to produce, then negative inferences or sanctions may be taken to the disadvantage of that party. Pursuant to the Danish Procedural Code §  344 nos.  2 and 3, such unlawful evidential behaviour can be taken into consideration under the evaluation of evidence. Rules on the bur133 Bang, fn.   129, p.   403, Gomard/Kistrup, fn.   17, p.   649, Bang-Pedersen/Christensen, fn.  126, p.  469, Petersen/Werlauff, fn.  128, p.  288. 134  Gomard/Kistrup, fn.  17, p.  6 49. 135  Bang, fn.  129, p.  403, Smith, Civilproces – Grundlæggende regler og principer [Civil procedure – Basic rules and principles], 4th ed., Copenhagen 2000 p.  150, Gomard/Kistrup, fn.  17, p.  650. 136  UfR 1996 p.  1400 V. 137 Bang, fn.   129, p.  398–399, Smith, fn.  135, p.  146 and 148, Jochimsen, fn.  126, p.  46, Bang-Pedersen/Christensen, fn.   126, p.   469, Petersen/Werlauff, fn.   128, p.   287, Dahlager, fn.  130, p.  147. 138  UfR 1996 p.  1600 V. 139  Smith, fn.  135, p.  147. 140  von Eyben, fn.  118, p.  56–62, Bang, fn.  129, s.  401, Gomard/Kistrup, fn.  17, p.  657–659, Jochimsen, fn.  126, p.  45–46.

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den of proof and standard of evidence may also be used to the disadvantage of that party. Moreover, some argue that a party who did not produce evidence can lose the case on that ground, or more precisely that the judgment can be based on the opposite party’s factual proposition.141 Such an effect is more than just a reversed burden of proof or a change of the standard of evidence; it is explained so that the rules on burden of proof and standard of evidence do not apply if a party should have provided full proof or substantially better evidence than what he or she presented to the court.142 While reversed burden of proof or changed standard of evidence only affects the required degree of probability, a loss based directly on the non-compliance with an obligation to provide evidence materializes no matter how probable a proposition is on the basis of the evidence that has been introduced. Although these general lines of reasoning on the standard of evidence and the burden of proof may cause some legal uncertainty, there is regularly a high degree of certainty as to both who must assume the burden of proof and what the standard of evidence normally is for a certain type of case. This is partly because these issues are very often regulated in special provisions for certain substantive claims.143 Furthermore, previous Supreme Court practice often defines the required degree of evidential support concerning a particular field of law or, a specific kind of claim or specific themes of evidence.144 Danish theories of evidence and proof, therefore, contain not only principles for civil cases in general, but also a number of lengthy, special analyses of the standard of evidence in a particular substantive context.

VI. Concluding remarks Scandinavian law consists of three models for the standard of evidence in civil cases: Swedish law contains a high main rule and a number of exceptions lowering the standard, Norwegian law contains a low main rule and a number of exceptions raising the standard, while Danish law does not contain any main rule at all. The arguments governing these rules do vary from one country to another. While Norwegian law first and foremost is influenced by the goal of maximizing the number of materially correct verdicts and to avoid the most severe consequences of an incorrect verdict, Danish law is more influenced by a preventive mechanism for which the key goal is to avoid destruction of evidence and to create incentives for parties to secure and produce evidence, and Swedish 141 

Gomard/Kistrup, fn.  17, p.  657, Jochimsen, fn.  126, p.  45, Dahlager, fn.  130, p.  146. Gomard/Kistrup, fn.  17, p.  657. 143  Smith, fn.  135, p.  150–153, Gomard/Kistrup, fn.  17, p.  661–663, Dahlager, fn.  130, p.  147. 144  Gomard/Kistrup, fn.  17, p.  663–669. 142 

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law is somewhat influenced by both these two aspects and additional other ones. Perhaps somewhat surprising for German-speaking readers: “Das Schwedi­ sche Überwiegensprinzip” does not actually exist and has never existed. Nor has that principle gained general acceptance in Swedish theory.

Postcommunist Legal Family

Standard of Proof in Czech Civil Procedure Jan Balarin

I. Introduction The Czech civil procedure belongs to the Central European model of procedural law. The Austrian Code of Civil Procedure of 18951 was applied in the territory of today’s Czech Republic until the end of 1950. Also the current procedural doctrine sticks to the tradition of the Austrian civil procedure and, in the case of the standard of proof, it is clearly based on the subjective approach – whether in the sense of its acknowledgment or criticism (as will be shown below). It is not original solutions but rather the development of the approach what makes the Czech standard-of-proof practice interesting. During the communist regime, courts were largely separated from any useful support of procedural doctrine for ideological reasons. After restoration of the democratic order, the judiciary was thrown into a dynamic reality where evidentiary process requires flexible standards of proof and a systematically-approached case law. Hence, courts have often to deal with difficult evidentiary situations by a trial-and-error method, and it is only in this rather bumpy way that a system of some kind is being created. However, this largely raw reality and uncoordinated development can be stimulating, even in a wider than just the Czech perspective; certain aspects of the topic may be revealed that may otherwise not be apparent.

II. Historical context As mentioned, the Austrian Code of Civil Procedure was applied in the Czech Republic until 1950. Then the paradigm of civil proceedings (at least formally) changed. In line with the spirit of communist ideology, emphasis in doctrine and legislation was put on the principle of material truth. This should have been understood as the opposite of traditional formal procedural categories (as e. g. loss of dispute by a default judgment) and analytical approach to the evidence evaluation (e. g. burden of proof or examination of judge’s discretion as regards evaluation of evidence). 1 

Act of 1 August 1895, 113/1895 RGBl.

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Simply put, it was regarded unnecessary to deal with what should be con­ sidered procedurally true (and under what circumstances) – what the judge was supposed to be subjectively convinced of, and in what way the judge should have reached such a conviction; the judge simply had to rely on a factual situation that was “objectively true”. In the words of V. Steiner: “A judgment could not be considered fair if not based on findings that are absolutely unquestionable and true. The findings of the court are its opinions and conclusions about the facts of the outside world, which are only true and unquestionable if they are in full compliance with the truth of life – with the life itself. We call such a complete agreement of the court’s findings with reality the material truth. The basic duty of the court is therefore to ascertain the real state of affairs as the only possible and correct precondition of its decision.”2

Many similar proclamations, which were primarily ideologically motivated, can be found in the procedural teachings from the Communist time. Their cornerstone was the effort to differ from the previous period (which provided rich scientific debates and schools of thought) via a simple and robust approach. However, the judicial practice interpreted the lessons of material truth in its own way, namely as a need for an undoubted or safe findings of facts,3 while the judge’s subjective conviction played only a minimal role.4 The probability factor while evaluating facts was not admissible5 – a very high (theoretically 100 percent) objectification of factual findings was uniformly required. This is the background for further discussion of the standard of proof in the current Czech civil procedure law.

III. Legislation Let’s first point out that the Czech procedural law is based on the standard principle of free evaluation of evidence. Pursuant to Section 132 of the Code of Civil Procedure (CPC),6 2  Steiner, Občanské právo procesní v teorii a praxi (The Law of civil procedure in theory and practice). Orbis: Praha, 1975, p.  226. 3  Including the causal links. See e. g. decision of the Supreme Court of the Czechoslovak Republic of 23 February 1962, Cz 121/61 [R 45/1962 civ.]: a circumstance “must be ascertained in a manner excluding any other alternative of cause of the damage”; judgment of the Supreme Court of the Czechoslovak Republic of 5 February 1971, 2 Cz 72/70: “Declaring invalidity of a legal act […] requires a secure finding that the party in question could not have recognized consequences of his or her conduct or controlled his or her actions”. 4 Similarly Macur, Postmodernismus a zjišťování skutkového stavu v civilním soudním řízení (Postmodernism and assessment of facts in civil procedure). Masarykova Univerzita: Brno, 2001, p.  138 et seq. 5  Judgment of the Supreme Court of the Czech Republic of 27 September 1990, 1 Cz 59/90 [R 21/1992 civ.]. 6  Act No. 99/1963 Coll., as amended.

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“the court shall assess evidence on the basis of its consideration, each piece of evidence independently and all of them in their interrelations; doing that, everything what has been established, including assertions of the parties, shall be taken into account.”

Obviously, this wording is close to Section 286 of the German Code of Civil Procedure7 and Section 272 of the Austrian Code of Civil Procedure.8 Unlike them, however, it does not indicate the necessary level of evidence that is to be submitted to the court – such a level can be de lege lata construed, if at all, from one of the introductory provisions of the CPC, which define the overriding objective of the civil procedure – Section 6 sets forth that courts shall proceed in such a way that facts which are disputed between the parties are “reliably established”. This is the state that has been in force since the first half of the 1990s, when the CPC was generally brought into accordance with standard (demo­ cratic) procedural principles through several amendments.9 In addition, the Czech Supreme Court inferred certain standard of proof from Section 153(1) CPC, pursuant to which “the court shall decide the case on the basis of established facts” – this is to imply that decisions cannot be made on the basis of probable facts.10 Such a conclusion, however, is not correct, as probability of truthfulness is not the opposite or a parallel category to the procedural “establishment” of facts, but rather one of the factors which is a prerequisite for such “establishment”. Like many other regulations of civil procedure, the Czech CPC also contains provisions reducing the required standard of proof for quantification of claims. Section 136 sets out that “where value of a claim can be established only at the cost of unreasonable difficulties or cannot be established at all, the court shall establish it at its discretion”. Although this rule applies primarily in the context of compensation for damage (or non-material harm), its application is not limited to those cases. It can be used for claims of any kind, provided that the burden of proof in quantifying the claim is, in a particular case (and not only with regard to the causal link) objectively too difficult to discharge.11 Although it is the court’s duty, not just discretion, to apply Section 136, courts have a tendency to approach the consideration-based determination of claims rather restrictively. The Czech procedural law, unsurprisingly, knows also the concept of “demonstration” (Glaubhaftmachung) in connection with decisions on preliminary injunctions [Section 75c(1) CPC] and in several other situations of interim 7 

Code of Civil Procedure (Zivilprozessordnung) of 30 January 1877, RGBl. S.  83. See note  1 above. 9  In particular: Acts No. 519/1991 Coll. and 171/1993 Coll. 10  E. g. judgment of the Supreme Court of 21 December 2010, 30 Cdo 3614/2009. 11  Another provision taking a similar approach, but only for the purpose of compensation for damage, is Section 2955 of the Civil Code: “If the amount of damage cannot be precisely determined, it shall be determined by the court by a fair consideration of individual circumstances of the case”. 8 

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or securing nature (securing evidence, orders for assets disclosure within distrainment measures etc.). In addition, a possibility of a mere demonstration of facts is (rarely) constructed by the case law for certain special procedural modes. In particular, the proceedings on sale of a pledge can be mentioned;12 on the most general level, it can be posited that those specific proceedings are concerned by this approach, in which a decision is, for certain qualified reason, issued at the beginning of the proceedings without ascertaining the defendant’s position, with the defendant having a relatively wide opportunity for subsequent defence. As in other jurisdictions, “demonstration” represents probabilistic decision-making, whereas the prevailing likelihood of truthfulness of the submitted allegations is generally considered sufficient.

IV. Standard of proof in the court practice 1. Case law However, it is not my intention to address these specific instruments. What I want to focus on is the general standard of proof in the Czech civil procedure. In this respect, let’s reiterate that unlike in the past, no specific standard of proof is explicitly prescribed; it is only required that facts be ascertained “reliably”. This concept can, of course, be interpreted in various ways (and this was very likely also the intention of the lawmaker); in any case though, it has a tendency towards a pragmatic approach, that is to say, a similar quality of fact finding as can be considered reliable even outside the procedural context (i. e. on the basis of which responsible decision-making in the real life can be made). The current wording of the CPC does specify neither the requirement of truth (in the objective or subjective senses) nor the probability or correspondence of factual findings with reality.13 Regardless of this, however, the contemporary decision-making practice of the Czech Supreme Court essentially follows the old case law without tangibly reflecting the described flexibilizing of procedural rules and it, paradoxically, further underlines the then doctrine.14 12 

Resolution of the Supreme Court of 23 November 2016, 21 Cdo 384/2016. it was the case until the CPC amendment through the Act No. 171/1993 Coll.: “Courts shall make decisions on the basis of the real state of affairs” [Section 153(1) CPC until 31 August 1993]. 14  In doctrinal (not ideological) respect. There are, nevertheless, some exceptions. See e. g. the judgment of the Supreme Court of 4 June 2008, 28 Cdo 1938/2008 (following the judgment of the Constitutional Court of 2 December 2004, II. ÚS 66/03), according to which “as for the assessment of circumstantial evidence, the Court considers necessary to point out that there is a significant difference in the standard of proof required in the civil procedure and in the criminal procedure. In the civil procedure, it is impossible to come to a conclusion that the burden of proof was not met simply because a fact was not proven beyond all reasonable doubt 13 As

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In 2014, the Supreme Court held that “facts substantiated merely by indirect (circumstantial) evidence can be regarded proven if – based on results of evaluation of that evidence – certainty (conviction) can be gained, beyond any reasonable doubt, that the facts really happened (they are true); [as regards facts based on indirect evidence] it does not suffice to come to a mere conclusion that it is possible (probable) that the facts are true.”15

This judgment was preceded by other decisions that primarily evaluated ­whether a certain person acted under a mental disorder (and therefore whether legal acts taken by that person were binding). The Supreme Court held that “it is out of the question to conclude on acting under a mental disorder just on the basis of a presumption or under factual circumstances that do not enable – despite evidential verification – to adopt an unequivocal factual conclusion pursuant to Section 132 CPC, to which it would be possible to apply the provisions on [invalidity of legal acts].”16

It was further ruled that “the results of verification of all legally relevant evidence subject to consideration […] shall not […] represent a possible or probably possible factual picture of the case, but must securely reflect the established facts without any trace of probability […]. If there are (albeit negligible) doubts about facts that correspond to the […] the relevant rule of conduct (legal norm), an application of the legal norm […] cannot be considered at all under this (uncertain) factual constellation […]. Consequently, the court can only apply a legal norm in a situation in which it has established the relevant facts, not in a procedural situation in which it (implicitly) admits a certain degree of inaccuracy of its findings.”17

In another judgment, the Supreme Court requests that the evidence “clearly and indisputably” prove the claimed facts.18 It is obvious that these positions achieved an extreme mark. They were even applied as an argument for a restrictive interpretation of specific legal arrangements. Thus, Section 133a CPC provides a rule on division of the burden of proof in discrimination disputes. The normative prerequisite for its application is that the “plaintiff shall specify to the court facts from which it can be inferred that there was direct or indirect discrimination by the defendant”. Among other things, this has to do with implementation of the Directive 97/80/EC on burden by the presented evidence. For the court to conclude that a fact has been proven, it is sufficient if it is possible to admit the factual conclusion with a high level of probability.” Further, reference can be made to the relatively extensive Supreme Court case law, which does not explicitly address the issue of the standard of proof (or, more precisely, does not make it subject to its review) but obviously does not consider it problematic to work with just probabilistic evidence [see VI(2) below]. 15  Judgment of the Supreme Court of 26 June 2014, 21 Cdo 2682/2013 [R 93/2014 civ.] (review of reasons of employment termination). 16  Judgment of the Supreme Court of 6 August 2009, 30 Cdo 352/2008. 17  Judgment of the Supreme Court of 21 December 2010, 30 Cdo 3614/2009. 18  Judgment of the Supreme Court of 19 May 2011, 30 Cdo 5226/2009.

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of proof in cases of discrimination based on sex. Its Article 4 requires that the plaintiff submits “facts from which it may be presumed that there has been direct or indirect discrimination” (similarly to Section 133a CPC). In spite of these relatively clearly phrased regulations, the Supreme Court refused that it would be possible to decide on allocation of the burden of proof on the basis of probability (irrespective how high), but the reasons justifying shifting the burden of proof must be proved by the ordinary standard.19 2. Criticism Of course, the described decision-making practice should be criticised, but it is not black and white. The bases of the Supreme Court’s deliberations have always been a certain evidence conglomerate, in the context of which the particular judgment does not sound illogical. The Supreme Court always emphasized evaluation of individual pieces of evidence in the overall context and the internal logic of the evaluation process.20 According to the Supreme Court, it is not possible to decide that a certain person acted under a mental disorder solely on the basis of a psychiatric expert opinion, if conclusion of the expert opinion is a mere probability of the disorder (albeit high). If other evidence is added (including evidence whose assessment may be largely subjective, such as witness testimonies), the judge may, in combination with the expert opinion, reach conviction of truthfulness of the mental-disorder allegation. Such an approach does not sound irrational on one hand, but on the other it raises the issue of relation of this concept to the subjective theory of the standard of proof. Why should a judge not be able to get convinced of the truth solely on the basis of a very probable expert opinion if it appears justified in the overall context of the case (and if the court reasonably justifies it)? See the closing phrase of Section 132 CPC – when assessing evidence, not only formal evidentiary procedure plays a role, but “everything what has been established, including assertions of the parties”. It is precisely these circumstances [though not only these, but also, for example, the common experience findings (Erfahrungssätze)] that create a link to the subjective approach to the standard of proof that the Supreme Court apparently loses sight of in rigorously “combating” the probability decision-making. The problem is that the Supreme Court’s approach appears to be determined not as much by a particular standard-of-proof theory as by other factors: (i) on the one hand, by an effort to make the evidence evaluation procedure as reviewable as possible (against such an effort nothing can be argued) and, (ii) on the 19 

Judgment of the Supreme Court of 11 November 2009, 21 Cdo 246/2008. judgments of the Supreme Court 30 Cdo 5226/2009 of 19 May 2011, 30 Cdo 5362/2014 of 25 February 2015, 29 Cdo 1103/2014 of 31 May 2016, or 21 Cdo 348/2014 of 28 January 2015. 20 E. g.

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other, by the perceived need to find sufficient justification for overturning the reviewed judgments on account of defective evaluation of evidence. This is obviously often carried out through the backward reasoning. Indeed, it has to be acknowledged that the evidentiary procedures in cases, in which most of the abovementioned decision were issued, were apparently defective for various reasons (e. g. because other evidence was available that could have led to clarification of the facts, but the court failed to take it into consideration and was satisfied with a probabilistic conclusion of an expert opinion, or because the court insufficiently or logically inconsistently substantiated its inferences). However, this does not mean that such a high emphasis should have been placed on the issue of the standard of proof or its absolutizing, at least because the Supreme-Court case law tends to a generalized application in the subsequent court practice. In this particular case, the status quo, as described, structurally endangers the procedural balance to the detriment of plaintiffs, with possible implications for enforceability of the law.

V. Intervention of the Constitutional Court 1. Keynote judgment: I. ÚS 173/13 In this situation, the Czech Constitutional Court entered the game, in 2014. Following a constitutional complaint against one of the judgments of the Supreme Court of the aforementioned type (the subject matter was to assess whether a person who signed a promissory note acted under a mental disorder), it declared that the existing practice did not reflect the “real difficulties of proving”, and that it was unconstitutional.21 The reasons were in particular: 1) The right to protection of property guaranteed by the Constitution. The Constitutional Court argued by “the constitutionally protected principle of legal certainty and protection of rights acquired in good faith”, concretely:     “The invalidity of a legal act due to a mental disorder […], even though effective ex tunc, is de facto established retroactively in subsequent judicial proceedings. It means therefore a considerable intervention into legal certainty of all persons involved in the relevant transaction. The interest in legal certainty must be protected in particular in relation to third parties who could have acquired rights from acting of [an otherwise] legally competent person in the good faith that her acts were valid” (point 37).

    In this statement (and especially in emphasizing the common procedural and substantive-law context), positive clues supporting the theory of factual presumptions and prima facie proof can be traced. 21 

Judgment of the Constitutional Court of 20 August 2014, I. ÚS 173/13.

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2) The right to a fair trial (point 44 et seq.). This right is reflected in the principle of equality of arms or opportunities for parties in a dispute, and inter alia also in the issue of burden of proof (“fair balance” between the parties to a dispute22). The Constitutional Court refers to the principle of equality of burdens, which has been already approved by it in the past, 23 and to the judgment of the European Court of Human Rights (ECHR) in the case Metalco Bt. v. Hungary,24 in which imposing an undischargeable burden of proof was viewed as a breach of the principle of equality of arms. Up to this point, it is possible to agree with the critical considerations by the Constitutional Court without any major reservations. However, the Constitutional Court comes to a controversial deduction that “a fair balance between rival legitimate interests is to be achieved best by setting a high degree of probability of proving that a legally competent person acted under a mental disorder which made her incapable of legal acting at that time. In order to come to a conclusion on achieving this high degree of probability, courts […] must carefully assess all relevant circumstances and evidence in this regard” (point 38).

I do not find the controversy as much in that the Constitutional Court works with the factor of probability (and moreover: with a “high” probability),25 but rather in the generalization it resorts to – it may seem that the Constitutional Court breaks up with the respected subjective approach (i. e. that the judge must come to a reliable finding of facts in the form of his or her conviction) towards the objective concept.26 In this respect, the Constitutional Court paradoxically approaches the criticized doctrine of the Supreme Court, which (at least optically) set such strict criteria for the subjective standard of proof that there was, in consequence, no difference compared to the absolutized objective theory. The matter is further complicated by the inappropriate formulation the Constitutional Court used: “the high degree of probability of proving” – which hints that “probability” is not a factor that contributes to the conviction of a judge, but an objectified criterion serving the assessment of the result of evidentiary process (proof). 22  Similarly, judgment of the Constitutional Court of 1 September 2016, II. ÚS 1847/16, point 15 or judgment of the Constitutional Court of 1 November 2016, II. ÚS 2899/16, point 9. 23  Judgment of the Constitutional Court of 26 April 2006, Pl. ÚS 37/04. 24  Judgment of the ECHR of 1 February 2011, No. 34976/05, point 24. 25 In this point, I differ from certain other authors, e. g. Lavický, Důkazní břemeno v civilním řízení soudním (Burden of proof in civil procedure). Leges: Prague, 2017, p.  36. 26  While the Constitutional Court formulates its conclusions in connection with evaluation of evidence on acting under a mental disorder, there is generally no reason why the same line of argument could not be applied also in proceedings with other subject (the procedural situation and evidentiary measures in disputes whose subject is assessment of acting under a mental disorder basically do not differ from an array of other cases, in which expert evidence is employed too).

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However, it is not possible to read the Constitutional Court’s judgment this way, as such an interpretation was probably not intended. The matter is to be seen through the prism of the previous case law of the Supreme Court, against which the Constitutional Court took a stand, even though it did not choose the correct form of expression in terms of procedural doctrine (similar to the earlier decisions of the Supreme Court that were distinguished by exalted formulations). 2. Reactions of the Supreme Court and doctrine Despite that, the Supreme Court’s response to the Constitutional Court’s challenge came quickly and was harsh in its criticism. In several almost identical decisions issued since 2015, 27 the Supreme Court rejected the Constitutional Court’s approach as alien to the Czech tradition.28 It stated that: “It is impossible to draw a conclusion on acts made under mental disorder on presumption of such a situation or under factual circumstances which, despite verification through evidence […], do not make it possible to draw a clear factual conclusion […].”

As can be seen, this statement stands not only against evaluation of evidence by probability as such, but also against the prima facie proof (albeit unwittingly, as can be hoped). On the other hand, the intervention of the Constitutional Court still had an effect upon the Supreme Court (despite the declared unequivocal rejection): the Supreme Court (instead of its previous statements that the facts need to be established “without any hint of probability”) used much more tolerant language, namely that “results of evidence evaluation enable the court to adopt a conclusion about truthfulness of the evaluated facts only if it is possible to be certain (convinced) that the facts really happened, without any reasonable doubt.”29

The doctrine turned against the aforementioned key judgment of the Constitutional Court too, but especially from the perspective of the subjective theory of the standard of P. Lavický30 criticizes the approach of the Constitutional Court and puts a uniform conservative subjective concept against it – the subjective element comprises the judge’s inner conviction of truthfulness of the facts, 27  Resolution of the Supreme Court of 27 May 2015, 30 Cdo 821/2015, judgment of the Supreme Court of 27 May 2015, 30 Cdo 844/2015, resolution of the Supreme Court of 24 June 2015, 30 Cdo 1203/2015, resolution of the Supreme Court of 11 May 2016, 30 Cdo 4853/2015, or judgment of the Supreme Court of 25 May 2016, 30 Cdo 5750/2015. 28  With reference to the article Vrcha, Tzv. “důkazní standard” ve světle nálezu Ústavního soudu sp. zn. I. ÚS 173/13 (The so called “standard of proof” in the light of the ruling of the Constitutional court I. ÚS 173/13). Soudní rozhledy (Judicial review) 10/2014, p.  347 (the author, serving as a Supreme Court judge, took part in a significant part of relevant decision making of this Court). 29  E. g. judgment of Supreme Court of 25 May 2016, 30 Cdo 5750/2015. 30  Lavický, Op. sub note  25, p.  35, 36.

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whereas the objective element is the requirement that the judge’s conclusions are substantiated enough and that the reasons are not in contradiction with the rules of logical thinking, natural laws or experience. The standard of proof is defined by the conviction of veracity of allegations without any reasonable doubts. The concept of the standard of proof based on probability is rejected, even if it was a high probability. P. Lavický’s approach therefore corresponds to the recent case law of the Supreme Court. 3. Further development The Constitutional Court, nevertheless, has not escalated the doctrinal dispute anymore. Recently, it has generally not been allowing complaints against the Supreme Court’s decisions in the aforementioned cases for review on the merits. The reasons of not allowing the review are either unrelated to the standard of proof, or – as the Constitutional Court puts it – the claimed violations do not reach the constitutional dimension (in terms of procedural arbitrariness, logical excesses, lack of reasons, etc.).31 Since the skirmish with the Supreme Court, the Constitutional Court raised an open requirement of connecting the standard of proof with probability only once (in 2015), in the context of assessing the amount of damages (“the mere fact that a circumstance is evidenced with a certain degree of probability only, is not a problem in civil proceedings and it does not mean that the court shall consider such a circumstance unproven”).32 However, even this single instance is enough to assume that the Constitutional Court does not intend to simply resign from its positions expressed in the original judgment of 2014 (I. ÚS 173/13) and accept the approach of the Supreme Court.

VI. Judge’s inner conviction and probability 1. The issue of probability It is clear that the conflict on the standard of proof within the Czech judiciary is not over. If we set aside the dichotomy of the objective and subjective approaches (which are primarily theoretical constructs, and I do not think the Constitutional Court seeks to abandon the requirement of judge’s conviction, despite ambiguous statements), it is apparent that the focus of the dispute is the question of “probability”. While the Constitutional Court does not have a problem to use the term (in the form of “high” probability), the Supreme Court 31  See e. g. resolution of the Constitutional Court of 6 December 2016, I. ÚS 2406/16, point 26 et seq. 32  Judgment of the Constitutional Court of 11 August 2015, I. ÚS 668/15, point 40.

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seems to be irritated. It is nevertheless obvious that there is no fundamental difference between the up-to-date argumentation of the Supreme Court and the approach of the Constitutional Court; the whole issue is rather a question of methodology. Taking into account that the Supreme Court uses the wording: “certainty (conviction) that the facts really happened, without any reasonable doubt”, it is only another form of expression of the idea that is essentially the same. While in the one case the articulation is a generally linguistic-semantic one, in the other case a formally logical representation is preferred, which is – however – only approximate and lacking ambitions of a specific quantification. This consideration applies, of course, only if probability is considered as a factor on the basis of which judges make their personal judgment (conviction) and not an external moment, which objectively casts doubt on the judge’s conviction. Shall this condition be fulfilled, there is no reason to reject probability as a criterion on which the judge can build his or her conviction of the facts (especially considering that probability is routinely used in decision-making processes in conditions of uncertainty).33 I perceive the efforts to eradicate “probability” from the process of evaluation of evidence as artificial; its only practical effect is that the parties are deprived of one of the instruments (but of a relatively substantial one) how to at least roughly objectify their chances. 2. Probability in the context of particular types of evidence It is apparent (in the Czech judicial practice it is so) that the problem of probability is being examined mainly in the case of means of evidence whose value is at least approximately exactly expressed (in terms of credibility or information value). If probative value is determined by subjective perception, including intuition or a variety of heuristics (which are – nevertheless – only rarely articulated in the decision reasons), any control of the process of creating the judge’s conviction is made much more difficult or almost impossible (except correcting apparent logical excesses). In this sense, expert opinions happen to be undeserved victims of the aversion to the probability issue. Experts do not usually proceed by creating an “inner conviction” of the subject of their examination, but use a general professional methodology instead, which very often includes expressing conclusions by levels of probability (they do not have another option, either). 33  Within the civil procedure, the factor of probability is applied without any controversies in the case of evaluation of hypothetic or future facts. See e. g. Sections 1566, 1729(2), 2915 or 2967(2) of the Civil Code or the Supreme Court judgment of 29 April 2015, 25 Cdo 1381/2013 [R 81/2015 civ.] (hypothetical decision of a patient about medical services if given correct information), or resolution of the Constitutional Court of 6 December 2016, I. ÚS 3696/16, point 12 (assessing parent’s income for the purpose of child maintenance) and generally Tichý, Pravděpodobnost v hmotném právu a míra důkazů (skica o možné změně paradigmatu v NOZ) [Probability in substantive law and the standard of proof (a study on possible change of paradigm in the Civil Code)]. Bulletin advokacie 12/2013, p.  28–32.

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On the other hand, carefully searching the case law, it can be established that not all decisions based on expert opinions are challenged equally often. In certain types of expert opinions or – perhaps more precisely – in certain types of disputes, probability is obviously seen less problematic than in others. In this respect, we are dealing with empirically demanding issues. As already indicated, much of the cases, in which the Supreme Court opposed a decision based (exclusively) on an expert’s probability-conclusion, concern invalidity of legal acts made under a mental disorder.34 The Supreme Court however lacks the same determination when dealing with, for example, expert opinions in the field of graphology, which also often put expert conclusions in terms of probability.35 Another well-known example is proceedings on determination of paternity.36 And it seems that “high probability” is not an obstacle even in determining the causal link of a bodily harm.37 Why? The answer must be sought in the relation of the subject-matter of the proceedings to the factual basis of the dispute assessed from the perspective of substantive law. Let’s note, for example, that if the outcome of a dispute depends on assessment of mental health of the acting person, a legal presumption of mental health applies under the current law [Section 4(1) of the Civil Code]. Before the present Civil Code entered into force (i. e. before 2014), such legal presumption was not provided for, but the rule of mental health was in place anyway, at least as a factual presumption.38 However, similar presumption, whether legal or factual, cannot be applied in most cases when authenticity of signature is assessed. Such situation is entirely binary – the signature is either counterfeit, or not. It would be inappropriate to require the party concerned to prove authenticity of the signature “with34  E. g. judgment of the Supreme Court of 6 August 2009, 30 Cdo 352/2008, judgment of the Supreme Court of 21 December 2010, 30 Cdo 3614/2009, judgment of the Supreme Court of 24 April 2013, 30 Cdo 718/2013, judgment of the Supreme Court of 6 November 2013, 30 Cdo 3227/2013, judgment of the Supreme Court of 25 May 2016, 30 Cdo 5750/2015 or judgment of the Supreme Court of 27 May 2015, 30 Cdo 844/2015. 35  E. g. judgment of the Supreme Court of 21 December 2009, 29 Cdo 3478/2007 or judgment of the Supreme Court of 25 February 2015, 30 Cdo 5362/2014. Similar approach may be observed especially in cases which are not accepted to review on the merits, despite being based on graphological expert opinions with a probabilistic conclusion (e. g. resolution of 17 October 2013, 29 Cdo 1595/2011 or resolution of 26 February 2014, 29 Cdo 3866/2013). Just as in the case of psychiatric expert opinions, the Supreme Court consistently (and correctly) emphasises that graphological expert opinions are not to be evaluated as isolated pieces of evidence but only in the context of other evidence which the court has to gather. Nevertheless, it is clear that in the field of graphology there is a tendency by the Supreme Court to defend expert opinions in the context of other evidence (at least in prominent published cases), while psychiatrical expert opinions are usually judged very strictly. 36  E. g. Opinion of the Supreme Court of the Czech Socialistic Republic of 14 November 1979, Cpj 41/79 [R 20/1980 civ.] or Svoboda, Dokazování (Evidence). ASPI Publishing: Praha, 2009, p.  51. 37  E. g. judgment of the Supreme Court of 27 May 2015, 25 Cdo 259/2012. 38 Identically Lavický, in Lavický, et al.: Občanský zákoník I. Obecná část (§  1−654) (Civil Code I. General Part). Komentář. Praha: C. H. Beck, 2014, p.  66.

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out any trace of probability” when (i) on the one hand, such evidence is often objectively impossible to provide (and besides that usually only circumstantial evidence is available whose information value is just remote in relation to the core fact of the “signature” of the document) and (ii) on the other hand, the party encumbered by the burden of proof itself has not neglected anything with respect to the disputed circumstances, so nothing can be inferred to its detriment. Analogical considerations apply in the case of harm (or proving the causal link thereof) in tort law. It would be highly inappropriate to construct any factual presumption against the injured party who did not expect the tort neither had any reason to expect it [a factual presumption can of course apply against the (alleged) tortfeasor, but this will be discussed further on]. 3. Standard of proof or evaluation of evidence? Based on all these considerations, a question arises whether the problem of the Supreme Court does not actually consist in confusing the issue of evaluation of evidence (in the context of unarticulated factual presumptions) and the standard of proof; in other words, whether the whole controversy is as not much about the probability or certainty as about the value of circumstantial evidence. I believe this is actually the case. To illustrate the point, I will use the above-mentioned prominent Supreme Court judgment of 26 June 2014 whose conclusion reads: “Facts substantiated merely by indirect (circumstantial) evidence can be regarded ­proven if – based on results of evaluation of that evidence – certainty (conviction) can be gained, beyond any reasonable doubt, that the facts really happened (they are true); [as regards facts based on indirect evidence] it does not suffice to come to a mere conclusion that it is possible (probable) that the facts are true.”39

The subject of the dispute was assessment of validity of an immediate employment termination by the employer due to breach of obligations by the employee, namely (to put it simply) by endangering health of co-workers by adding laxatives to their beverages. The employee did not confess to the wrongdoing, even though significant indications testified against him. Nevertheless, it was not reasonably excluded that harm was caused otherwise. In this context, the conclusion of the Supreme Court appears to be materially correct (because reasonable doubts of the employee’s wrongdoing remained and no factual presumptions could have been invoked against him). However, the Supreme Court’s observation that probability cannot be enough to meet the burden of proof must be rejected as overly generalizing. Proof based on probability may suffice for judge’s conviction very well too if the judge is able to give consistent reasons for his or her position based on the concrete evaluation of evidence (§  132 CPC in fine). 39 

Judgment of the Supreme Court of 26 June 2014, 21 Cdo 2682/2013 [R 93/2014 civ.].

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VII. Factual presumptions and prima facie proof This brings us to the last (but important) point related to the issue of the standard of proof, namely the factual presumptions (res ipsa loquitur) and prima facie proof.40 1. Starting line If we return to the incriminated judgment of the Constitutional Court41 which links the burden of proof to a (high) probability rate, it shall be noted that this conclusion is not generally incorrect, but in itself it cannot be upheld in a procedural system based on the subjective approach to the standard of proof. A judgment based on probability cannot be applicable anytime, but only if supported by an additional criterion capable of justifying the judge’s conviction of the facts of the case. Such a criterion may typically consist in a factual presumption, or – more precisely – a proof that prima facie supports the judge’s conviction of the facts. Virtually, factual presumptions apply in the court practice anyway; the law enforcement would be unacceptably difficult if not impossible in many situations without them. For example, established case law applies that presumes mutual agreement of parties (and therefore establishment of a contract) when a party has signed a contract, even though not reading its terms.42 However, there exists no systematic classification of this topic, or practically oriented doctrine of prima facie proof. The case law of the Supreme Court has recently successfully coped with the issue of the secondary burden of allegation (sekundäre Dar­ legungslast): an explanation duty was imposed on the party not encumbered with the burden of proof, on the condition that the party presenting evidence “provides at least some ‘supporting points’ related to the facts of the case, and thus the likelihood of the allegations gets increased”;43 anyway this is a specific category that applies only in the conditions of information de­ficit on the side of one of the parties.44 40  For the context with German procedural law see Greger, Hodnocení důkazů a míra důkazů (Assessment of evidence and standard of proof), in Tichý, Hrádek, et al., Prokazování příčinné souvislosti multikauzálních škod (Proving of causation of multicausal damages). Centrum právní komparatistiky. Právnická fakulta Univerzity Karlovy v Praze (Centre for comparative law. Law Faculty of the Charles University, Prague): Praha, 2010, p.  69, 76. 41  Judgment of 20 August 2014, I. ÚS 173/13. 42  E. g. judgment of the Supreme Court of 20 October 2016, 33 Cdo 1371/2016. 43  Resolution of the Supreme Court of 16 December 2011, 22 Cdo 883/2010 (similarly e. g. resolution of the Supreme Court of 21 April 2016, 29 Cdo 5069/2015); following the judgment of the Constitutional Court of 28 February 2008, ÚS 987/07. 44  A similar problem (striving for a closer correlation between procedural burdens and enforced claims under the conditions of factual uncertainty) is subject of the theory of loss of chance. In this respect, the Constitutional Court approached the issue in an open-minded manner at first (resolution of 12 August 2008, I. ÚS 1919/08), only to completely change its

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However, prima facie proof remains aside of attention. In the case law of Czech courts, it is referred to only exceptionally, mainly when taking over arguments of the ECHR – in particular, decisions on discrimination in education and, within this context, the issue of shifting the burden of proof following a prima facie proof of discrimination.45 Furthermore, case law according to which the disproportionate length of the court proceedings is in itself prima facie proof of moral harm is worth noting46 (although the Supreme Court sometimes promiscue links this situation with the problem of notorious facts47). Otherwise, the Supreme Court argues with prima facie proof only very sporadically – e. g. a 2017 judgment48 can be appreciated in which certain facts were taken as prima facie proof to assess the party’s knowledge of facts to which the commencement of the subjective limitation period is related (although being rather a contextual note). 2. Unarticulated application Nevertheless, predominantly, if the Supreme Court tends to apply prima facie proof, it does not do so explicitly; the nature of the Court’s argumentation is then to be recognized from the overall context only. Certain examples concerning compensation for bodily harm are provided by T. Holčapek, when the Supreme Court deals with the discussed issue in a more-or-less questionable way by presenting a certain chain of implications, the input of which is a probability consideration and the output a clear conclusion on the causal link, although no new facts or inferrence on the standard of proof or shifting the burden of proof enters this logical sequence.49 attitude later on (judgment of 20 December 2016, III. ÚS 3067/13). The theory of loss of chance, however, is not only a procedural issue but also (and especially) a matter of general tort law – allocation of the damage between the tortfeasor and the injured party (though the Constitutional Court treats the substantive and procedural aspects rather ambivalently, see points 35–37 of the judgment). For our purposes, it is interesting that even the Supreme Court, in this context, openly puts forth factual conclusions based on probability, expressed in percentage figures (e. g. resolution of 30 July 2013, 30 Cdo 3377/2011, which was later vacated by the abovementioned judgment of the Constitutional Court). 45  See judgment of the Supreme Court of 13 December 2010, 30 Cdo 4277/2010 (especially following the ECHR judgment D. H. and others v. the Czech Republic of 13 November 2007, No. 57325/00). 46  Judgment of the Supreme Court of 17 February 2016, 30 Cdo 520/2014 (following the opinion of the Civil and Commercial Collegium of the Supreme Court of 13 April 2011, Cpjn 206/2010 [R 58/2011 civ.] and corresponding cases of the ECHR, especially the judgment Apicella v. Italy of 29 March 2006, 64890/01, which, however, do not employ prima facie proof but a “strong but rebuttable presumption”). 47  E. g. judgment of the Supreme Court of 15 March 2012, 30 Cdo 2555/2010. 48  Judgment of the Supreme Court of 4 May 2017, 28 Cdo 2373/2016. See also the judgment of the Supreme Court of 20 January 2016, 30 Cdo 2865/2015, with regard to the prima facie assessment that certain fact is a notorious circumstance (the subject matter generally corresponds to that referred to in note  47). 49  Holčapek, Dokazování v medicínskoprávních sporech (Taking Evidence in medical lit-

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Another illustration may be a matter decided in 2016,50 the subject of which was compensation for fetal hypoxia during a childbirth. The medical documentation was missing as it was printed on the thermal paper which faded in the meantime. It has also been proven that the plaintiff was not continuously monitored during the childbirth even though she should have been monitored. In this situation, the Supreme Court reversed the burden of proof against the defendant (the health care provider) but it did not apply the theory of the secondary burden of allegation, let alone the prima facie proof, but (in the given context as well as doctrinally) very controversial theory of non-proving negative facts (in particular: the applicant’s allegation that fetal hypoxia was not detected in time). The Court justified its steps by the principle that no one may benefit from her dishonest or unlawful conduct (nemo turpitudinem suam allegare potest), namely in connection with spoiling the medical records. However, the situation where a person who inflicted harm breached a general duty of care towards the injured person who therefore suffered harm in the given material or time context is a model basis for application of the prima facie proof. This conclusion is further reinforced by the negligence on the part of the defendant, which resulted in loss of evidence. 3. Necessity of a coherent approach So, the Supreme Court is, basically, heading in the right direction, but it happens in a manner that is inconsistent and doctrinally problematic. Although, in particular cases, it may be irrelevant how the court reached its (materially correct) conclusion, the absence of a systematic bottomline burdens the procedural environment and complicates the access to justice. If the Supreme Court were to adopt a consistent concept of prima facie proof, it would be possible to openly rely on implications derived from facts of a more general nature (such as failing to meet a duty of care or breaching an obligation to act in good faith), which have a mere probabilistic character in relation to the direct facts of the case. This would be, of course, possible only if certain preconditions are met – which may consist in assessment of the parties’ relationship from the perspective of substantive law as well as taking account of the parties’ attitude to their procedural obligations (such as the problem of withholding evidence). Besides clearly benefiting the fair decision-making, such an approach would comply with the existing formal procedural law too. A reference can be made to the practically oriented requirement of “reliable” (i. e. not necessarily ultimately true) ascertaining of disputed facts, as provided by Section 6 CPC.

igation). Wolters Kluwer: Praha, 2011, p.  139 et seq. (especially with regard to the judgment of the Supreme Court of 30 September 2003, 25 Cdo 1062/2002). 50  Resolution of the Supreme Court of 28 June 2016, 30 Cdo 1144/2014.

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VIII. Conclusion The issue of the prima facie proof should remain the central idea of this discussion. It is obvious, that the described positions of both the Czech Supreme and Constitutional Courts are extreme from a certain point of view. The Supreme Court chose to remedy the logically defective evaluation of evidence or incomplete evidence procedures before lower courts by strictly demanding a very high standard of proof; situations where such a standard was over the line, were then dealt with various ad hoc arguments that were largely unpredictable to the parties. The Constitutional Court subsequently tried to correct this decision-making practice, but, unfortunately, it did so by shifting the standard of proof towards probabilistic decision-making without providing any further guidance. Let’s repeate that, in my view, substantiating a decision by probability is generally acceptable also in a subjective-approach jurisdiction like the Czech Republic; moreover, it is even necessary in many situations if fair decision is to be reached. At the same time, though, probability cannot be applied in an undifferentiated manner but it must be supported by a certain complementary factor (of whether formally logical, contextual or empirical nature) that justifies the judge’s conviction that the facts are “reliably” established. The prima facie proof in connection with factual presumptions could essentially prove such a guideline. In the future, these categories should (unlike in the current practice) not be suppressed or concealed in argumentation, but instead they should be actively worked with. Creating relevant case law and systematics of these issues is an urgent task for the Czech procedural doctrine and, consequently, also the judicial practice.

Romanic Legal Family

The Standard of Proof in France Emmanuel Jeuland *

I. Introduction According to the Scandinavian scholar Olivecrona “Law is fact”1. This claim seems to be increasingly true and may explain the importance and the difficulty linked to the standard of proof issue. The advantage I have in relation to many other participants in the colloquium is that this concept of standard of proof does not exist in France. I have, with the greatest difficulty, found four academics who mentioned that notion in a comparative approach, underlying the fact that the concept did not exist in France. However, I have also found many French academics specialized in European and Competition law, who have to use this concept since it is part of European Law. Nevertheless, these colleagues have not attempted to turn it into a French concept. Even the translation of the expression “standard of proof” is still to be determined. We actually use different terms: “norm of proof”, “degree of proof”, “reasonable conviction” (ALI/Unidroit), and more and more “standard de preuve”, which is the literal translation of “standard of proof” (Vergès)2 . On the European Translation Services Centre’s website (IATE), I found the literary “degree of conviction of the procedure” (degré de conviction de l’instance). This shows the difficulty we are faced with in integrating this standard of proof concept. It is not natural to us and certainly is what we may call a legal transplant. On the downside, with respect to my colleagues coming from countries where the concept has been at least discussed about, I often have to face stereotypes that are still being conveyed about the French system, whether they originate from domestic or international sources. For example, I frequently hear that the French system is based on intimate or deep-seated conviction in criminal as well as in civil law3. It is certainly true regarding criminal proceedings *  I would like to thank Magne Strandberg (see his contribution in this book) for our discussions and all the information he gave me on this subject he knows very well. 1  Law as Fact, London: Oxford University Press, 1939. 2  Vergès, Vial, Leclerc, Droit de la preuve, 2015. 3  The standard of proof in Germany is better described as a “conviction raisonnée” rather than the French “conviction intime”; see Deppenkemper, Beweiswürdigung als Mittel prozessualer Wahrheitserkenntnis: Eine dogmengeschichtliche Studie zu Freiheit, Grenzen und revisionsgerichtlicher Kontrolle tatrichterlich, Europe n°  3, Mars 2016, comm. 104

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since there is a specific provision to that end. It is not that clear as far as civil proceedings are concerned. Even though the standard of proof and more specifically the preponderance of evidence may come from Voltaire who was in favour of intimate conviction in French criminal and civil law but favoured the concept of higher probability in criminal law. According to Leubsdorf4, a legal historian, Voltaire’s book on probabilities (Essai sur les probabilités en fait de justice 1772) was influential in England. It was first published in London in 1774 and has been quoted many times since then by legal scholars. It is also often said that civil law countries have a subjective approach to the standard of proof. What counts would be the judge’s conviction. The situation of France is specific since it still partially has a system of legal proof, even though the principle of free proof has been prevailing since a 2016 statute. I will try to show first that the concept of standard of proof does not really exist in France, and, in my opinion, for good reasons (part II); but secondly that this concept is emerging, and, to me, not only for good reasons. As a consequence I will present and defend a relationist approach to the level of proof (part III).

II. The Absence of Standard of Proof in France The French system of proof in civil procedure directly dates back to the Middle Age. It has its own style, which favours written evidence. Additionally, the Court of Cassation’s role and the French conception of evidence do not make way for deeper interest in the level of evidence. As a result, the concept of standard of proof does not really exist. Much is well known, but stereotypes are still prevalent so I will try to better explain the French system. The first thing to understand about the French system of proof is that it is not directly linked to the judge. Evidence rules are enshrined in the Civil Code, not in the Code of Civil Procedure. Evidence law ignores the judge. The second thing to understand is that the system of civil procedure disregards evidence. 1. Evidence Law Disregards Judges in France The famous shift, which occurred during the Middle Age in all Continental Europe, between so-called irrational proofs and rational proofs, took specific forms in France. 4  Leubsdorf, The surprising history of the preponderance standard of civil proof (coming from criminal procedure and around the 19th century), Florida Law Review 2016 vol 67 art 2: preponderance of the evidence used in England do not warrant a set aside of the jury decision 1599; this objective standard migrated after into the standard for juries, the beyond reasonable doubt in criminal matter (at the same time there was the Boston Massacre trial 1770, there are distinct standards since there has to be safeguard in criminal procedure).

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The system of proof which used to favour ordeal, oath and duel was transformed, in order to favour testimony and written documents (documentary evidence). Taking an oath is still possible in French civil proceedings and may be used in practice when the case is almost lost, as a last resort. Some expert reports may be seen as a kind of ordeal. For example, handwriting analysis is not considered as totally scientific but may be accepted. The etymology of the word ‘expertise’ – ‘expert report’ – is trial or ordeal. By the way, it has been said that common law juries are a way to establish facts; which is not so different from an ordeal5. The shift between irrational proof and rational proof did not occur to unearth a better truth but because it fitted in the new kind of procedure. Ecclesiastical Courts involved ecclesiastical judges, who were not superior to religious parties. Judges were part of the hierarchical Church and there was a need to standardize the type of proof. It was held that judges should not have too much leeway. So, a scale of proof was invented, which included plain proof, semi proof and even quarter of proof. The level of proof spoke for itself. Judges were not entitled to personal appreciation. The French specificity lies on the importance placed on written documents in civil law. The reason why is still not completely clear in legal history. It might be the consequence of the split in France between written and oral law, between the South – where Roman law had always been applied – and the North – where oral customs were predominant. In order to centralize France, it was necessary, on the one hand, to prohibit duels and, on the other hand, to balance oral proof or testimony and written documents. Whatever the reason, a new legal profession developed around the 15th and 16th century in the South of France: notaries. Before the intervention of notaries, proof through witnesses prevailed over written proof. After the coming into existence of the new legal profession, it became clear that the action of the notary provided sufficient certainty; consequently written documents were favoured and superseded oral proof. Today, a contract, the amount of which exceeds €1500, must still be evidenced in writing (Art.  1369 Civil Code). A party is not entitled to prove it through testimony or on the basis of presumption. The probative force of this evidence is considered to be perfect if it is made through an authentic document or deed, signed in front of a notary. To demonstrate the contrary will be extremely difficult and lengthy. The cogency of the evidence is actually very high. A notary who would be charged with forged document may be sent to jail for ten years. The system rests on the notary’s reliance and organization. Private deeds signed by parties may be admitted but might easily be challenged in court. In such a situation, French judges have no leeway at all. If a document cannot be proven by a written statement, it simply does not exist. 5 

Jacob, La grâce des juges, PUF, 2014.

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Broadly speaking, in France, evidence law works without judges. The decision was made deliberately since judges were considered by the revolutionaries (who were often lawyers) to be simple mouths of the law. The importance of written documents has to be connected to the predominance of written statutes over customs. This method of evidence in civil procedure is a formalised legality, undertaken in order to avoid discretionary and arbitrary decisions. Digital proof has been easily accepted as part of the system of legal proof. The principle of equivalence between written proof and digital proof has been set out in Art.  1366 of the Civil Code. Proof by confession is also considered in civil procedure as perfect. If a party asks his opponent to take an oath in relation to a fact, the proof is considered perfect as well. In all these situations, the judge has nothing to say. If a party cannot provide written documents, a prima facie written document is admissible, for example a letter or nowadays an email. But such prima facie written document is not a perfect proof. It opens the door to other complementary proofs such as testimonies and presumptions, which means here clues or indications. Only in this situation will the judge have some leeway to appreciate the proof. So, the idea of standard of proof might here gain some acceptance but that will be a low one. As a result, evidence law disregards judges in France. Conversely, it seems that the judicial system partially disregards evidence law. 2. The French Judicial System Disregards Evidence Law As mentioned above, this system of legal proof exists for documents the amount of which exceeds €1500. Below €1500 or when establishing facts, the system of free proof prevails (Art.  1356 CC). Actually, litigations where facts have to be proven are frequent. It is the reason why the 2016 statute reversed the principle: free proof is now the principle, while legal proof has become the exception. It is nevertheless only a matter of presentation. What is interesting is obviously the influence of criminal procedure over civil procedure. The intimate or deep-seated conviction notion was conceived during the Revolution against the system of legal proof, especially against confessions, leading to torture, in criminal procedure. The new system was in favour of the jury system, imported from England. Nevertheless, this expression is almost never used in civil procedure and in the Court of cassation case law6 . When French judges have to assess a proof in civil procedure, they need to be convinced. It could be hence said that the standard of proof is conceived according to a subjective approach rather than an objective one, as in Common law. However, judges must provide the grounds for their judgments and cannot avail 6  Except Cass. Civ. 1, 4 Jul. 1978, 77-80015 expression used to assess a danger for a child to live with his mother, close to criminal law.

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themselves of dubious reasons7. They cannot say for example: “It seems that it happened in such way”. Judges cannot stand by the likeliness of the facts only8 . Facts and documents have to be certain to apply judicial syllogism, which is still favoured in the French system. The Court of Cassation does not control the evidence assessment made by lower courts. The Court insists on the lower courts’ sovereign power of assessment, while prohibiting dubious reasons. There has almost never been a Court of cassation landmark case on a question of evidence, except recently on the duty of loyalty when taking evidence, which may be seen as the starting point of an evolution. Although trial judges do face problem of evidence everyday, the subject remains in the background. Evidence law does not officially exist. Until a few years ago, no books at all were even dedicated to evidence law. It is obviously not an autonomous field taught at Law Schools, but mainly taught as part of civil procedure lectures. However, things are changing and there is now an emerging interest in evidence law and as a consequence, in the concept of the standard of proof.

III. The Emerging Concept of Standard of Proof in France There are obviously cases where there is a need to appreciate the level of evidence reached, in particular in tort law. Even the Court of Cassation has to take these situations into account. So, there is de facto a kind of standard of proof. Additionally, there is a trend in favour of the standard of proof concept, which is de lege feranda. 1. The de Facto Standard of Proof Mr Kinsh considers that the French principle is in civil law preferably certainty beyond reasonable doubt to avoid dubious reasons and give res judicata. He does not say that the standard of proof is a deep-seated conviction but a high level of conviction. There are however exceptions when it turns out to be difficult to establish some facts9: the loss of opportunity, which exists in Tort Law, for example, may give way to damages but it is only a matter of probability10 . Nevertheless, the expression “standard of proof” is not used, only the idea is; some kind of uncertainty is admissible in such cases. 7 

Ferrand, Rép. p. civ. Dalloz 2016, Preuve, n 569. e.g Cass., Civ. 2e, 18 June 2002, no  01-03.429; the Court of cassation considers that dubious reasons (e. g.: it seems that there was a contract) is the equivalent of an absence of reason. 9  De code en code, Melanges Wiederkehr, Dalloz, 2009, Entre certitude et vraisemblance, le critère de la preuve en matière civile, p.  455. 10  See Real Estate Law as well. 8  See

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However, the concept does exist today in European Law11, Intellectual Property Law, Competition Law or even Arbitration12 . It has sometimes been used in the Court of Cassation case law, particularly in Competition Law13. In a re11  ECJ, 27 Nov. 2008, aff. C-252/07: Comm. com. électr. 2009, comm. 14; ECJ, 14 Nov. 2013, aff. C-383/12P, JCP 2014, doctr. 364, Caron; Journal de l’arbitrage de l’Université de Versailles. 12  Versailles University Arbitration Journal n°  1, Octobre 2016, étude 8, Study of arbitrators’ discretionary power regarding the burden and standard of proof: an underestimated power, Helfre-Jaboulay. 13  Cass., com., 11 Janv. 2017 N° de pourvoi: 15-17134 Publ. in competition law “1°/ que la preuve d’une entente verticale requiert la démonstration de l’accord de volontés des parties à l’entente, c’est-à-dire l’invitation d’une partie à l’accord à mettre en oeuvre une pratique illici­ te et l’acquiescement de l’autre à cette invitation; qu’en écartant expressément ce standard de preuve après avoir admis que son application était impossible en l’espèce bien que les sociétés Reckitt fabriquaient le Subutex et que la société Schering-Plough bénéficiait d’une exclusivité de distribution du médicament en France ce dont il résulte que l’entente reprochée aux opérateurs était nécessairement verticale, la cour d’appel a violé les articles 101 TFUE et L 420-1 du code de commerce”; Cass. Com. 11 June 2013, N° 12-13961 12-14401 12-14584 12-14595 12-14597 12-14598 12-14624 12-14625 12-14632 12-14648 Publ. “15°/ qu’en n’établissant pas comme cela le lui était demandé, que la société Marionnaud avait été placée dans une situation d’égalité au regard du standard de la preuve et en mesure de produire des documents et pièces de nature à contrer effectivement et réellement les éléments de preuve versés à charge par le Conseil de la concurrence, la cour d’appel a privé sa décision de base légale au regard de l’article 6 §  1 de la Convention; Mais attendu qu’ayant justifié la durée de la procédure par les circonstances de la cause qu’elle a relevées, sans être tenue de suivre les parties dans le détail de leur argumentation, la cour d’appel a, par ces seuls motifs, légalement justifié sa décision; que le moyen ne peut être accueilli”; Cass. Com, 21 Oct. 2014 – n°  13-16.602 used a set of indications “Et attendu, en dernier lieu, qu’ayant déduit d’un faisceau d’indices, qu’elle a souverainement apprécié, que plusieurs éléments datés du 5 novembre 2003 établissaient un échange d’informations sur les prix entre les soumissionnaires avant la date limite de remise des offres et constaté qu’une note, détenue par la société ETPR, faisait notamment état, à un millième près, des prix moyens pondérés effectifs de la société Spie constatés au premier tour de l’appel d’offres et que ces indications, qui ne pouvaient avoir été inspirées des marchés précédents fondés sur des coefficients différents, ne pouvaient s’expliquer que comme étant le résultat d’une concertation, la cour d’appel, qui a fait ressortir une participation nécessairement active de la société Spie dans l’échange d’informations litigieux, a pu retenir que cette société s’était concertée avec d’autres sur les offres de prix déposées et la stratégie à suivre au cours des deux tours de la négociation”; see Prieto, Jcl Droit de la concurrence, fasc. 140 synthese, 2017: “20. – Discussion sur le standard de preuve – L’évolution est ambivalente. Le standard de preuve s’est élevé ces dernières années en matière de restrictions verticales comme le reflète un lourd contentieux. Par contraste, la preuve en matière de restrictions horizontales a été facilitée, tout particulièrement pour les accords secrets. Ceci tient à l’analyse de la nocivité. Les restrictions verticales sont réputées moins nocives pour la concurrence que les restrictions horizontales. La Cour de justice déclare cependant que le “niveau de preuve requis pour établir l’existence d’un accord anticoncurrentiel dans le cadre d’une relation verticale n’est pas, par principe, plus élevé que celui requis dans une relation horizontale“ (CJUE, 10 févr. 2011, aff. C-260/09 P, Activision Blizzard Germany, anc. CD-Contact Data, pt 71: Rec. CJUE 2011, I, p.  419). 21. – Preuve en matière de restrictions verticales – Les hésitations sur le standard de preuve concernent seulement le traitement des actions apparemment unilatérales. En effet, il n’y a pas discussion dès lors qu’il y a un accord exprès ou une exécution de consigne constituant un comportement objectif valant accord implicite”.

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cent case, the Court of Cassation quoted the lawyers who had used such concept in their pleadings. The Court usually tries to steer away from such point in its own reasoning. However, the standard of proof has been particularly at stake in a series of cases concerning a vaccine against Hepatitis B. In a first case, it was held that there was no scientific evidence of a link between the vaccine and multiple sclerosis, only many presumptions or clues. At such, the Court of Appeal considered that the connection was not scientifically established. A commentator wrote that the standard of proof should be lessened in such a situation of uncertainty14. However, later on, another Court of Appeal considered that there was a body of evidence actually sufficient to establish the connection. The case was eventually brought in front of the Court of Cassation, which referred for a preliminary ruling to the ECJ. The ECJ issued a judgment on 21 June 2017 (W. v. Sanofi, C 621/15)15. Mr W. had been vaccinated against Hepatitis B in 1998. In 1999, he started to show various signs, which allowed doctors to establish a diagnosis of multiple sclerosis. He died in 2009. In 2009, Mr W. and his family won the case in a French lower court. This first ruling was however reversed on subsequent appeals, on the grounds that there was no scientific consensus supporting a causal link between the vaccine and multiple sclerosis. The ECJ referred to the concept of standard of proof: “25. – In those circumstances, under the principle of procedural autonomy and subject to the principles of equivalency and effectiveness, it is for the national legal order of each Member State to establish the ways in which evidence is to be elicited, what evidence is to be admissible before the appropriate national court, or the principles governing that court’s assessment of the probative value of the evidence adduced before it and also the level of proof required (see, by analogy, judgments of 15 October 2015, Nike European Operations Netherlands, C‑310/14, EU:C:2015:690, paragraphs 27 and 28, and of 21 January 2016, Eturas and Others, C‑74/14, EU:C:2016:42, paragraphs 30 and 32).”

The advocate General quoted in the judgment refers to the standard of proof as well: “31. – As observed by the Advocate General in point 45 of his Opinion, such a high evidentiary standard, which amounts to excluding any method of proof other than certain proof based on medical research, could make it excessively difficult in many situations or, as in the present case, where it is common ground that medical research neither confirms nor rules out the existence of such a causal link, impossible to establish producer liability, thereby undermining the effectiveness of Article 1 of Directive 85/374 (see, by 14 JCP 2012, 1199 Quézel-Ambrunaz; See Cass.   1re civ., 26 Sept. 2012, n°  11-17.738, FS P+B+I: JurisData n°  2012-021498 “L’on pourrait aussi imaginer que les standards de preuve, en général, soient parfois assouplis, lorsque le juge est confronté à la logique de l’incertain”. 15  D. act., 28 June 2017, obs. Coustet; AJDA 2017. 1709, chron. Bonneville, Broussy, Cassagnabère et Gänser; D. 2017. 1807, note Borghetti; JCP 2017. 908, note Viney; RCA 2017, n°  9, p.  3, chron. Bloch.

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analogy, judgment of 9 November 1983, San Giorgio, 199/82, EU:C:1983:318, paragraph 14)”.

The ECJ concluded (parag. 43): “Certain factual evidence relied on by the applicant constitutes serious, specific and consistent evidence enabling it to conclude that there is a defect in the vaccine and that there is a causal link between that defect and that disease. National courts must, however, ensure that their specific application of those evidentiary rules does not result in the burden of proof introduced by Article 4 being disregarded or the effectiveness of the system of liability introduced by that directive being undermined”.

The level of proof is mentioned but not applied. What counts is not to reverse the burden of proof. The burden of proof lies with the victim. The defect in the product seems to be the most plausible explanation from which the damage ­occurred, with the result that the defect and the causal link may reasonably be considered to be established16 . In this situation, we don’t really need the concept of standard of proof. Plausibility and reasonableness have to be established. Given the evidence in this case and the high burden of proof, it might be potentially easy in the future for the producer to win the case and for the claimants to lose it, even with the ECJ’s ruling17. A French commentator, S. Borghetti, wrote that because of such a case, people felt reluctant to get vaccinated in France18 . May I add, as a counter-argument, that there might be a return of confidence if people see that producers may loose their cases when there is a risk. In other words, the other way round situation implies that there is no risk. It could be hence said that people are from now on protected by courts should a vaccine injure people. At the end of the day, the Court of Cassation applied the ECJ’s ruling without mentioning the standard of proof, saying that the “presumptions” (the clues) were not sufficiently serious, specific and consistent19. The French Court keeps relying on the sovereign power of appreciation of the facts resting in the lower courts. So, standard of proof exists de facto in France, in Arbitration, Competition Law, Intellectual Property Law, Tort Law and Product Liability. These cases have led certain colleagues to the conclusion that we should elaborate a rule on this concept in France.

16  Autonomie procédurale et appréciation des preuves, Commentaire par Laurence IDOT, CONCURRENCE, La Cour précise la jurisprudence T-Mobile sur le niveau de preuve de la participation à des pratiques concertées en laissant une place au droit national, CJUE, 5e ch., 21 janv. 2016, aff. C-74/14, Eturas UAB. 17  JCP G 2017, doct. 1174, n°  6 Bacache. 18  See footnote  14. 19  Cass. Civ. 1re, 18 Oct. 2017, n°  15-20791, JCP 2017, 1220 Viney; JCP 2018, chron. 262 n°  6 Bacache, D. 2018 p.  35 C Quezel-Ambrunaz.

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2. The de Lege Feranda Standard of Proof The Law of Contract and Tort has been reformed by the 10 February 2016 ­Ordinance n°  2016-131 but not much has changed in the field of evidence. Our rules derive from the Civil Code, Domat, Pothier and the Ordinance of Moulins (1566). Our evidence law is rooted in the Ancient Regime. There is nothing on the object of evidence, the bars to the provision of the evidence, and nothing on the standard of proof. The expression “standard of proof” is more and more influential through ­European and International Law (Competition Law, Arbitration, Patent Law). One of the reasons why it is difficult for the Supreme Court to set up a principle of standard of proof in France is the prohibition of dubious reasons in a judgment. However, Messrs Vergès and Kinsch affirm that it is mainly related to the form of the judgment, not to evidence law. So, if there were to be a reform of evidence law, it should include a provision on standard of proof, according to a leading colleague in this field, Mr Vergès20 . Moreover, he made the good point that French law can be misleading regarding the taking of evidence and standard of proof. Lower courts pretend to evaluate the proof from a body of clues; as a matter of fact, the proof is not really established in such a way. It is up to the judge to decide whether he is sufficiently convinced. Vergès suggests the following wording (freely translated in English): “The judge assesses the probative force of the proof presented in front of him according to his intimate conviction. He may consider a fact as being established if he has a conviction close to certainty. He may as well ground his conviction on serious, preponderant and accurate evidence (or serious, specific and consistent, according to the ECJ W. v. Sanofi case). Free appreciation of evidence has no effect when a statute defines the probative force of the evidence of a written document, the amount of which exceeds a value set by decree”21.

The problem is this: do we need a scientific proof or evidence showing a plausible link? It is not simply a matter of risk. From a utilitarian approach, a vaccine is always something advantageous. It is impossible to show a link between a vaccine and multiple sclerosis and it does not take into account the real victims. However, do we need to state the level of proof? We can avoid the standard of proof if there is no doubt in the arguments based on the clues. The form of the judgment is not what matters here; otherwise it would be better to say that the form is always linked to the substance. The level of proof is a matter of appreciation. 20  JCP 2017, doctr. 510, Réforme du droit de la preuve civile – . – Quelle perspective après l’échec de l’ordonnance du 10 février 2016? 21  “Le juge apprécie la force probante des preuves produites devant lui selon son intime conviction. Il peut tenir un fait pour établi, s’il s’est forgé une conviction proche de la certitude. Il peut également fonder sa conviction sur des indices graves, précis et concordants. La liberté d’appréciation des preuves n’a pas d’effet lorsque la loi définit la force probante d’un mode de preuve d’un acte juridique dont la valeur excède un montant fixé par décret.“

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As a result, I’m not convinced by Vergès’ rule. If we use the concept of standard of proof, we use in fact the preponderance of evidence or the balance of probability concept. In the W. v. Sanofi case, there had been a legal relationship between the victim and the manufacturer. It is dangerous to state a principle since it would allow for exceptions. If we retain the principle of reasonable certainty (as in Germany) and if there is a body of clues, facts are proved and there is not need for dubious reasons. If a rule on the level of proof exists, the Court of Cassation will have to check its application and establish a balance of probability, which is a matter of assessment. Now, it is up to the Court of Appeal to solve the case, not the Court of Cassation. So, the danger of this rule, even if it deals with high levels of proof, is to allow for exceptions, such as the balance of probability, and to oblige the Court of Cassation to examine facts. This latter aspect is a question of power in France. Courts of Appeal are the heirs to the Ancient Regime’s parliaments, constituting a specific counter-power to centralized Paris, illustrating the opposition between Jacobins and Girondists. As a matter of fact, this opposition is not historical but an invention of the poet Lamartine in 184722 . Nevertheless, this invention tells us something on the equilibrium of powers in France. The Court of Cassation deals only with law and with law only. The difference between law and facts is not natural, it is a decision. A decision in order to achieve a balance between the lower courts’ power of evidence assessment and the Court of Cassation’s power over law. I’m not convinced that the prohibition of dubious reasons by the Court of Cassation is a pure matter of form. It has to do with drawing a line between law and fact which is nothing but natural. It is a way of saying: you are the one in charge of handling the proof issue, I don’t want to hear any of your doubt in your decision. It does not mean that the Court of Appeal should have no doubts, but that the Court of Cassation does not want to control them. The question is if the Court of Cassation accepts to control the standard of proof, it won’t exercice a pure control of law any longer. Now, the Court of Cassation applies more and more the principle of proportionality, which involves a balance of interest; the 18 November 2016 Statute actually allows the Court of Cassation to adjudicate a case on the merits if it wishes to do so. The Court of Cassation is hence not a pure body dedicated to law any more. The problem is this: which standard will be adopted? It certainly may be the balance of probability, which would take us back to the utilitarian approach and this is not convincing. What is at stake behind the discussion on the standard of proof is the utilitarian approach or not. It seems to me that the expression ‘Standard of proof’ hides the notion of the preponderance of evidence i. e. its utility in the best interest of the society. 22  Martin, Un mythe politico-administratif, Girondins versus Jacobins 24 févr. 2017, Media­part (Internet Website).

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This is however not convincing if there are several facts to be proven and if they amount to 51 % for each fact. The addition of these several 51 % is not much. It is grounded on a conception of a rational and economic agent, here a judge, who does not exist in the real world. In the W. v. Sanofi case, there is no balance ­between the scientific proof and the body of evidence approach and it cannot be said that the 51 % test is plausible. It has been shown on the contrary, among others by Damasio and Nussbaum, that there are no good reasoning without emotion. This is the so-called Law and Emotion School. Evidence assessment certainly needs to be done through a certain number of emotions (anger, disgust, sadness, fear or joy) when facing the means of proof. Obviously, the calculation of utility is possible in Competition Law but is not that easy in Tort Law. I’m opposed to the balance of probability, as I’m opposed to the balance of interest. To apply the principle of proportionality in procedure or in substantive law, we need a higher level of proof since the judge needs to be reasonably convinced by analytical reason and emotion, emotions being confirmed by analysing the evidence. I’m not very much in favour of stating the level of proof as a textual rule. It might be a concept but it could have wrong impacts and unbalance the relation between Courts of Appeal and the Court of Cassation. I’m convinced that the preponderance of probability does not work. Nevertheless, the story approach is not sufficient either. In the Hepatitis B case, there were two stories, it was not a matter of a scientific proof against another scientific proof. The point is, stories imply relationships. The victim talks about the producer; the producer, with his scientific approach, disregards the victim and does not allow room for him to exist. The story approach may be weak if no relationship approach is associated to it. Emotions cannot be stated in the judgment reasonings. At the end of the day, hard issues need to be assessed through legal theory. I’m not in favour of the Kelsenian normativism, which leaves little room for the Court’s assessment and interpretation. Nevertheless, Law and Economics belongs to modern natural law, since it is said that some economic principles should prevail over law. I’m interested in the relationist approach, which integrates emotions as a necessary tool in the judicial method. Jennifer Nedelsky has developed it in in her own way in North America 23, Alexander Somek in German-speaking countries24 and I’m trying to develop it in France25. The gen23  Of Law’s Relations: A Relational theory of Self, Autonomy, and Law, Oxford Univerity Press, 2011. 24  Somek, The Legal Relation: Legal Theory after Legal Positivism, Cambridge University Press, 2017. 25  Théorie relationiste du droit, LGDJ, Paris, 2016; the relationist approach refers back to Savigny in Germany and more recently to Achterberg (Die Rechtsordnung als Rechtsverhält-

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eral idea of Jennifer Nedelsky is to have a three step-test: to take into consideration all relationships at stake in a litigation – to take into account the values at stake – to look at the parties’ degree of autonomy since the goal of law is to give individuals as much autonomy as possible in interdependent situations. Let’s now look at the W. v. Sanofi case according to this test: the legal relationships involve the producer, the victims, the hospital and even the public; the values at stake are safety, health and risk. The system of free proof does not mean that there is nevertheless no equality. In discrimination proceedings, the claimant doesn’t have to establish the facts, since this implies to compare other people faced to the same position. So, it is up to the employer to prove that he treated the claimant without discrimination. The burden of proof must follow the type of relationship and litigation at stake. In certain situations, even the burden of proof does not lie with a person who could easily establish the facts; the judge has to be convinced of the truthfulness of the facts in the relationships between the parties, which involves the analysis of the various clues and emotions. Consider again the vaccine case: the scientific truth was not established but the producer took a risk and was insured (See ECJ 2017 32). Such a limit to the types of admissible evidence would be inconsistent with the objectives pursued by Directive 85/374, seeking to ensure a fair apportionment of the risks inherent in modern technological production between the injured person and the producer and those aiming at protecting consumers’ health and safety26; lastly, the vaccinated victims were in a passive position without autonomy to establish proof. They couldn’t scientifically prove the connection between the product and the illness. Conversely, the producer had an obligation to be careful. The judgment based on the producer’s presumption balances not the probability but the relationships, so that there are no dependent persons any more, or more exactly there are dependent persons who can become autonomous again. The story approach is not sufficient; evidence assessment taking into account the legal relationships at stake seems to me a useful complement. This approach could be applied in Competition Law too. There is a debate between a higher standard of proof concerning vertical infringements where dependent firms are involved and a lesser level of standard of proof when horizontal infringements occur. So, the standard of proof may vary with the level of dependency of the parties who have to establish the facts. However, the second situation implies that some people may be the victims of the infringement, such nisordnung, Duncker et Humblot, Berlin, 1982); Levi (Teoria generale del diritto, Padova, Cedam, 1953) and Cicala (Il rapporto giuridico, 3ème éd. 1940, Milano, 1959) in Italy; Arrelano in Spain (Filosofia de las relaciones juridicas, Rialp, Madrid, 1963); in Portugal to de Carvalho (A teoria geral da relaçao juridica, seu sentido e limites, Coimbra, Centelha, 1981) and de Andrade (Teoria da Relaçao Juridica, Coimbra, 2003); in Russia: Korkounov (Cours de théorie générale du droit, trad. Tchernoff, Paris, Girard et Brière, 1903, 2° éd. 1914) among other. 26  See, to that effect, ECJ, 5th March 2015, Boston Scientific Medizintechnik, C‑503/13 and C‑504/13, EU: C: 2015:148, paragraphs 42, 47.

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as consumers or other firms. As far as these victims are concerned, I do not see why I should use a balance of probability in a utilitarian way: that would lead to discriminate among the parties involved, between dependent parties and less dependent parties. It is always difficult to assess the general good, but I know if people or companies have been injured. Conclusion: I’m in favour of the expression “the level of proof” so that it does not hide the preponderance of evidence (51 % test), a high level of proof as reasonably certain. I’m not in favour of a change in legislation since it would allow for exceptions and may jeopardize the equilibrium between Courts of Appeal and the Court of Cassation. The German complicated situation confirms the idea that it is dangerous to have a principle and exceptions in such a field27. To find out a reasonably certain proof, I would favour the taking of evidence which would consider the legal relationships at stake and the parties’ level of independency. Magne Stranberg has suggested an empathic approach of the standard of proof, which takes the needs and emotions of the parties into account 28 . I would add that the relationist approach I foster is in line with such empathic approach, even if I find this last approach a little bit too subjective, as it would leave too much leeway to judges.

27 

28 

See in this book the chapter on the German situation. See in this book the chapter on the more probable than not standard.

Standard of Proof in Italy Roberto Poli

I. In Italy, neither legal commentators nor the case-law have ever shown that much interest in the criteria for assessing evidence and, consequently, in the standard to be met in order for evidence to be held valid. There are, in fact, only a small number of studies on the “free conviction of the judge”, the principle according to which, in the Italian legal system, the judge assesses the discretionally assessable evidence, namely, evidence whose probative value is not determined by law but, rather, by the judge (free assessment of evidence).1 1  Cf., without the pretention of being complete, and also for other references, Blaiotta, Carlizzi, Libero convincimento, ragionevole dubbio e prova scientifica, in AA.VV., Prova scientifica e processo penale, a cura di Canzio e Lupària, Padova, 2018, 376 et seq.; Ferrua, La prova nel processo penale. Volume I. Struttura e procedimento, Turin, 2017, 183 et seq.; Patti, Prove, in Comm. al c.c. Scialoja, Branca, Galgano, by De Nova, Libro sesto: Tutela dei diritti art. 2697–2739, Bologna, 2015, 212 et seq., also for an interesting overview of foreign stances (in particular in Sweden and Germany); Ubertis, Profili di epistemologia giudiziaria, Milan, 2015, 162 et seq.; Id., La prova penale. Profili giuridici ed epistemologici, Turin, 1995, 87 et seq.; Rivello, La prova scientifica, Milan, 2014, 1 et seq., in particular from the perspective of scientific knowledge; Taruffo, La valutazione delle prove, in AA.VV., La prova civile, Milan, 2012, p.  207 et seq.; Id., La semplice verità. Il giudice e la costruzione dei fatti, Bari, 2009, 160 et seq., 218 et seq.; Id., La prova dei fatti giuridici. Nozioni generali, Milan 1992, 361 et seq.; Comoglio, Le prove civili, Turin, 2010, p.  149 et seq.; Della Monica, Il principio del libero convincimento, in AA.VV., Prova penale e metodo scientifico, Turin, 2009, 159 et seq.; Santoriello, I criteri di valutazione della prova (fra massime d’esperienza, regole di giudizio e standards d’esclusione), there, II, p.  325 et seq.; Cavallone, Forme del procedimento e funzione della prova (ottant’anni dopo Chiovenda), in Riv. dir. proc., 2006, p.  417 et seq., who, after having acknowledged the progressive ‘corruption’ of the principle of free conviction with respect to Chiovenda’s original view, notes, among other things, on pages 427–428, that “trying to impose an order and a regulation for the assessment of evidence, i. e. to regulate the formation of the finding fact in the secrecy of ‘chambers’, and all the more so in the impenetrable ‘inner chambers’ of the single judge, is not only difficult, but probably impossible, if one thinks of a regulation involving express and direct precepts, ­regardless of the source”; however, the forms which “can be regulated by analytical and binding rules are, specifically, the ‘forms of the proceedings’ i. e. the collection of the information that can be used for the assessment, the ways in which the decision must be developed and, most importantly, the jurisdiction of the judge”; on the same issues, with widest views, Id., Riflessioni sulla cultura della prova, in Riv. it. dir. proc. pen., 2008, p.  947 et seq.; Dominioni, La prova penale scientifica, Milan, 2005, 297 et seq., esp. 328 et seq., as to the relationships between the (new) scientific evidence and the free conviction of the judge; Carratta, Prova e convincimento del giudice nel processo civile, in Riv. dir. proc., 2003, p.  27

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It is only over the last twenty years that a wider debate has developed around the standard of proof, with particular reference to and especially about the finding of a causal link. At present, the case-law of the Italian Court of Cassation holds that the standard to be met in criminal proceedings is “beyond any reasonable doubt”, while in civil proceedings the “more probable than not” or the “preponderance of evidence” and the “stronger logical probability” criteria apply.2 The criteria identified and applied during an assessment of causal link – by the case-law, in the absence of specific legal provisions – have been held applicable as basically general criteria for ascertaining the facts during a proceeding.3 In criminal proceedings the criterion of guilt “beyond any reasonable doubt” finally became a rule of judgment ratified by law in 2006: see Art.  533, par.  1, Italian Code of Criminal Procedure.4 For these reasons, in the considerations made below the prevalent issue of reference will be the ascertainment of the causal link.

II. Before examining the aforesaid criteria in more detail, it is advisable to outline, even if briefly, how findings of fact are construed in Italy. Put very briefly, it can be said that a finding of fact concerns the truth of the factual statements in subet seq.; Lombardo, Appunti sulle origini e sulle prospettive del libero convincimento, in Dir. giur., 1992, 17 et seq.; Nobili, Il libero convincimento del giudice, Milan, 1974, passim; Id., Storia d’una illustre formula: il “libero convincimento” negli ultimi trent’anni, in Riv. it. dir. proc. pen., 2003, 71 et seq. As to the relationships between the free conviction of the judge and presumptions of the jurisprudence, see Verde, L’onere della prova nel processo civile, rist. 2013, 135 et seq. 2  See, ex multis, Italian Court of Cassation, dec. no. 23197 of 27 September 2018; Italian Court of Cassation, dec. no.  17084 of 11 luglio 2017; Italian Court of Cassation, dec. no.  47 of 3 January 2017. For a preliminary overview of the problems posed by the ascertainment of the causal link in civil proceedings and for additional references to this subject, see AA. VV., Causazione e giustificazione del danno, Turin, 2016, passim; Napoli, Il nesso causale come elemento costitutivo del fatto illecito, Naples, 2013, passim; Capecchi, Il nesso di causalità. Dalla condicio sine qua non alla responsabilità proporzionale, Padua, 2012, passim; AA.VV., Il nesso di causalità. Profili giuridici e scientifici, by Pucella and De Santis, Turin, 2007, passim. In criminal trials, Caruso, Gli equivoci della dogmatica causale, Turin, 2013, Brusco, Il rapporto di causalità. Prassi e orientamenti, Milan, 2012; Blaiotta, Causalità giuridica, Turin, 2010; Id., La causalità nella responsabilità professionale, Milan, 2004; also for any other appropriate reference. 3  For civil cases see, for example, Court of Cassation dec. no.  19430 of 30 September 2016, esp. the grounds. In jurisprudence see Patti, Prove, cit., especially 228 et seq., 232 et seq.; Id., Prima lezione. La “costruzione” del fatto nel processo, in Rescigno, Patti, La genesi della sentenza, Bologna, 2016, 45–49; Comoglio, Le prove civili, cit. 152 et seq.; Taruffo, cit., 193 et seq., especially 218 et seq. 4  To this subject, see Catalano, Ragionevole dubbio e logica della decisione, Milan, 2016, passim, esp. 43 et seq., also for further references.

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mitted by the parties during the trial: by the prosecution and the defence in criminal proceedings and by the plaintiff and the defendant in civil proceedings. That definition shows how the purpose of evidence is not to directly prove the existence or inexistence of an uncertain fact relevant for the proceedings, but, rather, to indirectly prove the truth or falseness of the claims by which a party assumes or, on the other hand, opposes, its existence.5 However, in order to have a clearer understanding of these statements, certain general premises on which this discussion is based need to be considered: a) the concept of the “truth of a statement” or the “truth of a fact” refers to an absolutely relative concept of the truth: the “procedural truth”, or “judicial truth”; in other words, the truth that can be ascertained by the means and within the limits peculiar to a given judicial finding and which is necessarily something different from the historical and material truth of those same facts6; b) from the perspective of the “fair trial” intended to reach the “right decision”, the proceedings will, in any case and to the extent possible, aim at ascertaining the “truth” of statements and, indirectly, of the relevant facts for the proceeding7; c) all taking account of the fact that: aa) it is not possible to apply the tra5  See, for all, Comoglio, Le prove civili, cit., 152 et seq.; Ferrua, La prova nel processo penale, cit., 87 et seq.; Taruffo, La semplice verità, cit., 32 et seq.; Ubertis, Profili di epistemologia giudiziaria, cit., 12 et seq.; Id., La prova penale., cit., 8 et seq.; Id., La ricerca della verità giudiziale, in AA.VV., La conoscenza del fatto nel processo penale, by Ubertis, Milan, 1992, 9–10. 6  Ferrua, La prova nel processo penale, cit., 16 et seq., 45 et seq.; Patti, Prima lezione. La “costruzione” del fatto nel processo, cit., 33 et seq.; Id., Prove, cit., 227; Taruffo, La semplice verità, cit., 74 et seq., 82 ss; Id., La prova dei fatti giuridici, cit., 1 et seq.; Travaglino, La questione dei nessi di causa, Milanofiori Assago, 2012, 5 et seq.; Ubertis, Profili di epistemologia giudiziaria, cit., 1 et seq.; Id., La prova penale., cit., 3 et seq.; Id., La ricerca della verità giudiziale, cit., 1 et seq., 37–38. 7  Ferrua, La prova nel processo penale, cit., 20 et seq., 45 et seq., also for additional references; Taruffo, La semplice verità, cit., 116 et seq.; Ubertis, Profili di epistemologia giudizia­ ria, cit., 12 et seq.; Id., La prova penale., cit., 10 et seq.; Id., La ricerca della verità giudiziale, cit., 10–11. As regards the issue of the search for truth in the trial, see also Gradi, L’obbligo di verità delle parti, Turin, 2018, 3 et seq.; Tuzet, Filosofia della prova giuridica, Turin, 2016, 67 et seq.; see also the 11 books published in the series known as Epistemologia giudiziaria, by Ubertis, Milan, 1997–2015; Haack, Legalizzare l’epistemologia. Prova, probabilità e causa nel diritto, Milan, 2015, 39 et seq.; AA.VV., Verità e processo penale, by Garofoli and Incampo, Milan, 2012; and also Cavallone, In difesa della “veriphobia” (Considerazioni amichevolmente polemiche su un libro recente di Michele Taruffo), in Riv. dir. proc. 2010, 1 et seq.; Taruffo, Contro la “veriphobia”. Osservazioni sparse in risposta a Bruno Cavallone, ibidem, 995 et seq.; Fornaciari, La ricostruzione del fatto nel processo, Milan, 2005, 38 et seq. ; Cipolla, La prova tra procedimento e processo tributario, Padua, 2005, 61 et seq., with reference to tax proceedings; in the perspective of the Brazilian proceedings, see Zaneti, O problema da verdade no processo civil: modelos de prova e de procedimento probatorio, in Revista de processo, 2004, 334 et seq. Even Carnelutti, La prova civile, rist. Naples, 2016, 62, pointed out: “The fact that in a greater or lesser number of cases this purpose [obtaining knowledge of the controversial facts] fails and that, despite this, the facts resulting from the process used are deemed to be true, or more precisely, are set out in the decision even though they are not true, certainly prevents from considering the (material) truth as the constant result of the evidentiary process and therefore as its essential note, but not at all like the purpose that such process

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ditional Aristotelian definition of the truth, according to which “a statement is true only if and when it corresponds to the facts” in proceedings, given that no one has ever been able to clearly explain in what that “correspondence” between a statement and the facts consists8; bb) the extent of human knowledge is naturally limited9 and not even the world of science is capable of assuring an absolutely “certain” truth10 ; cc) the judge reconstructs past events by assessing the evidence and the means of proof with a gnoseologic, fact-finding function11; that is to say, more detail, that the judge reconstructs past events by aims to achieve and, correlatively, determines its structure”. With regard to the relationships between the scientific method and judicial evidence see Lombardo, La prova giudiziale. Contributo alla teoria del giudizio di fatto nel processo, Milan, 1999, 39 et seq. On epistemology in general see Audi, Epistemologia. Un’introduzione alla teoria della conoscenza, Italian translation, Macerata, 2016. 8 See Gradi, L’obbligo di verità, cit., 5 et seq.; Ferrua, La prova nel processo penale. cit., 45 et seq., esp. 50. 9 See Ferrua, La prova nel processo penale, cit., 45 et seq.; Comoglio, Le prove civili, 17 et seq.; Taruffo, La semplice verità, cit., 74 et seq., 82. 10 See Ferrua, La prova nel processo penale, cit., 32; Lombardo, La scienza e il giudice nella ricostruzione del fatto, in Riv. dir. proc. 2007, 35 et seq.; Stella, Giustizia e modernità. La protezione dell’innocente e la tutela delle vittime, Milan, 2003, 431 et seq. 11  Which relates to that essentially argumentative function of the evidence, understood in its sense of evidentiary reasoning, which is built on not certain but probable assumptions and inferences: Ferrua, La prova nel processo penale, cit., 89 et seq.; Gentili, Il diritto come discorso, Milan, 2013, 549 et seq.; contra, Taruffo, Funzione della prova: la funzione dimostrativa, in Riv. trim. dir. proc. civ., 1997, 533 et seq.; wider positions have been expressed, more recently, in Id., Fatti e prove, in AA.VV., La prova civile, cit., 58 et seq., where the heuristic or cognitive function of evidence opposes the rhetorical function. In this respect, see also Carratta, Il diritto come discorso e la funzione dimostrativa della prova. A proposito del libro di Aurelio Gentili, in Diritto e questioni pubbliche, Palermo, 2014, 169 et seq.; Ubertis, Profili di epistemologia giudiziaria, cit., 7 et seq.; and with essential, but very clear, explanations, see Rossi, Logica ed epistemologia della prova penale, in Metodo e processo. Una riflessione filosofica (by Sagnotti), Perugia, 2005, §  1 et seq. With regard to tax proceedings, and in favor of the demonstrative conception of evidence, see Cipolla, La prova tra procedimento e processo tributario cit., 110 et seq., with the recognition, however, that it is “clear that the proof of juridical facts presents persuasive aspects”, that “evidence does not provide a deductive-causal proof of the unknown fact”, and that it is indisputable “that the proof is argumentation [...] as soon as one considers that also the proof of a factual statement is another statement”. Without being able at this place to take adequately (and motivatedly) a position on one of the most complex questions regarding evidence, it seems that the theory of the “demonstrative function” of the evidence, at least in its technical, rigorous and strong version, cannot be entirely approved, taking into account the structural components, the type of inferential chains adopted by the judge and the nature of the judge’s result. In fact, in doubt it does not seem to be revocable that the judge’s reasoning is composed of premises with a certain degree of probability (as well as not certain ones), unfolds through questioning inferential chains, also so-called extended ones, in which persuasive aspects may be present (and not according to the deductive rules of formal logic), and arrives at a result equally endowed with a certain degree of probability (and never predictable in terms of certainty: it is emphasized that the judge’s argument is not demonstrative, “but plausible, with greater or lesser margins of uncertainty”, Carcaterra, La logica nella scienza giuridica, Turin, 2015, 133–134). This, however, does not mean that the purpose of the evidentiary reasoning must

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pulling from the sources of evidence and the known facts ascertained during the trial, information about the unknown facts relevant for the decision and making logical deductions based on the norms born of experience, including scientific knowledge and/or common sense12; dd) it follows that the logic followed by the judge is essentially inductive, rhetorical-argumentative, or “dialectical-rhetorical”, opinion-based, and not formal-demonstrative13; ee) this logic is the expression of the free conviction of the judge (of “his prudent assessment”, according to Art. 116 of the Italian Code of Civil Procedure14), and it is characterised by a discretional activity which also involves specific choices of value15; ff) from the perspective of a “fair trial” and the “right decision”, the be identified necessarily and exclusively in persuasion, and not also in the search, especially by the judge, for the necessary degree of truth (even if only probable) of a factual statement, in order to be able to (legitimately) use this statement as the basis of one’s decision; and above all it does not imply that the result which the evidentiary reasoning arrives at cannot (and must not) be, under penalty of the illegitimacy of the decision, justified on rigorously rational grounds (both argumentative and not of formal logic ones). Finally, in this regard, see Gradi, L’obbligo di verità, cit., 39 et seq. 12  Taruffo, La valutazione delle prove, cit., 207 et seq., 220 et seq.; Canzio, Prova scientifica, ragionamento probatorio e libero convincimento del giudice nel processo penale, in Dir. pen. e processo, 2003, p.  1193 et seq., esp. 1195: “The reasoning to identify the relevant evidence is based on an inferential structure, and the core of inferences is represented by scientific and statistical-quantitative laws, as well as by norms born of common experience, which form the encyclopedia, or array of empirical knowledge, of the average man, identified by common sense as a tool of knowledge for assessing evidence in a given historical and cultural context”. Regarding the so-called norms born of experience, also in the relations with scientific laws, see Tuzet, Filosofia della prova giuridica, cit., 182 et seq.; Rivello, La prova scientifica, cit., 45 et seq. 13  Ferrua, La prova nel processo penale, cit., 84 et seq.; Ubertis, Profili di epistemologia giudiziaria, cit., 19 et seq., 56 et seq.; Id., La prova penale., cit., 13 et seq.; Id., La ricerca della verità giudiziale, cit., 8 et seq., 12 et seq.; Fornaciari, La ricostruzione del fatto nel processo, cit., 209 et seq.; Cipolla, La prova tra procedimento e processo tributario, cit., 105–107; Lombardo, La prova giudiziale. Contributo alla teoria del giudizio di fatto nel processo, cit., 103 et seq., 411 et seq., 494; in this respect, see also Cavallone, Alessandro Giuliani processualista (ordine isonomico, ordine asimmetrico, principio dispositivo, principio inquisitorio), in Riv. dir. proc. 2012, 107 et seq. More in general, on the types of arguments of the judge, see Atienza, Diritto come argomentazione. Concezioni dell’argomentazione, Naples, 2012. 14  On this, see the interesting considerations of Patti, Prima lezione. La “costruzione” del fatto nel processo, cit., 45 et seq. See also Lombardo, La prova giudiziale, cit., 414 et seq. 15  The judge makes such choices of value, for example: a) when he or she determines the reliability of the sources of evidence, for example, of witnesses (see Lombardo, La prova giudiziale, cit., 433 et seq.); b) when he or she selects the circumstantial evidence considered to be relevant for defining the unknown fact to be proved; c) when he or she determines the seriousness, accuracy, and consistency of the same circumstantial evidence; c) and above all, when he or she selects the norm based on experience (of a scientific nature or born of common sense) considered to be applicable to an actual case; d) and, a fortiori, when he or she determines the “strength” of the norm based on experience (of a scientific nature or born of common sense) considered to be applicable to an actual case. Moreover, each of these choices of value, in turn, can be structured on sub-choices of value, which represent their premises. Indeed, the relation between “fact” and “value”, even from the epistemic perspective, does not reflect the contraposition between “finding in fact” and “finding of legal value” (on these issues, see Gradi,

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judge’s argumentative logic also characterized, as said, by discretional choices of value, it is in any case a logic founded on strict rational bases that have to be explained in the grounds of the decision16 , and not on the judge’s own intuiL’obbligo di verità, cit., 16 et seq., also in note 43, which however in my opinion reduces excessively the significance of the difficulty of identifying shared semantic codes; Ferrua, La prova nel processo penale, cit., 31 et seq., also in footnotes 16, 34 et seq.; Gliozzi, L’opposizione dei giudizi di fatto ai giudizi di valore: critica di un dogma giuspositivista, in Riv. trim. dir. proc. civ., 2014, 857 et seq., esp. 868: “the findings of value are not imperative at all times, they can also be, conversely, findings on reality intended to express or induce stances that deny or confirm the judged reality, without prescribing anything”; Dinacci, Regole di giudizio (Dir. proc. pen.), in Arch. Pen., 2013, §  1; Zagrebelsky, La legge e la sua giustizia, Bologna, 2008, 187, 191; Cipolla, La prova tra procedimento e processo tributario, cit. 51 et seq., 61 et seq., 102–105; Putnam, Fatto/valore: fine di una dicotomia, Rome, 2004; Pizzi, ­Oggettività e relativismo nella ricostruzione del fatto: riflessioni logico-filosofiche, in AA.VV., La conoscenza del fatto nel processo penale, cit., 195 et seq.; in less recent times, Ubertis, Fatto e valore nel sistema probatorio penale, Milan, 1979. Moreover, it is necessary to consider that the principle of the free conviction of the judge and the connected prudent assessment merely involve that, with reference to the so-called discretionally assessable evidence, it is the judge, not the law, who determines the effectiveness of such evidence; but this principle does not imply in any way the impossibility to question, before the Court of Cassation, the way in which the prudent assessment has been exercised (see below under VIII. of this chapter; Dinacci, in this note supra, and under VIII. of this chapter with reference to scientific evidence, also in relation to the causal link, and under IX. of this chapter). 16  Ferrua, La prova nel processo penale, cit., 185 et seq.; Taruffo, La valutazione delle prove, cit., 58 et seq., 79 et seq., 207 et seq., 220 et seq.; più di recente, Id., Prova [dir. proc. civ.], in Diritto online Treccani, 2017, §  7; Fornaciari, La ricostruzione del fatto nel processo, cit., 209 et seq. On the importance of the grounds in this regard, see Canzio, La valutazione della prova scientifica fra verità processuale e ragionevole dubbio, in AA.VV., Scienza e processo penale. Nuove frontiere e vecchi pregiudizi, by C. Conti, Milano, 2011, 61 et seq.: “What is required of the judge is not any reason on the fact, but rather that he has followed the reasoning regulated by specific epistemological rules, starting from the item of proof up to the evidentiary result, according to criteria of inference, such as norms born of experience, statistical laws, scientific laws characterised by a more or less high degree of empirial reliability. Actually, the right of defence includes not only the right to request, gather, and refute evidence, but also the guarantee to have a rational answer, an explanation, the right to reasoning, and the evidentiary connections that the judge has identified and used to ground their ‘free conviction’ and the decision. […] Finally, this lengthy and complex process is completed by the examination on points of law by the Court of Cassation, charged with the task of assessing the logicality of the evidentiary reasoning of the trial judge as to the ascertainment of the fact (Art.  606, par.  1(e) of the Italian Code of Criminal Procedure): this reflects the trial’s aim to ascertain the facts and the truth”. See also Ubertis, Profili di epistemologia giudiziaria, cit., 7 et seq., 12 et seq., 15 et seq.; Id., La prova penale., cit., 8 et seq.; Id., La ricerca della verità giudiziale, cit., 8 et seq., 12 et seq.; more generally, Perelman, Logica giuridica. Nuova retorica, (1976), Milan, 1979, passim. For an examination of the historical phase in which the dialectical method, involving the theory of probable reasoning starting from generally accepted assumptions, witnessed the application of procedures similar to those of the necessary reasoning used in logic, so that “the rhetorical discourse too [could become], in a certain sense, logical and rigorous”, see Giuliani, Il concetto di prova. Contributo alla logica giuridica, Milan, 1961, 26 et seq. (for a summary of the subsequent relations between logic and rhetoric see also Ubertis, Profili di epistemologia giudiziaria, cit., 10–12).

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tions 17; gg) from the same perspective of a “fair trial” and the “right decision”, the ground must also be adequately challengeable in point of law, i. e. before the Court of Cassation18; d) based on these observations, it has to be held that cases in which a number of plausible rational, factual accounts of the same past event(s) are conceivable, none of which can in any event be considered absolutely “certain”19; and in respect of which the “preferability”, or “greater rational credibility” of one of such accounts compared to another depends inevitably, just as the other factors, on the greater or smaller closeness of the “nucleus of knowledge and values” they express to the “nucleus of knowledge and values” (we could say “cultural nucleus”) of who is required to declare the “greater rational credibility”20 . In that situation, the most modern and credited theories of the knowledge in trial proceedings have highlighted how ascertaining the truth of a statement in fact (the incrimination for the prosecution in criminal proceedings and the causing or extinctive fact alleged by a party in civil proceedings) is a question of the linguistic consistency and coherence, syntax and semantics of and between the statements: the initial one, made by one of the parties (claimant, defendant, public prosecutor, accused) at one extremity, the evidentiary ones having an epistemic function in the middle, and the final one, issued by the judge, at the other 17 

Taruffo, Prova [dir. proc. civ.], cit., §  7; Fornaciari, note  16, 211. Canzio, Prova scientifica, ragionamento probatorio e libero convincimento del giudice nel processo penale, cit., pp.  1196–1198, according to whom the fact that the evidentiary result can be, in many cases, the result of inevitable cognizance process grounded, at the same time, on common experience that cannot be regarded as “certain”, necessarily implies, among other things, an assessment of points of law on the evidentiary reasoning that must involve not only the inherent logic consistency of the justifying arguments, the inherent consistency of the grounds, but also the justifying basis of the most important prerequisite of the judicial syllogism, the so-called “external” justification, i. e. “the rationality of the justifying arguments […] regarding the empirical data considered by the trial judge as items of evidence, the inferences formulated on the basis of these, and the criteria supporting the evidentiary results”. See also Id., op. ult. cit., 1195, where it is emphasized that the guarantee of verification, by the Italian Court of Cassation, of the grounds for the decision, also with respect to their logicality, “necessarily relies on an epistemological structure that requires the transparency and the intersubjective communicability of the justifications of the ‘grounds’ and of the ‘logic’ of the finding in fact. And this applies, on the one hand, to guarantee the constitutional principles of legality, equality, just trial, subjection of the judge to the law, and generalised right to challenge the decisions due to breach of law and, on the other hand, as a necessary condition for the correct application of the legal provision in the definition of issues of law”. 19 See Ferrua, La prova nel processo penale, cit., 43–44, 95–96. See also Taruffo, La semplice verità, cit., 80–81; Cipolla, La prova tra procedimento e processo tributario, cit., 80 et seq., 87 et seq. In case-law, see Italian Court of Cassation, dec. no.  25927 of 23 December 2015. 20 Cf. Ferrua, La prova nel processo penale, cit., 45. It is the issue of relativity of truth with respect to the context (cf. Taruffo, La prova dei fatti giuridici, cit., 54), with a duty to take into account that the structure of cultural reference can change depending on the person also within the same, specific spatial and temporal context of reference, such as that which may be represented by an individual state. With reference to tax proceedings see Cipolla, op. cit., 51 et seq., 61 et seq., 66 et seq. 18 Cf.

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extremity. When assessing facts, the comparison made between statements “is of an empirical, epistemic nature: it has to be checked whether the evidence can justify that conclusion on the basis of certain empirical generalizations and notions developed from previous experience”; and exactly on the strength of that connection to the real, extra-linguistic context (the evidence) “the trial can express its presumption of the truth”21. It therefore has to be acknowledged that, apart from the conditioning that result from the legal norms on the methods of the assessment of fact in the strict sense22 , the logic followed by the judge is an essentially inductive, argumentative, dialectic-rhetorical, opinion-based and not formalized logic, although, as stated, (having to be) founded on strict rational bases. The resulting conclusions reached by the judge with regard to the truth of a fact, despite him having carefully reconstructed the premises on which his reasoning is based, can never be considered “certain” according to the traditional Aristotelian system of logic23. Consequently, nowadays when we talk about procedural truth, reference should essentially refer to the structural characteristics of the judge’s reasoning of the decision: the judge’s statement in fact asserts the “truth” of a fact if – and only

21 In Ferrua, La prova nel processo penale, cit., 28 et seq. 45 et seq., esp. 48 and 50, where it is specified that “ascertaining the facts produces a natural significance and that theories on how the world is organized (such as: that fingerprint means that N has been here) serve to work it out”; 84 et seq. See also Taruffo, La semplice verità, cit., 71 et seq., 78 et seq.; Lombardo, La prova giudiziale, cit., 457 et seq.; 464 et seq.; Ubertis, La ricerca della verità giudiziale, cit., 11–12. 22 See Lombardo, Il sindacato di legittimità della Corte di cassazione, Turin, 2015, 131 et seq., and separately, a fortiori, the rules of procedure on forfeitures and, in general, on the limitations on the usability of evidence, which oblige the judge too to “shift from the truth to the procedural truth” (Travaglino, Relazione, in AA.VV., Il rapporto di causalità a dieci anni dalla sentenza “Franzese”. Riflessioni e problematiche nel settore penale e in quello civile, Proceedings of the Academic Conference held on 28 November 2012 between Court Magistrates and the Bar, in Tropea (VV), 2012, 22). For the impact of such provisions, see also Patti, Prima lezione. La “costruzione” del fatto nel processo, cit., 39 et seq.; see Taruffo, La semplice verità, cit., 83 et seq. Cipolla, La prova tra procedimento e processo tributario, cit., 91; in this regard, see also Chiarloni, Riflessioni sui limiti del giudizio di fatto nel processo civile, in Riv. Trim. Dir. Proc. Civ., 1986, 819 et seq., spec. 822 et seq., 827 et seq., also for the role of the assumptions on value that come into play in the determination of the limits of the finding of facts. 23  Especially when one agrees with the argument that “other than maybe in the few odd cases, there are no ‘hard facts’, but only ‘soft facts’, i. e., facts liable to be judged differently depending on context and perspective” (see Lombardo, La scienza e il giudice, cit., 40); see also Pizzi, Ogget­ tività e relativismo, cit., 195 et seq., which also contains a reference to causal relations). More in general, Cipolla, La prova tra procedimento e processo tributario, cit., 61, 66 et seq.

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if – his reasoning is complete24, reliable25 , plausible26 , rationally coherent 27 and consistent 28; in one word: if – and only if – it is rationally “credible”. But this aspect is discussed further later.

III. In order to understand the standard of proof in the criminal proceeding, the celebrated decision no.  30328 handed down by the Full Bench of the Criminal Divisions of the Italian Court of Cassation on July 10, 2002, known as the Franzese decision, has to be taken as starting point. The Full Bench was tasked with resolving the conflicting case-law of the individual divisions of that Court regarding the reconstruction of the causal link between omissive conduct and event, particularly concerning the matter of the medical surgeon’s professional liability: the approach requiring proof that it was highly likely, to a degree “close to certainty”29, i. e., “almost one hundred” percent certain, that a different action taken by the agent would have prevented the event, was set against the guideline followed by the majority, holding that “serious and appreciable probabilities of success” were sufficient proof to prevent the event. In resolving that conflict – and after reiterating that, in order to be punish­ able, human actions or omissions have to be considered a “necessary” condition, 24  And it is complete if: (i) he has adequately examined all the relevant evidence and means of proof, both from an analytical point of view as well as from a holistic, overall point of view (in this respect see Tuzet, Filosofia della prova giuridica, cit., 261 et seq., Della Monica, Il principio del libero convincimento, cit., 195 et seq., with particular regard to the evaluation of evidence in criminal proceedings); (ii) the specific factual situation of the concrete case has been ascertained in all the factual elements as presupposed and described in the applicable covering laws. 25  And it is reliable if the evidence and the means of proof can actually be regarded as reliable and adequate sources of direct and/or indirect knowledge concerning the relevant facts. As regards the assessment of reliability of evidence, see Lombardo, La prova giudiziale, cit., 427 et seq., 433 et seq. 26  And this is plausible if the reasoning is based on correct factual (serious, accurate, and consistent) assumptions, i. e. assumptions that are capable of revealing and connoting the information drawn from them; and if the norms of a scientific nature or based on experience that are applied are subscribed to and considered valid by the relevant general public at a given point in time, relevant and correctly applied with specific reference to the individual, non-­ repeatable actual case; i. e. by taking into account, in a complete and exhaustive way, the evidence and items of proof of the same actual case. 27  And it is rationally coherent if the statements and the prepositions it consists of, do not contradict each other or are otherwise in logical contrast with each other. 28  And it is consistent if, also on the basis of a holistic and not just analytical consideration of the evidence and means of proof, the partial and final conclusions reached are adequately supported by their partial and final premises. 29  On the basis of the arguments expressed in jurisprudence by Stella, Leggi scientifiche e spiegazione causale nel diritto penale, Milan, 1990, passim.; see also Id., Giustizia e modernità, cit., 339 et seq.

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conditio sine qua non, in the chain of prior events that contributed to producing the result and without which the crime would not have been committed – the Full Bench of the Criminal Divisions of the Italian Court of Cassation upheld the following principles: a) A causal link can be found when, on a par with a counterfactual assessment made on the basis of a generalised rule of experience or a scientific law – whether universal or statistical – it is found that, conjecturing that the doctor had taken the action needed to prevent the event hic et nunc, it would not have happened or would have happened much later or been less harmful. b) The existence of the causal link argued in the case for the prosecution cannot be automatically inferred from the probability coefficient resulting from the law of statistics, because the judge must verify its validity in an actual case on the basis of the facts and the available evidence, meaning that, on the outcome of the reasoned examination of the evidence that has also ruled out any contamination by other factors, the conclusion that the doctor’s omissive conduct was a necessary condition of the harmful event will prove justified and procedurally certain to a “large or high degree of rational credibility” or “logical probability”. There is no question that average-to-low probability coefficients, known as frequent by type of event, resulting from the law of statistics (and even more so from empirical common-sense generalisations and/or epidemiological surveys) demand careful and accurate verification in terms of their scientific grounding and specific applicability to the case in point. However, there is nothing to rule out that they too, if corroborated by evidence held valid according to the standard methods of the latest forensic medicine criteriology regarding the definite non-contamination by other factors in an actual case, can be utilized for the judicial recognition of the required conditioning link. Vice-versa, high degrees of statistical probability or interpretative guidance deduced from laws of a universal nature (actually rather rare in the field in question), albeit pointing to a succession between events found with regularity or in a high percentage of cases, still demand that the judge verifies their effective aetiological value, together with the irrelevance to the case in point of other explanations, and therefore verifies their “reliability” in respect to the individual event and on the basis of the available evidence. c) The insufficiency, contradictory nature and uncertainty of the evidenciary findings supporting the causal link, thus, the reasonable doubt, based on the available evidence as to the actual conditioning effect of the doctor’s omissive conduct compared to other factors interacting in the production of the harmful event lead to the case made by the prosecution being thwarted and a judgment of acquittal in accordance with the safeguarding principle of “in dubio pro reo”; d) Since the “necessary” condition of the event takes the form of an objective requisite of the crime in question, the exact same assessment criteria and demonstrative strictness applied to all the con­stituent elements of a crime during criminal proceedings cannot be applied to it. It is in that regard that the Court refers also to the infer-

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ential reasonings imposed with regard to circumstantial evidence under Art. 192, par.  2, of the Italian Code of Criminal Procedure, according to which “the ­existence of a fact cannot be inferred from circumstantial evidence unless it is firm, specific and consistent”30 . In 2002 the Full Bench thus confirmed that the standard of proof that is necessary and sufficient is a high degree of rational credibility or (high degree of) logical probability and made it clear that the existence of “reasonable doubt” as to the elements of the causal link – and, more in general, the factual elements of the crime – lead to an acquittal. The subsequent case-law of the Criminal Divisions of the Italian Court of Cassation has substantively upheld the principles laid down by the Full Bench in 2002, with some specifications31. Following a ruling in 2005, it is clarified 30  Art.  192, par.  2 , of the Italian Code of Criminal Procedure, see, also for additional references to jurisprudence and case-law, Tonini, Conti, Il diritto delle prove penali, Milan, 2014, 79 et seq.; Dinacci, Regole di giudizio, cit., §  6; Catalano, La prova indiziaria, in AA. VV., Prova penale e metodo scientifico, cit., 61 et seq.; Della Monica, Il principio del libero convincimento, cit., 191 et seq.; Zaza, Il ragionevole dubbio nella logica della prova penale, Milan, 2008, 69 et seq.; Ferrajoli, Diritto e ragione. Teoria del garantismo penale, Bari, 1989, 108 et seq., according to whom Art.  192, par.  2, of the Italian Code of Criminal Procedure represents a general prescription valid for all items of evidence. 31  See, for example, Italian Court of Cassation, Criminal Division, dec. no.  32494 of 14 May 2004, which expressly refers to the principles laid down in the Franzese decision and adds that the trial court “having confirmed the existence of the facts on the basis of findings whose logical consistency is insufficient (and, therefore, do not meet the requirement for ­­rational certainty) and having drawn consequences therefrom that are unfavourable to the accused, the Court has infringed the principle of ‘beyond any reasonable doubt’, which represents the limit of the free conviction of the judge set by the legal system to avoid that the outcome of a trial is subject to discretionary, subjective judgments verging on arbitrary. The foundations of that principle are in direct and essential correlation to the rule requiring the rationality of decisions protected by the provision of the Constitution ratifying the obligation to state the reasoning underlying all judicial rulings (art. 111, par.  6 , of the Italian Constitution) and by the legal provision requiring the judge to assess the evidence taking account of the grounds of the results obtained and the criteria applied (Art. 192, par.  1, of the Italian Code of Criminal Procedure). […] the principle of ‘beyond any reasonable doubt’ permeates the entire procedural system and is most prominently expressed in the fundamental guarantees pertaining to criminal trials, the most noteworthy of which include the presumption of innocence, the prosecution’s burden of proof, that enunciated by the ‘in dubio pro reo’ rule, enacted under Art. 530, par.  2 and 3, of the Italian Code of Criminal Procedure, and, lastly, that which sums them all up, the compulsory statement of the grounds and rational justification for the decision pursuant to art. 111, par.  6 , of the Italian Constitution and Art. 192, par.  1, of the Italian Code of Criminal Procedure”. Italian Court of Cassation, Criminal Division, dec. no.  25678 of 8 June 2004, according to which, on the subject of appeals seeking the reopening of a case, “a case may be reopened even when the outcome of the proceedings may lead to reasonable doubt as to the guilt of the accused due to the insufficiency, uncertainty or contradictory nature of the prosecution’s evidence” (more recent, to the same effect, see Italian Court of Cassation, Criminal Division, dec. no.  18818 of 9 March 2013). For a concise but telling excursus of the case-law preceding the Franzese decision, dating back to the 1970s and 1980s, specifically concerning the matter of “reasonable doubt” (also when the standard of proof required to grant a preventive remedy is set against that needed to hand down a con­

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once and for all that the bard rule applies to all the constituent elements of a crime32 . In 2006, as previously stated, the legislator amended Art.  533 of the Italian Code of Criminal Procedure, making the bard rule, generally applied in the case-law, become an express provision of that Code33. From 2006 onwards the bard rule has undergone some refinement through additional, subsequent specifications made in the case-law of the Italian Court of Cassation. After a number of statements remarking on the “merely descriptive rather than substantive” function of the legislative amendment – meaning that it would not produce a different and more stringent criterion for the assessment of evidence compared to that previously applied – 34 the Italian Court of Cassation, in a case that was given a lot of media coverage, made it clear that the law “requires that a conviction has to be delivered when the evidence obtained leaves room only for remote – albeit theoretically pleadable and advanceable as possible in rerum natura – eventualities whose actual realization in an actual case is not corroborated in the slightest procedural findings, since they are not in the natural order of things or ­rational human behaviour”35.

It was then specified from that perspective that “the ‘beyond any reasonable doubt’ rule has definitively derailed the approach taken in case-law that when there were a number of possible reconstructions of the facts, the trial viction), see Della Torre, Il lungo cammino della giurisprudenza italiana sull’ “beyond any reasonable doubt”, in Dir. pen. contemporaneo, 20 June 2014, 1 et seq., esp. 3 et seq., also containing references to jurisprudence on the same subject. 32  Full Bench of the Criminal Division of the Italian Court of Cassation, dec. no.  33748 of 12 July 2005. 33  Regarding that legislative action, see Ferrua, La prova nel processo penale, cit., 87 et seq., esp. 92 et seq.; Catalano, Ragionevole dubbio e logica della decisione, cit., passim, esp. 43 et seq., also for additional references. Ubertis, Profili di epistemologia giudiziaria, cit., 174 et seq.; Dinacci, Regole di giudizio, cit., §  8.4.1. Zaza, Il ragionevole dubbio nella logica della prova penale, cit., passim. Regarding the standard in question (bard) from the perspective of the assessment of evidence, see Tuzet, Filosofia della prova giuridica, cit., 285 et seq. From a concrete perspective, with reference to industrial accidents, see D’Errico, Dalla Casa, Oltre il ragionevole dubbio. Prove scientifiche per il tracciamento delle responsabilità negli incidenti e disastri industriali, Pisa, 2012; with regard to the causal link, even before the legislative intervention of 2006, see AA.VV., I saperi del giudice. La causalità e il ragionevole dubbio, by Stella, Milan, 2004. 34  Italian Court of Cassation, Criminal Division, dec. no.  19575 of 21 April 2006; Italian Court of Cassation, Criminal Division, dec. no.  12799 of 6 February 2007; with the additional effect that the introduction of the bard rule has not itself alone changed the nature of a decision of the Italian Court of Cassation, which continues to be a judgment on legitimacy, in which a fresh examination of the evidence is precluded: Italian Court of Cassation, Criminal Division, dec. no.  7380 of 22 February 2007; subsequently and more explicitly put, see Italian Court of Cassation, Criminal Division, dec. no.  21396 of 15 April 2010; Italian Court of Cassation, Criminal Division, dec. no.  11531 of 14 February 2014. For further references in such regard, see Della Torre, Il lungo cammino della giurisprudenza italiana, cit., 10–11. 35  Italian Court of Cassation, Criminal Division, dec. no.  31456 of 21 May 2008; Italian Court of Cassation, Criminal Division, dec. no.  23813 of 8 May 2009, which refers to the “high degree of rational credibility” criterion.

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court judge was allowed to adhere to the one that led to a conviction just because he considered it more likely than the others. That will no longer be permitted because, in order to arrive at a conviction, the judge must not only hold any different reconstruction of the facts that leads to the acquittal of the accused to be unlikely, but must also believe that the doubt as to that alternative hypothesis is not reasonable (in other words, it must be a hypothesis that is not plausible or in any case without any corroboration). Even though a miscarriage of justice can never be completely ruled out, this new rule serves to show that the legal system – although it accepts that someone who is guilty may be acquitted – does not, however, tolerate the conviction of an innocent person. There is no question that this principle does not overcome the one of the free conviction of the judge – which is set against the archaic system of legal proof, is but means that this principle finds a limit that is established under the legal rules on the assessment of evidence and does not identify itself with an unchallengeable subjectivism that could stray into arbitrariness”36 .

From the same perspective, the case-law of the Italian Court of Cassation has further made it clear that a guilty judgment that is beyond any reasonable doubt may well be supported by a body of evidence of a circumstantial nature, meaning by that evidence that is all indirect, provided that it can be as meaningful as demonstrative evidence, and what validates circumstantial evidence is not its source or what it proves, but its content and degree of persuasiveness37. In 2010, while upholding the principles and the approaches examined above38 , the Court explained that “the mere difference in the assessment of the same ­evidence by two trial courts does not per se amount to the unsurmountable reasonable doubt calling for an acquittal”, since “every finding in fact has to be supported by the arguments that explain it and differing arguments are not also necessarily equivalent and equally capable of being fully convincing. It is only the argument that, notwithstanding the filter of the rules of logics and the application of norms based on common experience, is still substantially equivalent to another and thus proves capable of providing a probable alternative account, from both factual and logical perspectives, indeed not abstract but firmly anchored to the specific facts of the individual proceeding, in other words capable of lodging doubts that cannot be overcome otherwise than by resorting to part of a recognition that at least is ‘unjustifiable’, the one that calls for the application of the rule of beyond any reasonable doubt”39. 36 

Italian Court of Cassation, Criminal Division, dec. no.  48320 of 17 December 2009. Court of Cassation, Criminal Division, dec. no.  47250 of 9 November 2011; ­Italian Court of Cassation, Criminal Division, dec. no.  25834 of 12 June 2013. 38  For references in this regard, see Della Torre, Il lungo cammino della giurisprudenza italiana, cit., 12. 39  Italian Court of Cassation, Criminal Division, dec. no.  30576 of 30 July 2010, which adds, in the grounds for the decision, that “the possible different assessment of the same evidence by the two trial courts is in the physiology of a trial: what is important is that the second decision takes full and proper account of all the arguments made by the first judge and then explains the reasons why – whether because those arguments are wrong or the evidence considered is wanting or due to its examination from a logical perspective – the opposite judgment is reached. That is why the statement of the grounds of the second judgment has to be particularly exhaustive and accurate”. 37 Italian

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Furthermore, it is clarified with reference to the bard rule that “even when obtained legitimately, pre-trial statements rendered without cross-examination cannot – according to the principles upheld by EU case-law, pursuant to art. 6 of the ECHR – form the sole or the fundamental basis of a declaration of criminal liability”40 .

From 2011 onwards the bard rule is read in apparently new ways, but the substance does not change at all, with it being clearly laid down in the case-law of the Italian Court of Cassation that “as rightly pointed out in authoritative doctrine too, the enactment of the rule of ‘beyond any reasonable doubt’ calls for the judge to use a ‘dialectic method’ of verifying the case for the prosecution according to the rule of ‘doubt’: essentially, the judge’s verification of the prosecution’s case has to be carried out in such way as to avert the possible existence of internal doubts (contradictions or its inability to explain) or external ones (the existence of an alternative hypothesis that is rational and plausible from a practical point of view)41.”

The impact of the bard rule on reversals of acquittals in the first degree, pronounced in appeal, also has to be noted. According to the most recent case-law of the Italian Criminal Court of Cassation “a decision issued on appeal lodged of the public prosecution service that, reversing an acquittal, finds the accused guilty of the outcome of summary proceedings wherein the evidence consisting in witness statements considered material is assessed differently without examining the people who rendered those statements, is flawed by the lack of proper justi­fication under Art.  606, par.  1(e), of the Italian Code of Criminal Procedure, due to its failure to adhere to the ‘beyond any reasonable doubt’ rule of judgment contemplated in Art.  533, par.  1, of the Italian Code of Criminal Procedure” 42 . 40  Full Bench of the Criminal Divisions of the Italian Court of Cassation dec. no.  27918 of 25 November 2010, in the grounds of which it is specified that “the criterion for judgment established under the traditional provision is well integrated into the system of the other criteria for judgment found in the provisions of national law. It may, for example, be referred to a systematic interpretation of the Constitutional principle of cross-examination during the taking of evidence and the rule of judgment ratified in Art. 533, par.  1, of the Italian Code of Criminal Procedure and summed up in the ‘beyond any reasonable doubt’ formula, to deduce that, in the case in point, the evidence consisting only in statements rendered without the possibility of cross-examination and without any corroboration is of little heuristic value, amounts to an ontologically less reliable source and is therefore not qualified to form the basis of procedural certainty of the guilt of the accused“. 41  Italian Court of Cassation, Criminal Division, dec. no.  35107 of 31 May 2011; followed by Italian Court of Cassation, Criminal Division, dec. no.  41110 of 11 November 2011; Italian Court of Cassation, Criminal Division, dec. no.  1190 of 26 April 2012; Italian Court of Cassation, Criminal Division, dec. no.  23882 of 18 April 2013. The authoritative jurisprudence to which the cited passage refers is Iacoviello, Lo standard probatorio dell’al di là di ogni ragionevole dubbio e il suo controllo in cassazione, in Italian Criminal Court of Cassation, 2006, 3869 et seq., esp. 3876; see also Id., La Cassazione penale. Fatto, diritto e motivazione, Milan, 2013, 437–438. 42  Full Bench of the Criminal Divisions of the Italian Court of Cassation dec. no.  18620 of 14 April 2017. For references to the earlier case-law, see Della Torre, Il lungo cammino della giurisprudenza italiana, cit., 16–19.

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Lastly, also quite recently, the case-law of the Italian Court of Cassation has clearly stated that the bard rule “thus demands (well beyond the stereotypical confirmation of the principle of the free conviction of the judge) that the proceedings are conducted in an epistemologically correct fashion, the arguments for the chosen evaluations of the evidence are grounded, a rational justification of the decision is provided and that conclusive high logical probability standards are met, it having to be recognised that the right to evidence, as an expres­ sion of the right of defence, comprises in its scope the parties’ right to a legal, thorough and rational assessment of the evidence”43.

In light of this excursus of the case-law of the Criminal Division of the Italian Court of ­Cassation, it can be said, in a nutshell, that in criminal cases the standard of proof in the strict sense is represented by the high degree of rational credibility (or high logical probability) of the judge’s reconstruction of the facts, while, although often considered a standard of proof, the bard rule fundamentally assumes the role of a “general principle” or “rule of judgment” of guilt44, informing the various aspects of the judgment itself and inter alia requiring, for present purposes: a) that a judgment “beyond any reasonable doubt” covers every part of the d ­ ecision on guilt; b) that, accordingly, any different and alternative reconstruction of the facts that would lead to an acquittal is also ruled out by the judge “beyond any reasonable doubt”; c) that in the drafting of decisions “beyond any reasonable doubt” the judge conducts epistemologically correct proceedings, makes ground­ed arguments for the chosen evaluations of the evidence, provides a rational justification of the decision and meets high logical probability standards45.

IV. The matter seems less straightforward with regard to the case-law of the Italian Civil Court of Cassation. Following a sporadic reference to the principles upheld in the Franzese decision, in which the finding of the causal link evoked a

43  Full Bench of the Criminal Divisions of the Italian Court of Cassation dec. no.  18620 of 14 April 2017; Italian Court of Cassation, Criminal Division, dec. no.  23813 of 9 June 2009. 44 See Ferrua, La prova nel processo penale, cit., 87 et seq., esp. 96 et seq.; Catalano, Ragionevole dubbio e logica della decisione, cit., passim, esp. 133 et seq. About the distinction between “rules of assessment” and “rules of judgment”, see Dinacci, Regole di giudizio, cit., §  4. In this respect, see also Ferrer Beltrán, La valutazione razionale della prova (2007), translation into Italian, 2012, Milan, 151, footnote  128. 45  Regarding other aspects of a judgment of guilt impacted by the bard rule, see Della Torre, Il lungo cammino della giurisprudenza italiana, cit., 15, footnote  89; Ferrua, La prova nel processo penale, cit., 87 et seq.; Catalano, Ragionevole dubbio e logica della decisione, cit., passim, esp. 43 et seq.

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“high degree of rational credibility or logical probability”46 , first an individual Criminal Division in 2007 and then the Full Bench of the Italian Court of Cassation in 2008 upheld a principle that can now be said to be undisputed and well-established: in civil law too, the general principles that regulate the causality of facts/events are those delineated in Artt. 40 and 41 of the Italian Criminal Code – according to which an event is to be considered caused by another if – everything else remaining unchanged – the one would not have happened without the other (known as the condicio sine qua non theory) – and the “regularity of causation” theory, in the absence of other legal provisions on the subject of causal link and supplementing those rules of a logical nature and consistent with norms based on experience. The substantial difference between criminal and civil proceedings is the rule of evidence, in that in the former the “beyond any reasonable doubt” rule applies, while in the latter it is the “preponderance of evidence” or “more probable than not” rule that is followed, in view of the difference in the considerations at stake in a criminal trial between the prosecution and the defence and the equivalence of those at stake in a civil case between the two litigants 47. 46 

Italian Court of Cassation, dec. no.  4 400 of 4 March 2004. Full Bench of the Italian Court of Cassation, dec. nos.  576–584 of 11 January 2008. The Full Bench, in the above-mentioned decisions, is based, even textually, on the studies by Taruffo, La prova dei fatti giuridici, cit., 272 et seq., Stella, Giustizia e modernità, cit., passim. Prior to this, see, Italian Court of Cassation, dec. no.  21619 of 16 October 2007 (see also Italian Court of Cassation, dec. no.  9238 of 18 April 2007, according to which “the criterion of the certainty of the effects of an action can – thus – be substituted by that of the probability of those effects and the action’s ability to produce them”). The principle that while in criminal cases the “beyond any reasonable doubt” rule applies, in civil cases it is the “more probable than not” rule that applies, as stated in the text, is now undisputed and well established: see, ex multis, Italian Court of Cassation, dec. no. 23197, of September 27, 2018; Italian Court of Cassation, dec. no. 4024, of February 20, 2018; Italian Court of Cassation, dec. no. 26824, of 14 November 2017; Italian Court of Cassation, dec. no. 25113, of 26 October 2017; Italian Court of Cassation, dec. no.  25119 of 24 October 2017; Italian Court of Cassation, dec. no.  25112 of 24 October 2017; Italian Court of Cassation, dec. no.  17084 of 11 July 2017; Italian Court of Cassation, dec. no.  47 of 3 January 2017; Italian Court of Cassation, dec. no.  27449 of 29 December 2016; Italian Court of Cassation, dec. dated 19 October 2015; Italian Court of Cassation, dec. no.  3010 of 11 February 2014; Italian Court of Cassation, dec. no.  21245 of 29 November 2012; Italian Court of Cassation, dec. no.  15991 of 21 July 2011; Italian Court of Cassation, dec. no.  10285 of 5 May 2009; Italian Court of Cassation, dec. no.  975 of 16 January 2009. Prior to the Franzese decision, the Italian Court of Cassation had referred to various criteria: a) the “reliable and substantial chances of success” (Italian Court of Cassation, dec. no.  1286 of 6 February 1998, regarding liability due to the professional negligence of the defence counsel, where it is stated that to establish the causal link between the professional’s conduct and the event, the criterion of certainty of the conduct’s effects can be replaced with the criterion of the likelihood of such effects and of the conduct’s suitability to produce them; more recently, the Italian Court of Cassation, has referred to this criterion in dec. no.  22026 of 22 November 2004); b) the “non-marginal, unneglectable chance of a positive outcome of selection procedures” (Italian Court of Cassation, dec. no.  11522 of 19 November 1997, with additional references in the section describing the grounds, regarding the case of loss of chances and the likelihood of success of an applicant excluded by a selection procedure for the 47 

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However, when trying to define that standard of proof in more detail, one encounters a large number of somewhat obscure criteria that tend to make the matter rather confusing. Nor should it even be remembered in this regard how important it is to dispose of an evidentiary rule “that is not a standard that le­ gitimizes any kind of arbitrary judgment, but a firmly established legal principle”48 , in other words: strict, clear, determinate in its structural and functional elements, applicable in a uniform way and verifiable during appeal proceedings. As previously mentioned, that is not the impression gained from an examination of the criteria to be found in the case-law of the civil courts. It is, for example, affirmed that in a civil case the judge may consider a fact proven also on the basis of the “mere rational credibility” of an event being the result of a given action49. Or that “ordinary” causality under civil law tends on the side of “relative” (or “variable”) probability and is characterised by attaining a lower degree of probability than in criminal cases, according to semantics that, especially in the case of medical expert’s reports, can be expressed in a number of ways (“serious and appreciable possibility”, “reasonable likelihood”), but which in the end do follow the logic of “more probable than not”50 . Furthermore, a causal promotion as officer); c) the “moral certainty” (Italian Court of Cassation, dec. no.  5264 of 5 June 1996, regarding professional liability due to failure to file an appeal before the tax commission; Italian Court of Cassation, dec. no.  4044 of 28 April 1994, regarding attorneys’ professional liability; more recently, the issue of “moral certainty” was examined by the Italian Court of Cassation, in dec. no.  12354 of 27 May 2009, still in cases of attorneys’ professional liability. However, it is also stated in this decision that “judges have found that the appellants had failed to provide any element capable of causing one to conclude, with reasonable probability, that the claim, if raised, would have been accepted”; conversely, for the same cases, dec. no.  9238 issued by the Court of Cassation, on 18 April 2007, excluded the criterion of moral certainty to apply the criterion grounded on the likelihood of the effects of the conduct that is required, but not held; the issue of “moral certainty” was also examined by the Italian Court of Cassation, in dec. no.  16846 of 11 August 2005); d) the “reasonable certainty of the existence of an unneglectable favourable probability” (Italian Court of Cassation, dec. no.  4725 of 22 April 1993, regarding the loss of chances of being promoted; the issue of “reasonable certainty” is also examined by the Italian Court of Cassation, in dec. no.  2222 of 5 April 1984, regarding a case of failure to challenge the decision issued by the court of first instance); e) “rationally justifiable moral certainty” (Italian Court of Cassation, dec. no.  10 of 9 January 1973). It is also worth mentioning dec. no.  4970 issued by the Italian Court of Cassation, on 4 April 2001, according to which the new-born who sustained very serious brain injuries due to the inadequate assistance given by health workers at the time of birthgiving is entitled to compensation for the moral damage consisting in damage to his health, when their total and absolute inability to perceive pain does not emerge with absolute certainty, mainly on the basis of forensic investigations. 48  Travaglino, La questione dei nessi di causa, cit., 88. 49  Italian Court of Cassation dec. no.  11755 of 19 May 2006. 50  Italian Court of Cassation dec. no.  21619 of 16 October 2007, which adds, instead, that “the causality from lost chances, proven tout court in terms of the mere possibility of achieving a different result of treatment, to be understood, rightly, not as the failure to achieve a merely possible result, but rather as the sacrifice of the possibility to achieve it, with such expectation (of the patient’s recovery) being understood as ‘good’, as a present, autonomous and different right to the right to health. Almost certainty (in other words, a high degree of ration-

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link may be recognised also on the basis of a serious and reasonable criterion of “scientific probability”, which has to be “qualified” by additional elements capable of translating the abstract conclusions reached in probabilistic terms into legal certainties; thus, “a causal link may be held to exist not just when the damage can be considered an inevitable consequence of the action, but also when that consequence is ‘highly likely and probable’ and not just merely abstractly possible”51. And the “preponderance of evidence” rule applies in civil cases too, so, on the basis of that rule it can be considered ascertained “that if the doctors’ diagnosis had been correct (i. e., that they had identified the viral lung disease), it is more probable that the patient would have survived and less probable that she would have died”52 . The concept of “probabilistic certainty” inferable from the predominant criterion of the logical evidence has be discussed too53. al credibility), relative probability and possibility are, thus, in conclusion, the three conceptual categories of safeguards nowadays in place in investigations into causal link in the various branches of the legal system”. In reality, as regards the so-called loss of chances, the most recent case-law stances require the proof, even presumptive, of “high probabilities, close to certainty” of obtaining the pursued and desired result (see Italian Court of Cassation’s dec. no.  11906 of 12 May 2017; Italian Court of Cassation’s dec. no.  9571 of 13 April 2017, which also contain the reference to “certainty or high probability”; Italian Court of Cassation’s dec. no.  19604 of 30 September 2016). On the causation deriving from loss of chances, see Pucella, La causalità incerta, Turin, 2007, 81 et seq. Another part of the above-mentioned ruling in dec. no.  21619/07 of the Italian Court of Cassation that is also worth noting is where it states that the guiding principle on the subject of causal link could be formulated “in terms of whoever committed the tort being answerable for the consequences that ‘normally’ ensue from his action, unless there is an intervening new fact/event in respect of which he is not required or able to act (known as the regularity of causation theory and the novus actus interveniens)”. “Relative probability” is also discussed in Italian Court of Cassation dec. no.  15911 of 21 July 2011, n.  15991. 51  Italian Court of Cassation dec. no.  23059 of 30 October 2009. See also Italian Court of Cassation dec. no.  13082 of 5 June 2007, which, referring to analogous precedents, reiterates the principle that “when recourse to the precepts of a medical condition and forensic medicine cannot provide a degree of absolute certainty of the causal link between a personal injury and a surgical operation, the recurrence of that link cannot be ruled out on the basis of the mere finding of margins of relativity in view of a serious and reasonable criterion of scientific probability” (to the same effect, previously, also Italian Court of Cassation dec. no.  4400 of 4 March 2004). On other occasions, consistently with the more recent case-law (see infra, in the text), when recalling the criterion of a “significant, high degree of probability”, reference was made to the “qualified probability” tout court, without the scientific attribution, that is still and always to be verified by means of additional elements capable of translating the expert witness’s conclusions in probabilistic terms into legal certainty: Italian Court of Cassation dec. no.  5704 of 7 March 2017. 52  Italian Court of Cassation dec. no.  16123 of 8 July 2010. See also Italian Court of Cassation dec. no.  3847 of 7 April 2011, according to which “sometimes [when] an action or an omission is per se effectively capable of determining the event, the failure to verify a fact theoretically able to rule out a causal link between the action and the event cannot be pleaded, despite that fact being statistically ‘more probable than not’, by whoever should have carried out that verification and failed to do so”. 53  Italian Court of Cassation dec. no.  3010 of 11 February 2014, stating that “an event is to

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On other occasions and also more recently, the Court explains, more precisely, that in civil cases the “probabilistic certainty” standard cannot be anchored only to the quantitative-statistical probability of the frequencies of categories of events (known as quantitative or Pascalian probability), which may also be lacking or irrelevant, but should be verified by establishing a connection between the degree to which such probability is founded and the elements corroborating it (and, at the same time, in the exclusion of other possible alternatives) that are available in connection with the case in point (known as logical or Baconian probability) 54. Those standards nevertheless appear unclear and generic and do not make it possible to answer the question of interest herein: when and on the basis of what elements can I consider a fact proven in a civil case and thus the material causal link too? In order to answer that question it is worth firstly spending a few words on clarifying how the case-law of the Italian Court of Cassation construes the concepts of frequentist or Pascalian probability and logical or Baconian probability.

V. A distinction is usually made between quantitative, frequentist, statistical or Pascalian probability and logical or Baconian probability on the basis of studies and concepts that, as it is widely known, were devised in philosophy and then applied in court proceedings55. The so called Pascalian and Baconian arguments be considered caused by certain action taken when its occurrence as a result of that action is more probable than not the opposite”. 54  Italian Court of Cassation, dec. no.  25119 of 24 October 2017; Italian Court of Cassation dec. no.  47 of 3 January 2017; Italian Court of Cassation dec. no.  27449 of 29 December 2016; starting with Full Bench of the Italian Court of Cassation dec. nos.  576–584 of 11 January 2008. For the sake of completeness it should be remembered that sometimes the degree of probability considered sufficient or insufficient to affirm the existence of a link has been measured in a percentage: see, for example, Italian Court of Cassation dec. no.  21245 of 29 November 2012, in the grounds of the decision where it is stated that “the counterfactual assessment of the aetiological incidence of the medical staff’s conduct on the death of the patient did not give more than a 10 % possibility of saving his life, meaning that, even wanting to assume an immediate and correct diagnosis of the disease he was suffering from, there was no appreciable degree of the probability of his survival in terms such as to permit holding the hospital liable for his death”. 55  On the concept of probability, and on its use in the trial, see Garbolino, Probabilità e logica della prova, Milan, 2014, passim, focusing in particular on the so-called theorem of Bayes; Ferrer Beltrán, La valutazione razionale della prova, cit., 89 et seq., especially with reference to the inductive probability in the form in which Cohen presents it; previously, see Lombardo, La prova giudiziale, cit., 62 et seq.; Taruffo, La prova dei fatti giuridici, cit., 166 et seq.; Besso, Probabilità e prova: considerazioni sulla struttura del giudizio di fatto, in Riv. trim. dir. proc. civ., 1991, 1119 et seq.; Cohen, Introduzione alla filosofia dell’induzione e della probabilità (1989), translation into Italian, Milan, 1998, passim.

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in logic are rather large in number and extremely complex56 . Making some necessary simplifications, it can be said that the former are based on the laws of statistics “which show a simple statistical regularity of a frequentist type between the occurrence of a type ‘A’ event and a type ‘B’ event, confirming that the occurrence of a certain event is accompanied by the occurrence of another event only in a certain percentage of cases (e. g., ‘Nine out of ten A are followed by B’)”57.

Accordingly, the statistical probability regards empirical analysis and expresses the frequency with which the event occurs during the observation: if n represents the number of experiments and m the number of times the event occurs, the probability-frequency is given by the ratio between the number of times the event occurred and the number of experiments m/n. As it has been found in exact terms, applying statistical, frequentist laws is of very little use, if not considered together with the items of proof, in an investigation into the existence of a causal link in an individual concrete case, moreover not a future case but a past one. Indeed, since those laws confirm that certain categories of events follow one another in a given proportion, i. e., at a certain rate of frequency, they can serve to describe the frequencies related to mass phenomena, that is to say, what the frequency related to an event in a long series of events will be, but cannot tell anything about an individual event: a law of probabilities does not rule out any individual events conflicting with it. To conclude on this point, “only in very approximate terms is it possible to talk about the probabilities of a single event from a frequentist perspective; it does, however, have to be acknowledged that holding a single event to be the cause predicted by the law of statistics is only possible by making a leap of logic and having a degree of faith proportionate to the probability implied by that law”58 .

Despite a partial similarity in their names and the fact that their common intent is to determine a causal link between two facts, the logical or Baconian rule of probability is quite different from the Pascalian argument, (at least) to the extent that the former is construed in a trial context59. In its common accepted mean56  For a clear but necessarily concise account of those arguments, see Ferrer Beltrán, La valutazione razionale della prova, cit., 90 et seq.; Besso, Probabilità e prova, cit., passim. 57  Lombardo, La scienza e il giudice, cit., 55, which goes on to specify that those laws on statistics/probabilities constitute the explanans of what Hempel called the “inductive-statistical explanation” (Hempel, Filosofia delle scienze naturali (1966), Italian translation 1968, Bologna, 93 et seq.). He makes it clear in that case that contrary to the deductive-nomological explanation of cause, the statements serving as explanans do not deductively imply the explanandum, but simply suggest it to be more or less probable. 58  Lombardo, La scienza e il giudice, cit., 56. In this respect, see also Ferrer Beltrán, op. cit., 95 et seq. 59  From a more general perspective, there are also those who dispute that the Baconian rule can be considered really independent from the Pascalian argument (for references, see Besso, op. cit., p.  1125, footnote  21).

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ing and as used during court proceedings, the logical or Baconian rule is, in fact, based on the relationship between a factual hypothesis and the so called extent of the corroboration it receives from the available evidence in an actual case. More specifically, logical probability, which is in the realm of epistemic probability, is the probability that a statement is or is not true ac­cording to logical reasoning based on the evidence available in the actual case: according to the formula p(k/e) = r, the probability p is equal to the extent of the corroboration r that hypothesis k receives from the available evidence e60 . Logical probability can be construed as the “rational credibility” of the truth or falseness of a statement in fact (affirmed first by the party and then by the judge too) on the basis of the specific evidence available in an actual case. Accordingly, if that evidence changes, that logical probability changes too. Moreover, if one takes into account that the judge reaches his or her conviction that a certain fact X, to be proved in the trial, is true, through the inferential reasoning that considers the elements of knowledge offered by the fact Y or, more plausibly, by the facts Y, J, and K proved or otherwise certain in the trial, it is possible to understand that the degree or measure of logical probability depends on the strength of the rule of association of the facts Y, J, K with respect to X applied by the judge to the inferential reasoning in point. And the strength of the said rule depends both on the firmness, accuracy, and consistency of the evidence and of the elements of proof (Y, J and K), and on the intrinsic strength of the generalisation adopted (considered in theory), and on the presence of the so-called relevant variables, i. e., circumstances of the actual case that may, as the case may be, strengthen or, on the contrary, weaken, reduce to a significant extent, and even eliminate the strength of the generalisation itself (without pre­ judice to the fact that, as already pointed out, the strength of the generalisation be measured in accurate and absolute terms – and even less in numerical terms – because it depends on the “cultural background of reference” of who applies it). This does not substantially change in those cases in which, to explain the judge’s reasoning, the so-called “Toulmin model” is adopted61. From that (necessarily) simplified viewpoint, in which the confrontation enters into the trial, the fundamental distinction between Pascalian probability and Baconian probability thus lies in that: the first, which should be mainly, if not exclusively, of an objective nature, determines the relation between facts on the basis of a mathematical calculation based on two statistics, while the second, with reference to which a certain subjective component appears to be not eliminable, determines that relation on the basis on an analytical, rational examination of the available evidence in the actual case62 . 60 

Cf., also for other references, Lombardo, La prova giudiziale, cit., 62 et seq. Cf., also for other references, Taruffo, Prova [dir. proc. civ.], cit., §  7; Id., La valutazione delle prove, cit., 220 et seq. 62  Besides, in these two different meanings the term “probability” has always been under61 

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Taking now into account that, according to case-law, the judge is required to ascertain the existence of the causal link based on so-called “logical probability”, the considerations made up to now lead to some, preliminary conclusions, which substantially reflect those reached in the Franzese decision: a) although – as we shall see – the existence of even very high statistical frequency between events can justify some logical passages in the complex reasoning on the existence of the causal link, it can never be, alone, a ground for the assessment of the existence of the said link, as the judge must ascertain its effective aetiological value in the actual case and the irrelevance, still in the actual case, of different explanations, making sure to assess its “reliability” with reference to the individual event and the available evidence; b) the degree of logical probability of the causal link in an actual case cannot be expressed in terms of percentages or, anyway in numerical terms, unless this is done for merely descriptive and illustrative purposes, or in any case in a non-technical, improper way; c) the statistical-probabilistic laws cannot exclude the existence of other events that are in contrast with them, which means that, when the available evidence contains adequate elements of confirmation, the judge can conclude that the causal link even when the relation between the alleged facts theoretically occurs with medium-low statistical f­requencies; d) as a matter of fact, it is necessary to avoid confusing the theo­retical probability of occurrence of an event (which may be medium-low) and its occurrence in the actual case (not excluded by the medium-low theoretical probability), with the theoretical probability of occurrence of an event (which may be medium-low) and the degree of strength of the inference that led to the statement of the existence of the causal link in an actual case (which may be very high) 63. If these considerations are acceptable, it appears that the two questions that must be posed in connection with the evidence of the facts and of the causal link are, first of all, the following: α) do the case records contain evidence and items of proof based on which it can be stated, with reference to the actual, specific case (unique and non-repeatable) and through rational inferences, that the factevent A was caused by the fact-cause B? β) which is the degree of logical probability necessary and sufficient to state that the causal link exists? That is to say: stood with reference to the trial: see Giuliani, Il concetto di prova, cit., 14, which stresses the difference between probability as “relative frequency of an event in a long series of events”, and probability as “degree of confirmation of a hypothesis in relation to certain proofs.” To this subject, in topical terms, see Ferrer Beltrán, La valutazione razionale della prova, cit., 95 et seq., also for the relations between statistical frequencies, generalizations, and individualized evidence, on individual facts (between likelihood of events and likelihood of propositions), 107 et seq., 121 et seq. 63  In these terms, see, very clearly, Italian Court of Cassation, dec. no.  25119 of 24 October 2017; Italian Court of Cassation’s decision no.  15991 of 21 July 2011; Italian Court of Cassation, dec. no.  7997 of 18 April 2005. See also Court of Justice of the European Union, 2nd Division, judgment issued on 21 June 2017 in the C-621/15 case.

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which is the necessary and sufficient degree of corroboration (strength) the inference (or, more correctly, as we shall see, the inferences) must have to ground the legitimate conclusion that the causal link does exist?

VI. In order to answer to the latter question, which is the really relevant one for the purposes hereof, the first consideration to be made is that the way the issue is framed (which reflects the necessarily short and concise indications given by case-law in the form of principles) appears to be too simplistic; and claiming to be able to answer this question simply by evoking the “more probable than not” standard appears to be even more simplistic. And this, for two sets of reasons: first of all, because the investigations necessary to answer the final, summary question on the existence of the causal like are very numerous, heterogeneous ed extremely complex; and second, because even within each of these individual, specific investigations, the question and the answer cannot be posed in such direct and simplified terms, in that an intricate “network” of inferences (these too, very different and complex) often come into play in the judge’s reasoning. A more analytical investigation will also clarify the role of the scientific laws in the reasoning intended for the ascertainment of the causal link, and their relation with the norms based on experience which equally contribute to this reasoning; moreover, it will also clarify the relations between the scientific law used as reference and the scientific evidence otherwise used for the purposes of ascertaining the causal link. Wanting to simplify an example could be represented by the cases for compensation for the damage caused by cigarette smoking, where the problems examined here emerge very clearly: in such cases, in order to answer the question about the existence of the causal link, it is necessary to ascertain, for example: a) the exact nature and the specific characteristics of the pathology allegedly caused by cigarette smoking, this being an issue that, in turn, involves a series of sub-points which require multiple sub-investigations64; b) the existence of any genetic mutations that may associate the pathology to cigarette smoking65; c) the relation between cigarette smoking and pathology from the epidemiologic viewpoint66; d) the existence of alternative causal factors, which means that the investigation must ascertain whether or not: aa) the injured party is exposed to toxic substances for personal, environmental, or occupational reasons, which 64  See Court of Appeal of Milan, dec. no.  1432 of 13 April 2016, unpublished; Court of Appeal of Rome, dec. no.  1015 of 7 March 2005, n.  1015, in Danno e resp., 2005, 645 et seq. 65  Court of Appeal of Rome, dec. no.  1015 of 7 March 2005, cit. 66  Court of Appeal of Milan, dec. no.  1432 of 13 April 2016, unpublished; Court of Appeal of Rome, dec. no.  1015 of 7 March 2005, cit.

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may have affected the onset and/or development of the pathology67; bb) organic or hereditary factors of the injured party which may have equally impacted on the onset and/or development of the pathology68 . And given that, in these cases, claimants claim the failure to provide information on the damage caused by cigarette smoking, it is also necessary to ascertain: e) whether or not the smoker was otherwise aware of such damage and of the difficulties in quitting smoking – so that their informed and unconditioned choice to smoke broke the causal link – and therefore, briefly, whether or not there was generalised awareness on the damage caused by smoking and on the difficulties in quitting smoking in the period during which the injured party began smoking69; f) if there was no such awareness, whether or not the smoker, promptly informed, would have actually changed their behaviour.70 Each of these rather numerous and heterogeneous sub-aspects draws on a complex network of different and independent inferential reasonings, which are mostly inductive and abductive in nature71, but also deductive72 . These reasonings are affected, obviously, to different extents in percentage terms, depending on the subject matter to be investigated, by sets of generalisations born of experience, common sense, unofficial statistics, scientific knowledge, statistical laws and, if possible (but, in general, as said, this takes place exceptionally) on universal laws of reference73. And sometimes, several norms based on experience and several scientific laws apply, in different and non-repeatable ways, within an 67  Court of Appeal of Milan, dec. no.  1432 of 13 April 2016, unpublished; Court of Appeal of Rome, dec. no.  1015 of 7 March 2005, cit. 68  Court of Appeal of Milan, dec. no.  1432 of 13 April 2016, unpublished; Court of Appeal of Rome, dec. no.  1015 of 7 March 2005, cit. 69  Cf. Court of Appeal of Rome, dec. no.  3041 of 10 May 2017; Court of Appeal of Rome, dec. no.  3877 of 17 June 2016; Court of Appeal of Milan, dec. no.  1432 of 13 April 2016, unpublished. 70  On the peculiarities of the s.c. psychic causality, see Cingari, La causalità psichica in ambito monosoggettivo, in AA.VV., La prova dei fatti psichici, ed. by De Francesco, Piemontese and Venafro, Turin, 2010, 243 et seq., where also other references can be found. 71  On abdutive reasoning, see Ferrua, La prova nel processo penale, cit., 84 et seq. In this regard, see Pizzi, Diritto, abduzione e prova, Milan, 2009. 72  This aspect has also been recently thoroughly analysed by Fornaciari, La ricostruzione del fatto nel processo, cit., 261 et seq., but of course, it is necessary to agree on the concepts of induction and deduction : this aspect is made clear by Carcaterra, La logica nella scienza giuridica, cit., 35. In this respect, see also Lombardo, La prova giudiziale, cit., 417 et seq., which stresses the importance of the so-called evidentiary syllogism for the purposes of formulating the finding in fact, reserving to the induction an heuristic function, for the formulation of hypotheses. 73  Cf. Pastore, Giudizio, prova, ragion pratica, Milan, 1996, 190: “the judge’s reasoning draws on a complex network of deductive, inductive, and abductive processes that, as forms of production of sense, apply variedly and are variedly connected and affected.” See also Tuzet, Filosofia della prova giuridica, cit., 137, which, as regards the reasoning to obtain evidence, talks about a twine or mixture of inferences; Taruffo, Sui confini. Scritti sulla giustizia civile, Bologna, 2002, 327–328. As regards the plurality and complexity of the inferences that characterise the judge’s reasoning, see also Lombardo, La prova giudiziale, cit., 433 et seq., 457 et seq.

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individual, specific sub-investigation74. As we have already stressed, all this also implies, on the one hand, important discretional choices of value75 , and on the other hand, uncertain conclusions merely corroborated by a certain degree of probability 76 . In such sub-investigations, the scientific laws of reference (which are mostly, as repeatedly said, of a statistical nature) and, more generally, the generalisations based on scientific knowledge, have, within the inferential reasoning, the same function as that of the norms based on experience77. Indeed, it can be stated that scientific laws or, otherwise, scientific generalisations are but norms based on experience, defined: i) by the type of knowledge adopted (scientific, not of the average man); ii) by the person/s who establishes/sh them (more or less authoritative expert in the art, not an average man or common sense); iii) by the type of procedure or method used for gathering the data on which the same scientific laws are based78; iv) by the scientific community (within which such laws can be more or less credited)79. To conclude, scientific laws contribute to structure the 74  Cf., for example, Court of Appeal of Rome’s dec. no.  1015 of 7 March 2005, cit., with reference to the ascertainment of the primary or metastatic nature of the cancer that had affected the injured party. See also the important recent dec. no.  16502 issued by the Italian Court of Cassation, on 5 July 2017, in the section describing the grounds. As to the need of the judge in many cases to determine the norms based on experience to be used ad hoc, for the uniqueness of the case considered, see Carcaterra, La logica nella scienza giuridica, cit., 116– 117. 75  See, for example, dec. no.  17084 of the Italian Court of Cassation of 11 July 2017, with reference to the ascertainment, taking into account the time of production of the preparation, of the objective awareness, at the highest scientific levels, of the possible transmission of viruses through infected blood, and therefore of the awareness, by the Ministry of Health, of the risks of transmission of viral hepatitis through the transfusion of blood or blood-derivatives; Italian Court of Cassation, dec. no. 25849 of 31 October 2017; Italian Court of Cassation, dec. no.  9251 of 11 April 2017 ; Italian Court of Cassation dec. no. 243 of 10 January 2017, the last two in Foro.it, 2017, I, 3120 et seq., all three regarding the ascertainment of the fact that the mother would have exercised the right to interrupt pregnancy had she been informed of the foetal anomaly (ascertainment resulting from inferences gatherable from the items of proof, such as the medical advice specifically sought to know the state of health of the baby-to-beborn, the precarious psychic-physical conditions of the mother-to-be or her previous thoughts expressing a propensity to abortion, with the doctor being required to provide contrary evidence, i. e. evidence that the woman would not have aborted for any personal reason whatsoever). Besides, a long time ago Taruffo stressed in La motivazione della sentenza civile, Padua, 1975, 212, that the judge’s reasoning is permeated by elements “that can be defined, from time to time, according to one or more logical forms, or according to almost logic, or purely topical, evaluative, or rhetorical considerations.” 76  Cf., for example, Italian Court of Cassation, dec. no.  28656 of 30 November 2017; Italian Court of Cassation, dec. no.  6275 of 20 April 2012; Italian Court of Cassation, dec. no.  14759 of 26 June 2007; Court of Appeal of L’Aquila, 24 June 2011, in the grounds, in databank Pluris. 77 Cf. Lombardo, La prova giudiziale, cit., 420 et seq. 78  Assuming that the scientific method exists (see Ferrua, La prova nel processo penale, cit., 33, with references to this subject). 79  In this regard, see Tuzet, Filosofia della prova giuridica, cit., 183–84; Rivello, La prova scientifica, cit., 53 et seq.

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inferential reasoning of the judge: from the qualitative viewpoint, to the same extent as the norms based on experience (unless the former are considered, in general, more reliable80); from the quantitative viewpoint, depending on the number of sub-aspects to be investigated in which it is necessary, or even only appropriate, to resort to them81. Already in this regard, it is just worth pointing out that it clearly emerges that the “more probable than not” standard (or the “preponderance of evidence” or “prevalent” or “relative” logical probability” standard) is inadequate, just as the criterion of the “possibility”, with reference to the causation deriving from the loss of chances82 – to indicate and describe the judge’s reasoning, and in particular the criteria through which the judge forms his or her (“credible”) r­ational conviction in relation to the sub-investigations submitted to his or her attention. However, once that all the numerous, problematic and heterogeneous sub-­ aspects in an actual case have been investigated, it is possible to proceed with the final, overall, summary assessment on the existence of the causal link. The judge ascertains whether, and to what extent, the value of knowledge provided by the assessments of the sub-aspects subject to investigation – considered both individually (analytically and in detail) and as a whole (holistically) 83 – is ca­ pable of grounding the final and summary assessment on the existence of the causal link84.

80  In these terms, for example, Taruffo, La semplice verità, cit., 209 et seq. See also Rivello, op. loc. ultt. citt., 53 et seq. 81  Cf., for example, the recent decision of the Italian Court of Cassation, no.  25119 of 24 October 2017; the decision issued by the ECJ (2nd Division) on 21 June 2017 in the C-621/15 case; Italian Court of Cassation, dec. no. 6543 of 14 May 2017 on the ascertainment of exposition to asbestos; Italian Court of Cassation, dec. no.  15991 of 21 July 2011; Italian Court of Cassation, dec. no.  7997 of 18 April 2005. In the case law on the merits, for a case involving the responsibility for damages to a member of the military for exposition to depleted uranium, see Court of Appeal of Rome, dec. no. 3214 of 20 May 2016, available online, where in the grounds of the decision one can find the extensive and analitic indication of the forensic criteria which enable to connect the examined clinical picture to the cause of the service (in the military). In commentaries, see Ubertis, La ricerca della verità giudiziale, cit., 26–27. 82  Italian Court of Cassation, dec. no.  21619 of 16 October 2007; more recently, see Italian Court of Cassation, dec. no.  25102 of 24 October 2017; but see also the above-mentioned decisions issued by the Italian Court of Cassation, on 12 May 2017 (no. 11906), which contain, more correctly, the reference to the evidence, even presumptive, of “high probabilities, close to certainty” of obtaining the pursued and desired result; of on 13 April 2017 (no. 9571) which contains the reference to “certainty or high probability.” 83  Italian Court of Cassation, dec. no.  12002 of 16 May 2017; dec. no.  10973 of 5 May 2017. In commentaries, see Tuzet, Filosofia della prova giuridica, cit., 261 et seq. 84  With reference to the example indicated herein, it is also easy to counter-pose an assessment grounded on statistical probability and an assessment based on logical probability, examined by the case-law on points of law. Actually, there are different types of assessment: a) according to one of these types of assessment, in principle, the existence of the causal link cannot be declared if the hypothesis to be ascertained does not fall within the scope of those

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VII. Finally, let’s now analyse the most complex and important aspect, namely, that of the determination of the degree, i. e., of the extent of the strength of the reasoning based on inferences, necessary and sufficient to legitimately state that the causal link does exist. The analysis must regard both the sub-aspects investigated and the final and summary assessment of the existence of the causal link. In particular, it is necessary to answer the following questions: a) does the degree of rational credibility (logical probability, confirmation) required have to be high, or may even be medium (excluding that a low degree of rational credibility is sufficient) 85?; b) once the said degree is defined, is this measureable and, consequently, can it be somehow, objectively controlled? As regards the investigation of the sub-aspects mentioned above, it is necessary to rely on the theories of the factual assessment and on all the connected problems of the identification of the free conviction and prudent assessment of the judge86 . In any case, a specific regulatory provision applies in this respect scientific laws of reference that confirm very high frequencies (equal or close to certainty) between the facts considered; b) a different type of assessment is that which, regardless of the principle referred to above, to ascertain the existence of the causal link, is grounded exclusively on the statistical-epidemiological law, according to which it is possible to state that in an actual case, the exposure to cigarette smoking has more than doubled the risk of developing the claimant’s pathology; c) another different type of assessment considers statistical-epidemiological data as one of the arguments of the reasoning (statistical data that, in many cases, could even lack completely), which is essentially based, for the purpose of establishing whether or not the causal link exists in an actual case, on the evidence and on the items of proof emerged in the same actual case, namely, on the knowledge about the sub-aspects indicated above (in this respect, see the extensive comments by Stella, Giustizia e modernità, cit., 308 et seq.). For the sake of completeness, of course also the judgement has to be considered which affirms the existence of the link when, despite the finding that medical research does not establish or exclude the existence of a link between the conduct and the event (and even when the health care authorities tend to exclude this link), certain facts ascertained during the proceeding constitute material, precise and consistent circumstantial evidence which allow to determine the existence of the aforementioned link (for this hypothesis see CJEU, Section II, decision 21 June 2017 , case C-621/15, in Danno e Resp., 2017, 668 et seq., in the case of damage due to an allegedly defective vaccine). 85  In light of all the considerations made so far, it is hardly worth emphasizing that the concepts of “low” and “high degree of rational credibility” (such as that of “high probability, close to certainty”, where probability is correctly understood as the so-called “logic”) have nothing to do with the concepts of “low” and “high quantitative, statistical probabilities of (groups) of events.” On the other hand, from the perspective under examination, it should be sufficient to talk about “requirements of rational credibility” of the judge’s reasoning, because if the ground is “rationally credible” in connection with predetermined, specific purposes, credibility is not required to be “high”, whereas talking about “low rational credibility” can even appear to be nonsense. However, to avoid the risk that a lower threshold may be sufficient to define the evidence, it is preferable to continue applying the criterion proposed here in terms of “high degree of rational credibility.” 86  See back in this chapter under II.

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and in my opinion, it is not possible to disregard it: Art. 2729 of the Italian Civil Code provides clear elements to state that, in the presumptive reasoning, the inference used must lead to a conclusion that can be stated with a high degree of rational credibility (it seems that this is the only possible meaning of the required characteristics of firmness, accuracy, and consistency of the circumstantial evidence provided for thereby; a similar meaning emerges from Art. 192 of the Italian Code of Criminal Procedure, on which we will enlarge later herein) 87. The more detailed debate undertaken in the following regarding the formulation of the final judgment on the existence of the link also applies for the single sub-aspects subject to investigation; in order to avoid repetitions I therefore refer to the considerations immediately set out below. As of now, it can be accepted that in order to held the proof to be achieved, a “clear plausibility of the fact” is necessary (even though it is preferable to talk, for the reasons indicated herein, of “high degree of rational credibility of the judge’s reasoning”): not only does the mere prevalence of plausibility make the rule on the burden of proof inapplicable; but instead, it also excludes the relevance of the principle of conviction, because the judge must decide even if, in reality, he or she does not have any element forming his or her conviction other than “mere” prevalence. In the cases in which no clear plausibility is identified (but we would talk about “high degree of rational credibility”), the application of the rule on the burden of proof is the preferred option, in that it expresses a legislative will to allocate risk in society88 . Well, after having ascertained, with a high degree of rational credibility, the elements for assessment, it is necessary to express the final judgment on the existence of the causal link: when, and according to which criteria, can the judge conclude that the existence of the causal link, on the basis of the

87  For convenience, this is the text of Art. 2729 of the Italian Civil Code: “Presumptions which are not established by law are left to the prudence of the judge, who shall only admit them when they are material, precise and consistent”. On the presumptions see for all Patti, Prove, cit., 624 et seq.; Id, Prima lezione. La “costruzione” del fatto nel processo, cit., 43 et seq.; Gamba, Presunzioni [dir. proc. civ.], in Diritto on line Treccani, 2016; Tuzet, Filosofia della prova giuridica, cit., 153 et seq.; Taruffo, Le prove per induzione, in AA.VV., La prova civile, by Taruffo, cit., 1101 et seq., who however attributes the “strength” of the requirement of “materiality”, and generally also the evaluation of plurality of non-consistent inferences, to the “prevalent probability” scheme; Comoglio, Le prove civili, cit., 645 et seq.; Lombardo, La prova giudiziale, cit., 509 et seq., esp. 511, for the statement that the presumptive inference must “confer a high degree of confirmation of the assumption on the fact”; Chiarloni, Riflessioni sui limiti del giudizio di fatto nel processo civile, cit., 849 et seq., 852 et seq.; in jurisprudence, see Italian Court of Cassation, 5 February 2014, no. 2632. In this regard, I recall that according to Carcaterra, La logica nella scienza giuridica, cit., 104, the definition and the scheme of inference foreseen in Art. 2927 of the Italian Civil Code can be generalized in order to define all evidence; and that according to Ferrajoli, Diritto e ragione, cit., Art. 192, par. 2 of the Italian Code of Criminal Procedure represents a general provision valid for all evidence. 88  Prütting, Gegenwartsprobleme der Beweislast, Munich, 1983, 72 et seq. (mentioned by Patti, Prove, cit., 241–242).

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items of proof available in the actual case? As known, it is really very difficult to answer this question. The two extremes are represented, on the one hand, by the intime convinction of the judge, and on the other hand, by the (high) purely objective credibility/probability of the causal relation found in the decision, which, according to some, can even be expressed in numbers. In the middle, there are many possibilities: for example, it has been stated that “the moral conviction which can be, justified by reasons, and which is ‘objective’, that there are laws of reference, based on which the conditionalistic assessment can be grounded, is necessary and sufficient. […] The rational controllability through the ground is the only form of objectivity we can get by drawing on the sciences of the spirit”89.

For others, the degree of conviction of an individual must “be based on probability in a subjective sense, which has a logical nature (‘logical probability’) and consists in the rational degree of conviction of an individual (‘degree of corroboration’) about a factual account gathered from all the empirical elements capable of supporting the assumption”90 .

With reference to these possible reconstructions (and with reference, in particular, to the former), which nonetheless, appear to reduce to a minimum extent the subjective component of the assessment (clearly, inevitable in the structure of such reconstructions), it has been noted that “the basis of the justification that the judge should provide continues to remain indeterminate: the doubt is that the judge may not think of any really ‘objective’ justification and that the misunderstanding with this word is even, almost ‘used’ in such a way that a subjective option of the judge becomes subjective on condition that he or she explains to be really convinced of the existence of a law of reference, even if the source on which he or she has drawn is unclear”91.

After having emphasized the need to resort to scientific laws, where possible, to ground probabilistic inference, and use the norms based on experience with great prudence and precaution, a proposal has been made to adopt, as a standard for the assessment of evidence, the “stronger logical probability” criterion “as a criterion the judge must adopt to determine whether or not a statement in fact is sufficiently confirmed by evidence, and therefore to establish whether or not this statement can be considered as ‘true’ for the purposes of the decision.” It is also said that this criterion consists in the combination of two rules; the rule of the “more probable than not” and the rule of “relative probability”. The first 89 

Pagliaro, Causalità (rapporto di), Enc. dir., Annali, vol. I, Milan, 2007, 164. Lombardo, La scienza e il giudice, cit., 58. Regarding the statement, according to which: “also the findings of facts, although objectified by means of the evidence, are the result of a reasoning and present, as a consequence, a subjective component that cannot be eliminated”, see also Cipolla, La prova tra procedimento e processo tributario, cit., 101, as well as 105–107. 91  Taruffo, La prova del nesso causale, cit., 117. 90 

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rule implies that, with respect to any statement, it is necessary to consider the possibility that it can be true or false, i. e., that in reaction to the same fact there are a positive assumption and a complementary negative assumption. Brief: “the positive assumption must be chosen as a rational alternative when it is logically more probable than the negative assumption, i. e., when it is ‘strongly’ confirmed by the available evidence; conversely, it must be rejected when the corroboration coming from available evidence is only ‘weak’, i. e., such that the assumption can be considered as scarcely credible”92 .

If the available evidence confirms more statements on the same fact, the rule of “relative prevalence” comes into play, according to which “the judge must consider as ‘true’ the statement that enjoys the relatively highest degree of corroboration on the basis of available evidence”93. With reference to the assessment on the existence of the causal link, the “two rules mentioned above must therefore be applied both to the statements re­garding the fact indicated as cause and the fact indicated as effect, and to the statement of the rule of reference supporting the statement of the existence of the causal link that connects the two facts”,

taking into account that “a chain of inferences has an overall strength that cannot exceed the strength of its weakest ring.”94 However, it seems that even these guidelines and also, more generally (in my opinion) the “more probable than not” standard and the “relative probability” (and also the “prevalent probability”) rule are inappropriate and ineffective tools to establish when, actually, a statement in fact is sufficiently confirmed by evidence to be considered as true, or prevalently true compared to another statement95 , and however, such guidelines and rules too reflect an excessively simpli-

92  Taruffo, La prova del nesso causale, cit., 129, which continues by saying that “obviously, it is then necessary to prefer the negative assumption if there is strong contrary evidence, i. e., if there are many items of proof confirming the statement that denies the existence of the fact.” 93  Taruffo, La prova del nesso causale, cit., 130. For a case of application of this rule, see Italian Court of Cassation’s decision no.  10285 of 5 May 2009. 94  Taruffo, La prova del nesso causale, cit., 130, which concludes by noting that “the consequence is that if one of the “rings” of the chain of causation does not pass the test of stronger logical probability, then the entire chain of causation is unsupported by evidence.” 95  In this respect, see Ferrer Beltrán, La valutazione razionale della prova, cit., 144 et seq. The issue is correctly framed in commentaries by Fornaciari, La ricostruzione del fatto nel

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fied structure of the more complex reasoning of the judge96 . Moreover, it appears that such tools are unable to fulfil the obligation to provide grounds for the decision, which requires the indication of the specific reasons of the judge’s conviction in light of the rational assessment of the evidence available in an actual case97. Actually, depending on the various interpretations and viewpoints, the “more probable than not” criterion appears to be – at least in view of how it is applied in Italy98: excessively simplistic and synthetic99, unnecessary100 , tautological101,

processo, cit., 217 et seq., who, for the purpose of identifying the necessary standard of proof, suggests the criterion according to which it would be necessary to require the highest level of probability that can be reached in relation to the specific actual fact to be proved and the specific parties involved in an actual case (cited book, 220). However, this criterion too, which is surely a step forward, remains partly insufficiently determined, and partly difficult to express in rationally controllable terms: who establishes which is “the highest level of probability that can be reached” in a specific actual case? What is the minimum relevant threshold of this probability, under which the burden of proof cannot be considered fulfilled? How are the said level of probability (maximum level that can be reached) and the level actually reached in an actual case linguistically expressed and measured? However, further on, the author demonstrates to prefer a model according to which the judge must reconstruct the facts reflecting the highest level of probability, regardless of whether or not a certain predefined degree of probability has been reached (op. cit., 230 et seq.). 96  More analytical versions of the same criterion do not give any conclusive help: see, on this subject, Taruffo, La semplice verità, cit., 218 et seq., esp. 222 et seq.; Id., La prova dei fatti giuridici, cit., 217 et seq., 269 et seq., 272 et seq. 97 Cf. Taruffo, La valutazione delle prove, cit., 260 et seq. 98  In this regard, see some ideas in Tassone, Concause, orientamenti recenti e teorie sulla causalità, in Danno e resp., 2013, 642 et seq. For an extensive examination of the way in which the “more probable than not” standard, in its “strong” and “weak” versions is, respectively, not applied/applied by North-American civil courts, where, according to the most innovative perspective, causal relevance is identified when the risk of occurrence of the harmful event has at least doubled, see Stella, Giustizia e modernità, cit., 308 et seq., 374 et seq. 99  Because it does not reflect at all the complexity of the judge’s reasoning, either from the quantitative or from the qualitative viewpoint. 100  If understood in the sense that, for the purposes of evidencing the existence of the ­c ausal link, or of any other fact relevant in the trial, an assessment of absolute certainty is not required (by the way, this can nearly never be obtained in the trial); instead, an assessment of logical probability suffices (this consideration has been accepted a long time ago: ex multis, Italian Court of Cassation, dec. no.  28656 of 30 November 2017; Italian Court of Cassation, dec. no.  6275 of 20 April 2012; Italian Court of Cassation, dec. no.  14759 of 26 June 2007). 101  When understood in the sense that the assumed existence (or inexistence) of the fact must be chosen as a rational alternative when it is logically more probable than the assumed inexistence (or existence) of the fact.

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self-referential102 , vague and indeterminate103, improper104, wrong105 , dangerous106 , concealing107, inadequate108 , arbitrary109. 102  When it is stated that the probability on which it must be grounded is logical probability, and that to choose the statement with the highest degree of corroboration it is necessary to resort to the “more probable than not” standard. 103  Because its meaning is unclear and the terms of its application are not clearly predetermined. As a matter of fact: a) What is more probable for some, could not be so for others, with no chances to identify the aspect that results in the different interpretation of the evidence and evidentiary elements (in this respect, see Travaglino, La questione dei nessi di causa, cit., 118 et seq.); this is so much the case that b) the existence of the causal link can be ruled out even when the items of proof gathered connote the existence of the causal link as more probable than not (see, for example, Court of Appeal of Potenza, 9 March 2017, in databank Pluris); c) merely statistical, epidemiological data are used, along with data of an actual case carrying equal evidentiary weight, or otherwise without making the due distinctions (see, for example, Court of Appeal of L’Aquila, 9 December 2014, in databank Pluris, about the accident of cigarette smoking on the harmful event, Court of Appeal of Rome, 15 January 2013, about the relations between timely diagnosis and harmful event); d) logical probability is confused with statistical, quantitative probability (see, for example, Court of Appeal of Rome, 5 December 2013, in databank Pluris); e) from another viewpoint, sometimes the 20 % causal event of the omission on the harmful event has been confused with the 20 % likelihood of that incidence (see, for example, Court of Appeal Ancona, 29 June 2017, in databank Pluris). 104  Because the conviction of the judge cannot be expressed in terms of “probability”, and a fortiori in terms of probability expressed through percentages. What does it mean that the fact is likely (probable) to an extent of 51 %? (see, for example, Court of Appeal of Roma, 5 December 2013, in databank Pluris; in legal comments, see Fornaciari, La ricostruzione del fatto nel processo, cit., 216–217). Lombardo, La prova giudiziale, cit., 507, where he observed that “it is not possible to transform the force of thought into numerical data”). 105  If understood in such a way as to involve departures, not provided for by law, from the rules regulating the burden of proof. As regards the risks of confusing the criterion of comparative assessment (“more probable than not” standard) with the rules of the burden of proof, see also Fornaciari, note  16, 224 e segg. 106  If understood in the sense that, to consider a statement as true, it is sufficient to be (even only hardly) more convinced of the contrary, regardless of (and therefore without specifying) the degree of corroboration reached (see Italian Court of Cassation, dec. no.  11789 of 9 June 2016; Court of Appeal of Naples, 15 March 2012, in databanks Pluris, where it is stated that “in the case under examination, it is more than probable that the lack of therapies has had such a probable causal relevance. If this were not the case, it would be impossible to understand the purpose for which they must be prescribed.”) From this perspective, see Fornaciari, book cit., 231 et seq., even by taking the pursuance of a reconstruction reflecting as closely as possible the pre-existing reality as an exclusive parameter of reference. However, it seems that in our legal system, this way of reasoning decidedly clashes with the rules on the burden of proof, according to which a certain statement can be considered true, and therefore, a certain a fact can be considered existent, when this has been (fully) proved in the trial, pursuant to Art. 2969 of the Italian Civil Code and Art. 115 of the Italian Code of Civil Procedure (to this subject, substantially in the same terms, see Lombardo, La prova giudiziale, cit., 529 et seq.). Actually, from the perspective criticised here, it seems difficult to deny the necessary, consequential acceptance of the claim also in the renowned “case of the blue buses” (about this, see Ferrer Beltrán, La valutazione razionale della prova, 95 et seq.). 107  Because it can conceal the real grounds for the decision. 108  Because it was conceived and developed in a legal and social context completely different from ours. 109  Because it enables any conclusion in the absence of adequate supporting arguments,

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If you take a close look, the criterion of “more probable than not” so applied seems to presuppose only the following question: “given all the evidence available for and against the uncertain fact dealt with in proceedings (witness statements, documents, clues, elements emerged in the report of the expert witness appointed by the Court, etc.), is the logical probability that it is true greater than the logical probability that it is false?”.

Actually, in order to be able to consider a certain fact true and to make it the basis of the decision while respecting the procedural order it is also necessary to answer the following further question: “given all the evidence available for and against the uncertain fact dealt with in proceeding, has the logical probability that it is true reached the standard of proof required by the law so to consider this fact fully proved?”. If the second question is not also answered in the affirmative, there is a risk of clearly violating the rules on the burden of proof no less than the rules of judgment, which depend on the first ones. It is therefore necessary to have criteria to answer the second question as well. In this situation – which is clearly a situation of uncertainty, also due to the lack of clear legislative guidelines – I would reckon that, on the one hand, it is necessary to stick as much as possible to the regulatory data, and on the other hand, that it is definitely necessary to insist on the highest possible degree of rationality in the judge’s statements. However, prioritizing the needs for rationality does not mean that these must become excessive (and therefore “irrational”) to the point of limiting the possibility for the judge’s assessment, which, moreover, is in contrast with the nature of the judge’s decision.110 And this demand for rationality goes with a further requirement which should never be missing in a valid standard of proof, that is to say that this must be structured in such a way that the intersubjective control of its application is made possible, even in case of an appeal.111 Therefore, as also emphasized in the renown Franzese decision with the express reference to Art. 192, par.  2, of the Italian Code of Criminal Procedure, it is still necessary to refer, first of all, to the provision on presumptive reasoning, namely, to Art. 2729 of the Italian Civil Code, which, as already recalled, says that the judge’s inferences, including that on the existence of the causal link, are admissible only if the consequences related to the unknown facts can be inferred from the known facts with a high degree of rational credibility112 . ­Besides, not unlike to what applies to criminal which can be accurately challenged in an appeal and in particular before the Court of Cassation. 110 See Haack, Difendere la scienza … entro i limiti della ragione, Milan, 2018; Badarò, Un modelo de epistemologia judiciária: o controle lógico e racional do juízo de fato no processo penal, São Paulo, 2018; Gradi, L’obbligo di verità, cit., 39 et seq.; Di Donato, Scamardella, Epistemologia e processo: un approccio di socio-clinical law per l’analisi dei casi giudiziari, in Sociologia del dir., 2013, 75 et seq. 111 See Ferrer Beltrán, La valutazione razionale della prova, cit., 152. 112  See, in legal comments, even if on the basis of different interpretative trends, Forna-

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proceedings, given that the “necessary” condition of the event qualifies as an objective requirement of civil torts, it is necessarily subject to the same criteria for ascertainment and evidentiary purposes to be adopted in civil proceedings for all the constitutive elements of the case113.

VIII. However, the main question is still unanswered: when, and according to what criteria, can I say that the evidence and items of proof are sufficient to ground the existence of the causal link? And therefore when, and according to what criteria, can I say that the assumed causation and the relevant statement of the judge present a high degree of rational credibility? At this point, I think that two different aspects must be taken into account and be kept distinct: a) the subjective conviction of the judge (intrinsic, subjective aspect of his or her assessment); and b) the objective degree of rational credibility of his or her assessment (extrinsic, objective aspect of the assessment)114. With reference to the first of these aspects, it is also possible to refer to “moral certainty” when the judge’s inner conviction is particularly strong, accurate ciari, note  16, 217 et seq. In case-law, see, recently, the decision issued by the ECJ, 2nd Division, on 21 June 2017, in the C-621/15 case, according to which Article 4 of Directive 85/374/ ECC of the European Council, of 25 July 1985, on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, must be construed in the sense that it does not prevent the application of domestic provisions on evidence, such as those regulating the burden of proof in the main trial, based on which the trial judge, asked to rule on a direct action intended to ascertain the liability of a vaccine maker for the damage caused by an alleged defect in the vaccine, can hold, in exercising his or her discretional power of assessment, that although medical research does not either establish or exclude the existence of a causal link between the administration of the vaccine and the development of the disease by which the injured party is affected, some factual elements invoked by the appellant amount to firm, specific, and consistent circumstantial evidence that enables one to conclude for the existence of a defect in the vaccine and of a causal link between the said defect and the disease. 113  In these terms, see the very recent decision no.  28656 issued by the Italian Court of Cassation on 30 November 2017, which states the terms of the “legal technique of the ascertainment of liability in civil law, which – unlike the ascertainment of criminal liability – does not require the absolute certainty (understood as exclusion of any reasonable doubt) that the ascertained fact inevitably results in a given consequence; instead, it considers the logical criterion of the so-called ‘high probabilistic certainty’ as sufficient to ground the causation. According to this criterion, a given fact (the omitted conduct), assessed just as if it involved an overall examination of all the actual circumstances, is identified – among many other facts, all of which are suitable to amount to ‘possible causal factors’ of a certain event – as the ‘most probable’ genetic factor, in the sense that the event occurred can be regarded, ‘more probably than not’, as an effect-consequence of that given fact” (without prejudice to the fact that, for the reasons indicated in the narrative, it seems preferable to talk of “high rational credibility of the judge’s speech” instead of “high probabilistic certainty”). 114  About this, see Ferrer Beltrán, La valutazione razionale della prova, cit., 144 et seq.

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and case-specific; it should be clear, however, that this aspect regards the judge’s consciousness, but has no external relevance from the perspective of the structure of the judge’s reasoning and his or her control in the appeal phase115. The second of the above-mentioned aspects is very complex and would require a long examination116 . Let’s analyse its main characteristics. First of all, it is necessary to point out that, when talking about an “objective degree of credibility” – or when stating that the criteria to assess evidence must be “objectively accepted and acknowledged”117 – it is only possible to refer to the fact that this degree and such criteria must not depend on the degree of subjective conviction of the judge, just mentioned. However, these expressions do not, and cannot, refer to something that can be measured with scientific tools, i. e., with tools that are accurate and correct and can thus be verified by anyone, just like a mathematical calculation or a formal, logical formulation118 . Actually, we have already seen that although it is an indisputable fact that the judge’s activity aims at ascertaining to any possible extent whether or not the facts alleged in the trial are true, and that the judge’s reasoning must be structured, as far as possible, on exclusively rational bases, it is almost undisputed – according to rigorous reasoning – that procedural truth is a non-demonstrative truth that proceeds point by point, and that the logic of the judge is mainly inductive, dialectical-rhetorical in nature, opinion-based, opinative and includes choices of value, and not demonstrative. And the greatest confirmation of this conclusion just comes from the impossibility to develop a theory of the degree of truthfulness of the judge’s statements, which can be verified on the basis of (strictly) objective parameters. Moreover, in this sense, it would suffice to consider, according to the above observations, that there are really very few cases in which the judge, to structure his or her inferential sets of reasoning, can rely on universal scientific laws of reference which, as such, have a degree of probability equal, or almost equal, to certainty119. 115 Cf. Taruffo, La semplice verità, cit., 85 et seq. Conversely, the need for “moral certainty” that the effects of different actions on the part of the professional would have been more advantageous for the client is dealt with in Italian Court of Cassation’s decision no.  12354 of 27 May 2009, regarding a case of professional liability of a lawyer (even if, soon after that, it is pointed out that “to this subject, judges have found that the appellants had failed to provide any element capable of causing one to hold, with reasonable probability, that the claim, if raised, would have been accepted”). 116  The complexity of this issue has been recently stressed by Fornaciari, La ricostruzione del fatto nel processo, cit., 215 et seq. 117 Cf. Taruffo, La valutazione delle prove, cit., 267. 118  In this regard, about the limits of the so-called theorem of Bayes, see Tuzet, Filosofia della prova giuridica, cit. 282 et seq.; for a recent, updated version of this theorem, see, however, Garbolino, Probabilità e logica della prova, cit., passim. 119  To this subject, see Gentili, Il diritto come discorso, Milan, 2013, 549 et seq. On this study, see, as a sort of criticism, Carratta, cit., 169 et seq., which, however, must accept the (in my opinion, conclusive) fact that the point-by-point reasoning comes into play whenever “the verification of the facts/identification of the false have not resulted in any decisive outcome.”

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These conclusions are clearly decisive for the purposes of the identification of the degree of corroboration that is sufficient to consider a statement in fact as true, also when this is the reconstruction of the causal link, as well as for the purposes of the identification of the forms of its control in the appeal phase, particularly, before the Italian Court of Cassation. And in this regard, the aspects previously described in terms of “plausibility”, “rational coherency” and “adequacy” in the context of the judge’s arguments are emphasized in particular: aspects that, briefly said, have the choice and the use of the norms born of scientific (universal and statistical) experience and based on the common sense120 . Well, if it is true that the evaluation of the evidence consists in the attribution of evidentiary weight to evidentiary elements, and principally it is reflected in the inference through which from a known fact, an evidentiary element or proving fact, the probability of another fact is inferred that one wants to know and it is assumed that it is the fact to be proven or the thema probandum;121 and if it is true that the judge’s reasoning is based on norms based on experience, qualified (i. e., born of scientific laws) or not qualified (i. e., born of generalisations drawn on common experience or common sense), in order to establish whether or not the judge’s reasoning in terms of assessment of evidence and means of proof is sufficient – and therefore, in order to establish the characteristics in presence of which we can state that the judge has legitimately held that a given fact is proven – it is necessary to refer to the rules whose respect ensures the legitimacy of the presumptive reasoning (Art. 2727 and 2729 of the Italian Civil Code). Now, in abstract, basically three different types of standards can be assumed. The evidence of a fact can be said to be reached when: a) the evidentiary elements are rarely associated with the unknown fact to be proven; b) the evidentiary elements can always be associated with the unknown fact to be proven; c) the evidentiary elements are normally associated to the unknown fact to be proven according to the rule of the id plerumque accidit. Well, intuitively it can be understood how the first two standards cannot be homologated: the first one because it would unreasonably prejudice the counterparty of the one that carries the burden of proof as, for its very own structure, that criterion would determine, without any logical justification, a truth that is disconnected from the prevailing way of the world’s functioning and, According to Lombardo, La prova giudiziale, 503, even when the judge can rely on an “universal scientific law” to be used as stronger premise for the evidentiary syllogism, “the evidentiary result has in any case a topical nature, proceeds point by point, and certainty remains in any case unattainable in judicial knowledge.” 120  See back in this chapter under II., at footnotes 26, 27 and 28. 121  Carcaterra, La logica nella scienza giuridica, cit. 104; Ferrajoli, Diritto e ragione, cit., 108 et seq. With regard to the activity of evaluation of the evidence, see Nieva Fenoll, La valoración de la prueba, Madrid, 2010. With regard to the evidence as qualitatively logic argumentum of the probable, see the interesting remarks of Panzarola, Il notorio, la judicial notice e i concetti di prova, in Riv. dir. proc., 2016, 610 et seq., esp. 628 et seq.

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thus, the unjustified fail of said counterparty; the second one because, on the contrary, it would unreasonably prejudice the party carrying the burden of proof as, for its very own structure, this criterion would determine the fail of said party if the latter should not be able to prove in terms of “certainty, absolute truth” the uncertain fact that is subject of the evidence; and thus, pretty much always, based on what has been said so far, also if the burdened party has offered elements of evaluation suitable to prove a reconstruction of the facts that is fully consistent with what normally happens in the world. The third standard thus remains: the fact is proven and can be presented to the judge to found the decision when the evidentiary elements are normally associated to the unknown fact to be proven according to the rule of the id plerumque accidit. Besides the exclusion of the other two, this criterion appears to be fully justified on the logical level: it is hard to see based on which principle it could be foreseen that the burdened party should prove less or more than what normally happens in the world, in order to justify her claim. However, this criterion has to be correctly understood. In the first place, always with the intention to stay as faithful as possible to the positive data, as said before, not only the scheme of logical reasoning (Art. 2727 of the Italian Civil Code), but also the rules of validity/legitimacy of the presumptive evidentiary reasoning should and have to be used: well, based on Art. 2729 of the Italian Civil Code and Art. 192, par. 2 of the Italian Code of Criminal Procedure, the existence of a fact can be inferred from evidentiary elements only if those are material, precise and consistent.122 Actually, it is the law itself that indicates the necessary standard of proof in order to consider the rule of the burden of proof to be respected and in order for the judge to put a determined fact as the basis for his decision. Indeed, if the judge can found the presumption – and thus consider a fact to be proven – on material, precise and consistent clues, it can be easily said that the party has proven the fact subject of the evidence by proving material, precise and consistent clues related to the truth of that fact. Thus all this said means, in the light of the remarks made in this paper, that those evidentiary elements, considered as a whole, have to represent – in order to hold the rule on the burden of proof to be respected and, in any case, in order to allow the judge to put a fact as the basis of his decision – an evidentiary framework that normally means, i.e. following the rule of the id plerumque accidit – measured on the basis of the world’s rules of organization and functioning – the truth/existence of the unknown fact to be proven.123

122 

For references, see retro, in footnote 87. on the reasoning according to the example already mentioned (see Ferrua, in footnote 21): that fingerprint means the transit of N. who has the same fingerprint. 123  Based

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And, in fact, the Italian Court of Cassation, as regards the presumptions and the presumptive reasoning, has stated that to regard a presumption as legally correct, the existence of the unknown fact does not necessarily have to be the only possible consequence of the known fact, according to an absolute and exclusive connection of necessariness (on the basis of the rule of necessary inference); on the contrary, it is sufficient that the unknown fact is unequivocally gatherable from the known fact, just like an assessment of probability based on the id quod plerumque accidit principle (by virtue of the rule of probabilistic inference), so that the judge can form his or her free conviction from the discretional assessment of the selected circumstantial evidence, provided that these present the legal requirements of materiality, precision and consistency, whereas a presumption based on merely hypothetical data cannot be regarded as evidence124. Obviously, as foreseen by the rules of the rebuttable presumptions, the counterparty will be able to offer the evidence to the contrary of what appears to be proven based on the evidence offered by the burdened party; in other words: as much as evidentiary elements of the truth of the unknown fact according to the id plerumque accidit are present in the documents of the proceedings, the counterparty will be able to prove that, in the specific, actual and unique, unrepeatable historical situation subject of those proceedings, things went in an exceptional way with respect to the rule of the id quod – but not semper – accidit. In these cases, but only in these ones, the theory of the preponderance of evidence can be invoked, given that both the statements are confirmed in terms of logical probability sufficient to hold the uncertain fact to be proven.

124  Italian Court of Cassation, dec. no.  2632 of 5 February 2014; Italian Court of Cassation, dec. no.  24211 of 14 November 2006; Italian Court of Cassation, dec. no.  23079 of 16 November 2005; Italian Court of Cassation, dec. no.  15266 of 27 November 2000. As regards the degree of logical probability/rational credibility necessary to ground the presumptive finding, see Lombardo, La prova giudiziale, cit., 509 et seq.; Taruffo, Certezza e probabilità nelle presunzioni, in Foro it., 1974, V, 83 et seq. The evidence of the id plerumque accidit has to be understood in the sense that it implies such an evaluation: given the presence of all the available (previous) evidentiary elements in the actual case, normally the unknown fact, subject of the evidence, occurs. Thus, it is an evaluation that is deep-rooted and based on the single actual case and not in the abstract. In the abstract, the link between the fact A and the fact B could be weak (low occurrence), but this does not matter if the available evidentiary elements depose in the sense that, in that actual case, the occurrence of the fact B represents a “normal” consequence of the fact A. Obviously, the lesser the fact B is associated with the fact A, in the abstract and following the common experience, the more significant the evidentiary elements, necessary to reach the threshold of the id plerumque accidit, will have to be (from the point of view of them being material, precise and consistent). In fact, in those cases, it is not only about proving the id quod rare accidit, but rather to offer evidentiary elements in whose presence it can be said that the fact B normally follows the fact A. In other words: the fact B, however rarely associated in the abstract to the fact A, in practice normally (plerumque accidit) it is associated to the fact A given certain evidentiary elements (Y, J and K), elements existing in the actual case.

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However, the Court of Cassation has also stated that, even after the 2012 restrictive reform, the issues related to the value and applicability of presumptions are not excluded from the verification on points of law. Actually, the new and peculiar form of the verification on the reasoning of the decision changelled reduces, but does not eliminate, the verification on the existence of the requirements for the admission of the rebuttable presumption under Art. 2729, par.  1 of the Italian Civil Code; this is because the appeal is possible for breach of law, pursuant to Art. 360, par.  3 of the Italian Code of Civil Procedure, not only in the rare case in which the judge has directly breached the rule in question by declaring that the presumptive reasoning can be based on circumstantial evidence that is not material, precise, and consistent; but also when he or she has based the presumption on circumstantial evidence that is not material, precise, and consistent, i. e. by assuming, under Art. 2729 of the Italian Civil Code, the existence of facts that do not present the legal requirements prescribed, thus committing a false application of the rule, exactly mentioned in the formulation of the theoretical case, but incorrectly applied to an actual case125. 125  Italian Court of Cassation, Full Bench, decisions no.  8 053–8054 of 7 April 2014; and, more recently, the important decision issued by the Italian Court of Cassation, dec. no. 16502 of 5 July 2017, esp. in the grounds. And, even more recently, in the last specific direction indicated in the text, the Italian Court of Cassation has pointed out that: “the ‘material’ refers to a logical concept, general or specific (i.e. corresponding to principles of logic in general or to principles of a particular logic, for example of scientific nature or of a lex artis) that expresses nothing else […] than the fact that the presumption has to be founded on a probabilistic reasoning according to which given a known fact A, it is probable that a fact B has occurred (on the contrary the idea that would like to have implied ‘material’ that the presumptive inference is ‘certain’). The precision expresses the idea that the probabilistic inference leads to the knowledge of the unknown fact with a degree of probability that directs to the fact B and does not leave space, always at the level of probability, to a different direction, i.e. also to another or different facts. The consistency expresses […] a requisite of the presumptive reasoning (i.e. of a ‘not false’ enforcement of Art. 2729 of the Italian Civil Code), that does not concern it in an absolute way, that means not considered in itself, as the other two elements, but relatively, that means within the framework of the possible existence of other considered evidentiary elements, wanting to express the idea that the presumption is admissible as it directs to the knowledge of the fact in a way consistent with the other evidentiary elements that, in fact, can or cannot be other presumptive reasoning” (Italian Court of Cassation. dec. no. 1785 of 24 January 2018). With regard to the admissibility and effectiveness of the presumptive evidence on the ascertainment of the causal link and given also the lack of a specific covering law (and even when the health authorities are brought to exclude this link), see CGUE, Division II, sentence of 21 June 2017, case C-621/15, cit. Among the authors, on the controls of the presumptive reasoning, with reference to the three requisites of materiality, preciseness and consistency, and the other criteria of rationality of this reasoning, see, for all, Gamba, Presunzioni, cit. § 5 and 6. However, the approach has to be remembered that seems very restrictive when compared to the cited one of the Italian Court of Cassation, according to which there is no violation of Art. 115 of the Italian Code of Civil Procedure in the presence of the mere circumstance that the judge evaluated the evidence brought by the parties assigning more convincing power to some of them rather than to others, being this activity consistent with the paradigm of Art. 116 of the Italian Code of Civil Procedure (Italian Court of Cassation, dec. no. 5009 of 28

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These additional considerations confirm other conclusions that must be adequately emphasized: a) the judge’s logic is neither rigorously deductive nor formalised; rather, it is an inductive, dialectical and rhetorical, opinion-based logic, involves crucial, discretional choices of value, even if it can and must be structured on rational bases;126 b) as a consequence, there can be cases in which, on the same statement in fact, it is possible to reach a conclusion other than that contained in the decision, equally presenting opinion-based logicality (and of course it is also possible to reach illogical conclusions: just think, for example, of conclusions grounded on contradictory statements or very weak inferences)127; c) the assessment on points of law related to the value and applicability of presumptions, by including and implying the assessment on the correct use of the concepts of materiality, precision and consistency, irrimediably includes and involves the verification on the logicality of the judge’s reasoning128; d) an February 2017). Regarding these issues, see De Stefano, La giustificazione della decisione di merito e il controllo di legittimità: vizio motivazionale riformato, regole del ragionamento probatorio, presun­zioni e inferenze, easily available online. 126  The nature of the argumentative, opinative nature of the judge’s reasoning also depends on the (most of the times) uniqueness and the non repeatability of the single case under decision, in which the complex and articulated net of the evidence and items of proof and, thus, of the clues, is absolutely peculiar for the specific and – again – non repeatability conformation, quantity and quality of the clues themselves in the actual case. These “unique” clues, indeed, considering their specific and not repeatable features (of quantity, quality and specific conformation), do not consent the replication, when evaluating them, of epistemological objective schemes, determined beforehand and applied (almost) automatically, if not rarely and in general terms, thus not very useful for the decision of concrete, peculiar facts subject to the case. 127  Ferrua, La prova nel processo penale, cit., 31 et seq. Garbolino, Probabilità e logica della prova, cit., 28: “The degree of belief in a given proposition measures our subjective disposition to believe that a given proposition is true and does not measure an objective ‘degree of truth’ of such a proposition, because propositions are true or false, tertium non datur (there is not a third option): there is only one truth. A proposition is true if and only if things are as it states that they are, but different, rational individuals may have different degrees of belief in the same proposition because belief is a mental state related to the evidence and background knowledge that one possesses, and as such it may be different for people who are reasonable, but in possession of different information. The coincidence between mental state and state of things, what we classically define as knowledge, is something that rarely happens when we have to do with contingent events, i. e. events whose truth is not logically necessary, such as all historical events. Therefore, the knowledge that the historian and the judge may have of such events, in most cases, is not justified true belief, but only justified belief.” In this regard, the following sentence from Pirandello’s work “Sei personaggi in cerca d’autore” comes to mind: “We all have a world of things inside us; each of us has his own world of things! And how can we understand each other, sir, if I give the words I say the meaning and value of things as they are inside me; whereas whoever listens to them, inevitably perceives them with the meaning and value they have for themselves, of the world as they have inside them?” For a clear example in case law, see ECJ, 2nd Division, on 21 June 2017, in the C-621/15 case. As to the relationships between semantic conventions and truth see now Gradi, L’obbligo di verità, cit., 11 et seq. 128  See also the important, recent dec. no.  16502 issued by the Italian Court of Cassation, on 5 July 2017, esp. in the grounds; as well as the Italian Court of Cassation, dec. no. 1785 of 24 January 2018. In legal comments, see, very clearly, Ferrua, La prova nel processo penale, cit., 247 et seq., esp. 249–250: “The burden to document the lack of grounds, illustrating the

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adequate verification on the (opinion-based) logicality of the judge’s reasoning on the material factual statements of the case cannot disregard the radical reformulation of the finding in fact, including its components of value – even only according to the case records, to uphold or quash it129; e) the final judgment (which includes choices of value), of the Italian Court of Cassation, with its recognized, upheld (or denied) (opinion-based) logicality, is such not because it is grounded on parameters of formal or objective, “objectively” measured, truth, but rather in view of the institutional role of the Court as a top authority, i. e. as supreme representative of the people in the name of whom it exercises the jurisdictional function130 ; f) these premises lead to the conclusion that the soflaws of the point-by-point arguments, lies with the appellant. In its ascertainment, the Italian Highest Court inevitably re-reads and re-interprets the evidentiary elements. The inductive inference is but the interpretation of evidence, the meaning that evidence has acquired with respect to the proposition to be proved; and claiming to verify the reasoning without questioning the interpretation, the meaning of evidence would be self-confuting.” 129  Cf., for example, Italian Court of Cassation, dec. no.  25119 of 24 October 2017; and, even more clearly, Italian Court of Cassation, dec. no.  13096 of 24 May 2017; Italian Court of Cassation, dec. no.  5704 of 7 March 2017; in trial courts’ de­cisions, see for example, very clearly, the decision issued by the Court of Appeal of Rome on 15 January 2013, in the section describing the grounds, in databank Pluris. In legal comments, see Ubertis, La ricerca della verità giudiziale, cit., 12; Lombardo, La prova giudiziale, cit., 530–531. Actually, just as the finding on the merits must be complete, accurate, thorough, and plausible to be regarded as having a high degree of rational credibility, the verification on this finding must be equally complete, accurate, thorough, and plausible, in order to adequately confirm or deny its high degree of rational credibility (even though, of course, there can be cases in which the illogicality of the trial judge’s reasoning can be easily stressed by the Italian Supreme Court). 130  See Italian Court of Cassation, Criminal Division, dec. no.  48320 of 12 November 2009, stating that “it is clear that, in the end, the Court of Cassation makes an assessment of value, just like those situations in which it considers as ‘weak’ the rule of inference used by the trial judge, but this falls within the assessment of the points of law provided for by the above-mentioned provision, because insufficient evidence or a ‘weak’ rule of inference used by the judge, grounding the decision, irremediably compromises the logical reasonableness of the decision”. This conclusion cannot be avoided, if it is taken into account that the finding in fact too is based on choices of value, and that the disputes on these choices – even when regarded as possible outcomes of “cognizance activities” (cf. Ferrua, La prova nel processo penale, cit., 43), and thus, as rationally justifiable choices – cannot be finally resolved at all times; and in any case, when they can be, their resolution can only come from point-by-point arguments and from the persuasion that, as such, they are questionable: see Guastini, Tre domande a Francesco Viola, in Jori (by), Ermeneutica e filosofia analitica. Due concezioni del diritto a confronto, Turin, 1994, 238. In this respect, see also Patti, Prima lezione. La “costruzione” del fatto nel processo, cit., 37–38, where it is stated “that the construction/reconstruction of the case depends on the work of who judges and applies the provision, on their cultural tools and their view of society, and that, as a consequence, the fact does not represent something unchangeable and certain, but instead, something that is the result of a pre-understanding”. In civil case-law, see Italian Court of Cassation, dec. no.  11919 of 26 June 2004, where it is stated that “in the social reality of a given context, the so-called standards of assessment used by the trial judge in integrating the so-called ‘elastic’ rules co-exist with the logical rules, which, in a wide sense, resemble norms based on experience and aphorisms. These too are standardized and applied by a given community in forming the reasoning, and give rise to the ‘logic’ of a certain society, to which the trial judge must stick in supporting their conviction on the facts

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called unquestionability of the finding in fact consists exclusively in this, i. e. in the fact that the Italian Highest Court cannot give the findings in fact of an actual case submitted to his or her examination an interpretation other than that given by the trial judge. Therefore, for the Italian Highest Court, this does not mean that the assessments (namely, the “choices of value”) made by the lower judge to reach the partial solutions and the final, summary assessment on the causal link, which is the exclusively responsibility of the trial judge (pursuant to Art. 384, par.  2, last sentence, of the Italian Code of Civil Procedure) cannot be questioned131. Briefly, to summarise: A)  the judge can find and declare the truth of a fact and/or the existence of the causal link when, given a certain legal/structural framework of causation132 , and (in the actual case examined, the circumstantial evidence that can be assigned to the contradictoriness of versions, that of a bank’s employee dismissed on disciplinary grounds as opposed to the charge that he has misappropriated a certain sum)”. With regard to ascertaining the fact which requires scientific knowledge, see recently the different evaluations of the Italian Court of Cassation concerning the usability of the “parental alienation syndrome” (socalled PAS), reported in La PAS nelle aule giudiziarie, by Cassano and Grimaldi, in Corr. giur., 2016, 703 et seq. Finally, on this issue, see the Italian Court of Cassation, dec. no. 6919 of 8 April 2016. In this regard see also Vanacore, Falsificazione e processo: come e quando la scienza diviene sentenza?, in Danno e Resp., 2016, 1143 et seq. 131  Substantially in these terms, even if based on premises that are completely different from the assumptions in this text, see Bove, Il sindacato della Corte di cassazione. Contenuto e limiti, Milan, 1993, 247. On this issue, see, very clearly, from the perspective indicated in the text, Ferrua, La prova nel processo penale, cit., 235 et seq., esp. 247 et seq., esp. 249–250. In case-law, in the terms indicated in the text – and to be honest, as a complete surprise, given that it is a decision of the Court of Cassation issued after the 2012 reform on the examination by the Court of Cassation of the lack of grounds – see the recent, important decision issued by the Italian Court of Cassation, (no. 16502) on 5 July 2017, which describes the current system as follows: “the verification exercised by this court on points of law can never go as far as to assess the outcome of the above-mentioned logical process (Italian Court of Cassation, Full Bench, dec. no.  8053 of 2014, point 14.8.3) and, therefore, the result of the trial judge’s actual method used to proceed with the prudent assessment of the evidentiary material; however, even if remaining very limited, such verification must be made (to ensure the intimate consistency of the statements made as a guarantee of the reliability of the finding in fact, which, in turn, constitutes the basis for the finding in law) to verify the accuracy of the logical reasoning involving premise-norm based on experience-consequence, i. e. the accuracy of the norm based on experience subsequently applied; and it must equally verify the reasonableness – or acceptability or plausibility or, in a wide sense, truthfulness – of the premise considered per se; failing this reasonableness or plausibility, the relevant ground will remain only seeming.” On the grounds of the judgment and its possible defects see, lastly, Aliste Santos, La motivación de las resoluciones judiciales, Madrid, 2018. 132 See, for example, Italian Court of Cassation, dec. no.   18969 of 31 July 2017; Italian Court of Cassation, dec. no.  17084 of 11 July 2017; Italian Court of Cassation, dec. no.  13096 of 24 May 2017; Italian Court of Cassation, dec. no.  5704 of 7 March 2017; Italian Court of Cassation, dec. no.  4208 of 11 February 2017; Italian Court of Cassation, dec. no.  3136 of 7 February 2017; Italian Court of Cassation, dec. no.  12923 of 23 June 2015; Italian Court of Cassation, dec. no.  10291 of 20 May 2015.

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after having identified the “elements” that can be assessed independently133, the evidence and the items of proof of the specific, unique, and non-repeatable actual case, lead to the conclusion that, on the basis of a justifying argument having a high degree of r­ ational credibility (namely, when such evidence and items of proof “mean that”)134 the fact X was caused by the fact (or omission) Y135. B)  The judge’s supportive reasoning presents a high degree of rational credibility when, in relation to the examination of the evidence and items of proof in the actual case, it is, from the linguistic, syntactical, and semantic viewpoints, and with reference to the generalisations born of the experience on which it is grounded, complete, reliable, plausible, rationally consistent and reasonable, according to the community of reference living in a certain cultural, spatial and temporal context136 . 133  These also include, according to the case-law of the Italian Court of Cassation, the “actual and real favourable occasions to obtain a certain good”, the so-called chances (among many other decisions, see Italian Court of Cassation, dec. no.  25102 of 24 October 2017; Italian Court of Cassation, dec. no.  11906 of 12 May 2017; Italian Court of Cassation, dec. no.  9571 of 13 April 2017). 134  Ferrua, La prova nel processo penale, cit., 50. 135  Therefore, also when there is no scientific law capable of explaining causation from the naturalistic viewpoint (see Viganò, Relazione, in AA.VV., Il rapporto di causalità a dieci anni dalla sentenza “Franzese”, cit., 33 et seq., esp. 35–36). 136  See back, footnotes 24–28. From this perspective, it seems that the question asking what is the degree of statistical, frequentitst, or Pascalian probability that is necessary to take a certain norm (scientific or based on common sense) as ground for the decision is not particularly relevant. And this: a) because, as we have seen, the generalisations adopted by the judge in an individual case can be endless, completely different from each other and, above all, variedly relevant in the context of every non-repeatable sub-ascertainment; b) because, taking into account the way in which the judge reconstructs the fact in the trial (see back to II. of this chapter), what is essentially relevant is the overall logical process followed to make this reconstruction (according to which, for example, in an actual case it is possible to state that the fact X has been caused by the fact Y). And this reconstruction and logical process can be validly accepted exclusively in terms of rational credibility (or logical or Baconian probability), not in terms of Pascalian probability. This means that this credibility must be accepted by considering the reconstruction as a whole, to verify the degree of confirmation of the hypothesis selected, and not by isolating the individual generalisations used by the judge (see, for example, the very recent decision of the Italian Court of Cassation, no.  25119 of 24 October 2017). Actually, from this perspective, the information about the statistical probability of the association between facts X and Y is not decisive at all, because in an actual case it may also be lacking (on the other hand, where available, this information could at most represent one of the many arguments used by the judge to ground and justify his or her decision, but never the sole ground and justification of the decision itself). See, this subject, the important, recent decision no.  16052 issued by the Italian Court of Cassation, on 5 July 2017: “There will be, in this regard, empirical rules admitting wider discretion, because the consequence is associated with the premise (cause) by a less strict link in terms of causation or probability: therefore, the assessment of the consequence will have to be more ‘prudent’ and, thus, supported by feedback or even only by a context in which the element assessed as premise can be relevant, due to the high probability of the assumed consequence; conversely, there will also be empirical rules that do not admit that wider discretion and even exclude (apart from unquestionably exceptional or residual conditions) results other than those reflecting a consolidated pattern: this

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C)  The ultimate judge asked to establish or deny the existence of a high degree of rational credibility in the judge’s reasoning is the Italian Court of Cassation, acting not by virtue of objective and absolute parameters, numerically measurable or measurable according to the rules of formal logic137, but rather as a representative of the will of the people in whose name it exercises its judging function and as a supreme body of the jurisdictional system in Italy. This reconstructive proposal presents the following characteristics, which, in my opinion, should be considered for the purposes of (desirable) consistency in court decisions: i) it is grounded, as far as possible, on provisions of positive law (Art. 2727–2729 of the Italian Civil Code and Art. 192 of the Italian Code of Criminal Procedure); ii) it enables the adoption of a consistent criterion for evidentiary reasoning and for the ascertainment of the facts in civil cases, including the ascertainment of the causal link (regardless of the area of liability and regardless of the element or entity that can be assessed independently138), save, of course, for the specific provisions on the burden of proof; iii) it enables the adoption of a consistent criterion for evidentiary reasoning and for the ascertainment of the facts both in civil cases and in criminal cases, including the ascertainment of the causal link and the structural legal definition of causation that has been adopted; iv) it enables the adoption of a criterion that can be adequately controlled through the ground for the decision, also – if the legal requirements are met – before the Court of Cassation (this was surely the case on the basis of Art. means that the assessment of the consequence can be substantially automatic or, viceversa, much more thorough and accurate if the consequence differed from the normally expected outcome of the relevant causal sequence. Finally, if the rule breached is the more specific rule of the necessary seriousness, accuracy, and consistency of the elements to be used as a basis for the presumption, then it will also be possible to verify the assessment made by the trial judge on those requirements.” What matters is that the overall evidentiary framework means and therefore justifies, based on the id quod plerumque accidit, the factual statements made by the judge on the basis of his decision. Also, we cannot fail to note that the use of the term “probability”, even if followed by the specification “logic”, is inevitably a source of confusion (with statistical probability or in any case probability based on mathematical calculation), so that, even in this specific regard, it is decidedly preferable to talk exclusively about “rational credibility” of the judge’s reasoning and reconstruction. “Rational credibility” that, depending on the degree of corroboration offered by the evidence and items of proof, and depending on the selection, method of use and “strength” of the generalizations used, may be low, medium or, for the purposes of legitimate reasoning, high (based on an assessment to be finally left in charge, as stated in the text, of the Italian Highest Court, which will have to assess whether the respective basic premises are serious, accurate, and consistent). 137  Such rules of formal logic are unlikely to exist in the finding in fact, but in any case, they are inapplicable to the gnoseological and epistemological activity of the judge, taking also into account the uniqueness, specificity, and non-repeatability of the actual case examined and of the inevitable findings of value involved. (see Blaiotta, Carlizzi, Libero convincimento, ragionevole dubbio e prova scientifica, cit., 464–465; Blaiotta, Causalità giuridica, cit., 384). 138  Just as the so-called chance (ex multis, Italian Court of Cassation, dec. no.  25102 of 24 October 2017).

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360, par.  5 (old wording) of the Italian Code of Civil Procedure, and probably still today139.

IX. Do these considerations and conclusions impose, as an inevitable, logical consequence, a rejection of the argument – which has by now become living law – that, from the viewpoint of the standard of proof, there are two models to ascertain the facts and the causal link, i. e., the civil and the criminal model? The problem (of positive law) is represented by the fact that criminal trials only are subject to a rule that, even if developed and applied by case-law as a standard of proof despite the absence of any regulatory basis, has been a rule of positive law for slightly more than a decade now. As a matter of fact, according to Art. 533 of the Italian Code of Civil Procedure “the judge shall convict an accused if the latter is found guilty for the crime with which they have been charged beyond any reasonable doubt”140 . With reference to such a complex issue, it is only possible to formulate here some theoretical hypotheses for further study. First of all, the problem would be easily resolved if it was accepted that the reform of Art. 533 of the Italian Code of Criminal Procedure involves a merely descriptive change, a banal Americanism, or a mere clarification of contents already implicit in the literal wording and in the logic of the provisions set out in the code that provide for the criterion to ascertain the uncertain fact in criminal trials141. Actually, as we have seen, in more than one occasion the Italian Court of Cassation, Criminal Division, has stated that “apart from the representative expression, taken from Anglo-Saxon law, the constitutional principle of the presumption of innocence and the culture of evidence and its assessment, […] ground the sentence, and thus it has been correctly noted that the said 139  Poli, Diritto alla prova scientifica, obbligo di motivazione e sindacato in sede di legittimità, in Giust. civ., 2018, 417 et seq., esp. 457 et seq.; De Stefano, La giustificazione della decisione di merito e il controllo di legittimità, cit., 23 et seq.; in case-law, see the fundamental dec. no.  16502 of the Italian Court of Cassation, issued on 5 July 2017 as well as more recently, Italian Court of Cassation, dec. no 1795 of 24 January 2018; and, according to a different, but less acceptable, perspective, see dec. no.  26958 issued by the Court of Cassation, on 15 November 2017; and dec. no.  11892 of 10 June 2016. 140  Regarding this rule which has by now become part of positive law, see a recent work by Catalano, Ragionevole dubbio e logica della decisione, cit., passim, also for all the appropriate references in legal comments and case-law; as well as Canzio, Taruffo, Ubertis, Fatto, prova e verità (alla luce del principio dell’oltre ogni ragionevole dubbio), in Criminalia, 2009, 305 et seq. As regards the issue of the appropriateness of various standards of proof depending on the type of trial (criminal or civil), see the considerations of Ferrer Beltrán, La valutazione razionale della prova, cit., 143 et seq. 141  For references, see Catalano, Ragionevole dubbio e logica della decisione, cit., 1 et seq.

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sentence has a merely descriptive, rather than substantial, function. As a matter of fact, in the past the ‘reasonable doubt’ on the guiltiness of the accused caused their acquittal pursuant to Art. 530, par.  2 of the Italian Code of Criminal Procedure, which means that the applicable criterion for the assessment of evidence is neither different nor stricter than the criterion adopted previously […], conversely, this is confirmed as an immanent principle of our legal system, […], according to which the conviction is possible only when there is the procedural certainty of the guiltiness of the accused”142 .

And the situation would not change too much if the rule in question were regarded as “a general framework capable of summarizing, with a concise formula, the liberal-garantistic values and the epistemological criteria informing the mechanism for the reconstruction of the facts and the logic of assessment”143; or by considering some more options for the application of this principle, for example in relation to the prerequisites necessary to reverse in appeal, with a conviction, an acquittal decided by the first instance court144. Things would change if this rule (bard) were given a more incisive value and if it were held, for example, that the existence of this rule in (only) criminal trials plays a role in connection with the burden of proof. In this regard, a valid example can be made with reference to the proof of the causal link: in civil cases, the claim can be accepted when there is evidence of the elements that describe the causal link according to the reasoning reconstructed in the decision, even if there is no full evidence of the inexistence of other alternative causal factors (i. e., the lack of evidence of their existence is sufficient: here the doubt does not exclude the conviction); conversely, the judge in a criminal case can convict the accused only when he or she is reasonably certain of the inexistence of other alternative causal factors (here the doubt exclude the conviction)145. And the analysis could continue by considering, on the one side, the “constitutive” facts (facts causing the start of something) that must be fully proved, and on the other side, the “extinctive” facts (facts causing the end of something), whose doubtful truthfulness does not prevent the acceptance of the claim in civil cases. Briefly the “more probable than not” standard enables (if well founded) the acceptance of the claim when the “constitutive” facts (facts causing the start of 142  For example, among others, see Italian Court of Cassation, 4th Criminal Division, dec. no.  12799, dated 6 February 2007. 143  Catalano, Ragionevole dubbio e logica della decisione, cit., 205, which adds that “the ethical “soul” and the epistemological “soul” of the bard rule merge into a principle that provides for the adoption of doubt as a method to ascertain the facts, and for the presumption of innocence of the accused as a starting point for the judge’s assessment.” 144  Regarding this issue, see Full Bench of the Criminal Divisions of the Italian Court of Cassation, dec. no.  18620 of 14 April 2017, already mentioned above. 145  Italian Court of Cassation, 4th Criminal Division, 12 November 2009, Durante; Italian Court of Cassation, 1st Criminal Division, dec. no.  35107, 31 May 2011. In legal comments, see Iacoviello, La Cassazione penale. Fatto, diritto e motivazione, cit., 468: “the judge is required at all times to provide an alternative explanation for the facts, even if defence fails to do this”, given that “logic is one of the judge’s ex officio powers”.

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something) are fully proved (and to this end, the doubt on alternative factual accounts or on facts that cause the end of, change, or prevent, something, is irrelevant); the bard standard enables the conviction only when the exclusion of alternative factual hypotheses is fully proved too (to this end, the doubt on the factual hypotheses alternative to that stated in the decision is relevant)146 . However, as already said, for the time being these are merely theoretical ­hypotheses for further and more in-depth study.

X. Below are three last considerations before the final conclusion. A)  Up to now, we have talked about the judge’s activities: free conviction; prudent assessment; assessment of evidence and items of evidence; reasoning; inferences; decision. However, it is necessary to take into account that, especially for the ascertainment of the causal link, the judge needs scientific knowledge nearly on all occasions. This means that the judge must appoint an expert witness, who is responsible for performing all the activities specified above. This circumstance involves other, additional factors that complicate the issue of the proof of the facts in general, and of the causal link in particular, related to the use of scientific evidence in the trial, which cannot be investigated in greater detail here, but which are worth mentioning. Brief: a) the appointment of an expert witness involves the problem of the limits to the judge’s cognizance power in relation to the observations, assessments, and conclusions of the expert witness, which are based on technical-scientific knowledge. As a matter of fact, it is understandable to grasp a sort of contradiction in a system that first, on the one hand, provides for the judge’s duty to resort to an expert witness when, for the findings in fact, there is the need for scientific, technical know­ledge, i. e., for knowledge beyond that required of the judge, acting, in this case, as a representative of the average man; and then, on the other hand, (the system in question) entitles the judge to question and criticise the expert witness’s assessments and 146 Cf. Ferrua, La prova nel processo penale, cit., 5, where it is pointed out that in criminal trials – which must ascertain whether the accused is guilty – the burden of proof “or, better, the risk of failure to provide evidence, lies with the prosecutor, who is required to prove that the conduct of the accused completely reflects all the constitutive elements of the criminal offence. If innocence was the subject matter of the trial, the burden of proof (to prove innocence) would lie with the accused; and, if the subject matter of the trial were the alternative between culpability and innocence as equivalent evidentiary hypotheses, a higher probability of the former compared to the latter would suffice to justify the conviction.” Conversely, as stated in the text, in civil proceedings the doubt on the existence of facts that end, change, and prevent something, or the higher probability of the existence, rather than inexistence, of the right, do not prevent the acceptance of the claim and the finding of the existence of the subjective right, where this finding is based on an ascertainment characterised by a high degree of rational credibility.

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conclusions, and replace them with his or her own observations, assessments, and conclusions147. b) In connection with the duty to provide grounds for the decision, the peculiarity of scientific evidence compared to o ­ ther, discretionally assessable evidence (meaning non-scientific discretionally assessable evidence, the results of which are based on the average man’s know­ledge) lies in the fact that the background of knowledge used by the judge in the “management” of scientific evidence (management to be understood here in a wide sense, including, therefore, admission and assessment) is not easily understandable for, and assessable by, the average man. As a consequence, the judge has a duty to explain his or her choices in a particularly accurate and rigorous way, because it is impossible to verify later, through an examination of the grounds for the decision, whether or not the judge has correctly used his or her prudent assessment, i. e., whether or not the judge has made reasonable, adequate decisions acceptable by the community of reference, and not, conversely, illogical decisions or even decisions that are completely out of context in the scientific community of reference. The more technical the knowledge used by the judge for forming his or her conviction, the more complex the assessment of the rationality of the process that led to that conviction for those who are not experts in the particular scientific subject under consideration, it follows that the explanation for the judge’s reasoning in the grounds for the decision must be particularly clear, extensive, comprehensive, and detailed148 . As already recalled, in civil cases too the right to evidence includes both the guarantee of a rational answer, of the factual account, of the reasoning, and of the evidentiary connections the judge has identified and used to ground his or her “free conviction” and the decision, guarantee represented by the grounds for the decision; and also, given the strength of this guarantee, the verification on points of law, left in charge of the Court of Cassation, to ascertain the logicality of the trial judge’s evidentiary reasoning in the ascertainment of the fact149. B)  These last considerations, and more generally, all the observations in this speech, strengthen the need for (an even substantial) duty for the judge to provide grounds for his or her decision on the alleged facts, and therefore the need to avoid further limitations to such grounds; but they also strengthen the need 147  Poli, Diritto alla prova scientifica, cit., 444 et seq. Patti, Prima lezione. La “costruzione” del fatto nel processo, cit., 49. 148 Conversely, there are trial court’s decisions on very delicate issues, which merely ­directly refer to the conclusions of the expert witness or otherwise provide seriously inadequately grounds (see, for example, in relation to damage caused by the administration of vaccines, dec. no.  260 issued by the Court of Pesaro on 1st July 2013, Court of Rimini, dec. no.  148 of 15 March 2012; Court of Busto Arsizio, dec. no.  413 of 2 December 2009; Court of Ascoli Piceno, dec. no.  489 of 5 June 2008; all of which are easy to find on the Internet). 149 Cf. Taruffo, L’istruzione probatoria, in AA.VV., La prova civile, by Taruffo, cit., p.  87 et seq. In this regard, recently, see also Irti, Le due Cassazioni civili (in difesa della motivazione), in AA.VV., La nuova Cassazione civile, by Di Porto, Padua, 2017, 17–18.

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for (even substantial) verification of the (logicality) of the grounds provided by the judge, and therefore, in this case too, the need to avoid limitations to such grounds. As a matter of fact, when asked to assess the (logicality of the) grounds for the decision, the Italian Court of Cassation must identify a set of parameters and criteria – possibly, sector-specific (for example, medical liability, occupational diseases, etc.) – on the use of scientific evidence in the trial, in order to make it possible to question this use also before the Court of Cassation150 , and also to define as accurately as possible the conditions on which the trial judge may state that the relevant facts are true and that the causal link does exist. This has the clear and inescapable purpose: i) of reducing, as far as possible, the vagueness of the criteria usually adopted and, in this way, if necessary, the excessive (because it cannot be controlled) discretional power of the judge; whilst ii) favouring, still as far as possible, the controllability, consistency, and foreseeability of court decisions.151 C)  From the perspective just outlined, it emerges very clearly that the “more probable than not” (or the “preponderance of evidence”, or the “prevalent logical probability”) standard is useless, indeed, dangerous, for how it is applied today in Italy. As a matter of fact, this vague, indeterminate, and improper standard can end up being nothing more than a mere verbal, rhetorical expedient, a stylish formula quite conveniently used to provide a seeming ground for the most varied conclusions, which, however, in that case, are not supported by any adequate, rational, controllable reasoning152 . In those situations in which it is reckoned that it is impossible to “do justice” due to a lack of adequate tools to assess causal relations153, it is definitely unnecessary (indeed, it is dangerous, for the reasons 150 

Poli, Diritto alla prova scientifica, cit., 464 et seq. On the other hand, an incisive control of the finding of facts by the judge of the Court of Cassation, is surely admitted in the main legal systems of civil law: as to the situation in Germany and Spain see Panzarola, Il confine fatto-diritto nella evoluzione della Corte suprema tedesca e del Tribunal supremo spagnolo, in Atti del Convegno su Fatto e diritto nella storia moderna dell’ultimo grado del processo civile europeo, that took place in Rome on 22 December 2017, about to be published; as to the situation in France, see Halperin, La distinzione fatto-diritto nella evoluzione del sistema cassazionale (prima e dopo la nascita della Corte di cassazione in Francia), ivi. 152  As criticism on the “more probable than not” standard, see also Bianca, Il nesso causale: una “nozione oscura” in cerca di chiarezze, in Mélanges en l’honneur de F. Chabas, Brussels, 2011, 133 et seq., who, after having preliminarily clarified that the “notion of causal link serves to establish the prerequisites for the association between damage and a given fact; [whereas] the evidence of the causal link serves to ascertain whether or not those prerequisites exist”, points out that “the ascertainment of the causal link cannot be based on a mere probabilistic criterion that disregards the material causal efficiency of the fact. Actually, it is necessary to conclude that the mere possibility of occurrence of the event further to a given fact does not establish, with reasonable certainty, that the event occurred has been caused by that fact.” As regards the difficulties in managing situations of greater uncertainty of the causal contribution (or partial causal contribution) according to the “more probable than not” standard, see Capecchi, Il nesso di causalità, cit., 257 et seq., also for additional references. 153 Cf. Pucella, La causalità incerta, cit., passim. In case law, on the cases of uncertain 151 

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examined above) to rely on the “more probable than not” standard; rather, it is necessary to rely on case-law (if possible) or on the legislator, for the general issues of the burden of proof154 and of the principle of evidence proximity155 , or by means of the so-called “presumptions of causation”156 or, judicial presumptions tout court157 which also work in terms of the evidentiary burden; or on the socalled “legal causation”158 , or even on the same legal definition of the so-called material causation159, making the appropriate distinctions based on adequate principles, if necessary, depending on the specific areas of intervention;160 ; with the inevitable consequence that equal situations will have, at least basically, the same solutions and conclusions, also in point of (proof and) ascertainment of the facts that are material for the decision and of the material and legal causal link. casualty see, for example, Italian Court of Cassation, dec. no. 4024 of 20 February 2018; Italian Court of Cassation, dec. no. 26824 of 14 November 2017; Italian Court of Cassation, dec. no. 16655 of 6 July 2017. 154  Just think of the evolution of medical liability (for a summary of this evolution, prior to the recent reform with the so-called Gelli-Bianco act of 2017, see Gianti, L’accertamento del nesso di causalità nella responsabilità dei professionisti, in AA. VV., Causazione e giustificazione del danno, cit., 181 et seq.). About the risks of this activity, especially if carried out by case law and not by the legislator, see, however, the acceptable comments by Patti, Prima lezione. La “costruzione” del fatto nel processo, 40 et seq., esp. 42/-43. See also Id., Prove, cit., 254–255, on the importance of the distinction between the hypotheses in which the inclusion of the case in a given “sector” merely involves a different allocation of the burden of proof, from those hypotheses in which a sort of “appearance” of liability also emerges, which affects the degree of conviction considered to be necessary to declare liability (see, to this subject, the recent decision issued by the Italian Court of Cassation on 5 July 2017, no.  16503, where, in the grounds for the decision, the standard of specific proof lying with the damaged party is graded – save for the objection by the adverse party or the burden of the claimant who intends to rely on facts even more favourable to him or her – in view of the assumed higher or lower frequency, according to the id quod plerumque accidit, of the harmful consequence to be proved). 155  Italian Court of Cassation, dec. no.  18856 of 28 July 2017. 156  As in the case of occupational diseases: see Italian Court of Cassation’s decision no.  9778 of 23 April 2013. 157  See recently also for other references, Gamba, Presunzioni, cit., §  3, as well as Verde, L’onere della prova nel processo civile, cit., 135 et seq. 158  Italian Court of Cassation, dec. no.  15991 of 21 July 2011. 159 Cf. Bianca, Il nesso causale: una “nozione oscura” in cerca di chiarezze, cit., 143: “If, however, the probabilistic criterion is understood – as it is actually – as a criterion based on the specific risk, as a factor of material aggravation of the danger of damage, it can be said that, in civil proceedings too, the declaration of liability presupposes the reasonable certainty of the existence of the causal link.” 160  Medical liability, liability of the lawyer and of the chartered accountant, employer liability for occupational diseases, liability for environmental damage, etc. (regarding some, distinct, areas of risk, see Gianti, L’accertamento del nesso di causalità nella responsabilità dei professionisti, cit., 175 et seq., 200 et seq.; AA.VV., Il nesso di causalità. Profili giuridici e scientifici, by Pucella and De Santis, cit., 113 et seq., 125 et seq., 139 et seq.). With regard to the possibile means adequate to ease the burden of proof of the claimant, where such ease is deemed appropriate, see Tassone, Responsabilità contrattuale e inversione della prova del nesso, in Danno e resp., 2018, 14 et seq.; id., Responsabilità contrattuale, prova del nesso, concause e “più probabile che non”, in Foro it., 2018, 562 et seq., esp. 566.

Common Law Attitude

The English Approach to the Standard of Proof in Civil Proceedings John Sorabji

I. Introduction The paper outlines the approach in English and Welsh (English) civil proceedings to the standard of proof.1 Civil proceedings include commercial and family proceedings. It first considers upon whom the burden of proof, i. e., the obligation to prove a fact in issue, lies. Having done so it considers the nature of the standard of proof. It does this first through a brief consideration of the standard as it applies in criminal proceedings. It then considers the standard as it applies in civil proceedings. It does so particularly due to the attempt at one time to develop either a discrete, intermediate, standard of proof in some civil proceedings that was closer to the criminal standard or a civil standard that operated according to a flexible standard. The supposed flexible standard being one that required greater cogency of evidence before a finding could be made on the general civil standard. Finally, it considers recent developments in disciplinary proceedings, which occur within the ambit of regulatory bodies rather than the civil courts and are heard before specialist tribunals. In such tribunals there has been a shift away from the criminal towards the civil standard.

II. The Burden of Proof First, the burden of proof i. e., “the duty which lies on one or other of the parties, either to establish a case or to establish the facts upon a particular issue.”2 This has two elements: the legal, or as it is sometimes known, persuasive, probative or ultimate, burden of proof; and, the evidential burden of proof.3 In the English adversarial system the court may only determine whether the two burdens have been met by an assessment of the evidence adduced by the parties.4 1  The United Kingdom has three distinct legal jurisdictions, each of which has its own courts, judges, legal profession and civil procedural code: England and Wales; Scotland; and Northern Ireland. This paper only deals with the position in England and Wales. 2  Phipson on Evidence (Thomson, 18th ed.) (hereafter Phipson) at 6.01. 3  For a discussion see Phipson (note  2), at 6.02. 4  Zuckerman, Zuckerman on Civil Procedure – Principles of Practice (Thomson, 2013) at 1015 ff.

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The court neither has a duty to find the truth independently of the evidence so adduced nor the ability or power to seek such evidence.5 As HHJ Matthew (sitting as a judge of the High Court) explained it in Ball & Ors v Ball & Ors “Where there is an issue in dispute between the parties in a civil case, such as this is, the law places the burden of proving the necessary facts upon one party or the other. As a general rule in English law, the person who asserts something has to prove it: Robins v National Trust Co Ltd [1927] AC 515, 520… There [is] another point that I should make about the way the English civil courts reach their decisions. This is that it is for the parties to find and put before the court the material which they think will best help the court and prove their case. The English courts do not investigate of their own motion. It may often be that other relevant material exists elsewhere. But the court does not go and look for it. In civil litigation, the court usually makes its decision only on the basis of the material put before it by the parties.”6

It is thus entirely in the parties’ hands whether sufficient evidence is adduced to satisfy the burdens. Even where the court is aware that probative evidence is available and has not been placed before the court by the parties, it has no jurisdiction to require that evidence to be put before it. Nor does it have the power to take account of that evidence of its own motion.7 In some circumstances this may this mean that the court must decide a case knowing or suspecting that there is evidence not before it which, if before it, would justify a different decision from the one it is making to be made.8 In order to reduce the possibility of 5  Air Canada v Secretary of State for Trade [1983] 2 AC 394 at 438–439; Sorabji, English Civil Justice after Woolf and Jackson, (Cambridge, 2014) at 137–141; Jolowicz, The Woolf Reforms, in Jolowicz, On Civil Procedure, (Cambridge, 2000) at 390–391. 6  [2017] EWHC 1750 (Ch) at [17] – [19]. 7  Air Canada & Others v Secretary of State for Trade & Others [1983] 2 AC 394; Official Solicitor v K [1965] AC 201 per Lord Devlin at 239 and 241: the judge is an arbiter who only judges evidence put before him. It is not for the judge to investigate on their own, to seek their own forms of information or evidence. It is the parties’ duty to place evidence before the court and it is their fault if they fail to do so. 8  A situation which the judge in GB v Stoke City Football Club Ltd [2015] EWHC 2862 (QB) at [141] was acutely aware of: “A civil trial is not a search for absolute truth, even when findings of fact are possible, but I am very conscious that the full truth has not been revealed by this trial. I have the uncomfortable feeling that neither the claimant nor the second defendant have given a fully accurate account and that both they and others may have been economical with the truth. There is both a legal and a moral difference between the telling of a lie in answer to a direct allegation and keeping silent when the correct allegation has not been made. Whilst I am unable to find the facts necessary for me to conclude that the claimant has proved that the alleged assaults on him happened or happened in the way he alleges or that ‘the glove’ was used in the manner he alleges, I am equally unable to find positively that they did not and it was not. I confess to a lurking suspicion (partly but not wholly arising from the evidence of both JE and PL) that some form of prank may lie at the root of this case. A prank that may have involved a glove but not the extra features of the hot rubbing gel or digital penetration. A prank which is now, honestly or otherwise, misremembered or exaggerated. A prank that caused no lasting harm and would and could not justify the extensive claim made in this case. A prank in a form that has not been alleged so that the second defendant and others have not been required to admit or deny it but can with a clear conscience deny that which has been

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this occurring and in order to facilitate the parties’ ability to secure and place evidence before the court, thus placing them in a position– depending on the evidence – to meet the burden of proof English civil procedure provides them with considerable means to secure such evidence through, for instance, compulsory documentary disclosure, civil search orders and party-appointment of expert witnesses.9 In civil proceedings, the starting point is that the “legal burden of proof will generally lie on the party asserting the affirmative of [an] issue.”10 As explained in Phipson on Evidence (Phipson), this is “the obligation imposed on a party by a rule of law to prove (or disprove) a fact in issue to the requisite standard of proof.”11 In other words, in an action for breach of contract, it will be for the claimant to prove that there was, for instance, a contract, a breach, and damages. Equally, where a defendant raises in its defence an allegation, for instance, of fraud or contributory negligence by the claimant, the legal burden will lie upon it and not the claimant. Having made the allegation, the burden lies on the defendant to prove it. The claimant is not required to prove the negative i. e., that it did not act fraudulently or was not contributorily negligent. Failure to satisfy the legal burden by the party on whom it lies will result in them losing on that issue, which consequently may mean their claim or defence fails.12 As Lord Halsbury LC put it in Wakelin v L & S W Railway, “… it is incumbent upon the plaintiff in this case to establish by proof that her husband’s death has been caused by some negligence of the defendants, some negligent act, or some negligent omission, to which the injury complained of in this case, the death of the husband, is attributable. That is the fact to be proved. If that fact is not proved the plaintiff fails, and if in the absence of direct proof the circumstances which are established are equally consistent with the allegation of the plaintiff as with the denial of the defendants, the plaintiff fails, for the very simple reason that the plaintiff is bound to establish the affirmative of the proposition …”13

Lord Halsbury LC’s statement highlights a further important point. Where the legal burden lies upon a party, and the court is unable to make a finding of fact alleged. This suspicion amounts to no more than speculation (if that). Suspicion and speculation are no substitutes for evidence and no basis for findings of fact.” 9  See, for instance, Civil Procedure Rules (1998) Pts 25, 31, 35 http://www.justice.gov.uk/ courts/procedure-rules/civil/rules#part31. 10  Keane & McKeown, The Modern Law of Evidence, (OUP, 2016) at 106; Phipson (note  2), at 6.07ff; Robins v National trust Co [1927] AC 515, 520 11  Phipson (note  2), at 6.02. 12  Ibid, and for further examples see 6.08. And see, [2017] EWHC 1750 (Ch) at [18] “The significance of who bears the burden of proof in civil litigation is this. If the persons who bear the burden of proof of a particular matter (here the claimants) satisfy the court, after considering the material that has been placed before the court, that on the balance of probabilities that something happened, then, for the purposes of deciding the case, it did happen. But if those persons do not so satisfy the court, then (for these purposes) it did not happen.” 13  (1886) 12 App. Cas.  41 at 45.

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on the issue, the question whether the issue or claim must fail is to be determined by reference to the standard of proof. As Phipson summarises the point, “While a judge or tribunal of fact should make findings of fact if it can, in exceptional cases it may be forced to the conclusion that it cannot say that either version of events satisfies the balance of probabilities. In such a case the burden of proof may determine which party succeeds.”14

Phipson goes on to explain the rationale underpinning the nature of the legal burden as follows, “[The] rule is adopted principally because it is just that he who invokes the aid of the law should be the first to prove his case; and partly because, in the nature of things, a negative is more difficult to establish than an affirmative. The burden of proof is fixed at the beginning of the trial by the state of the pleadings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it, and never shifting. In deciding which party asserts the affirmative, regard must be had to the substance of the issue and not merely to its grammatical form; the latter the pleader can frequently vary at will … The true meaning of the rule is that where a given allegation, whether affirmative or negative, forms an essential part of a party’s case, the proof of such allegation rests on him. An alternative test, in this connection, is to strike out of the record the particular allegation in question, the onus lying upon the party who would fail if such a course were pursued.”15

As Phipson goes on to note, a “good example” of such an instance where the burden of proof was determinative is Cooke v Watermist Ltd [2014] EWHC 125 (Pat). In that case, in the light of an absence of documentary evidence and any credible witnesses, it was not possible to make any findings of fact. As such the claim was dismissed. The claimant having “failed to discharge the burden of proof.”16 It should not be thought, however, that resort to the burden of proof is a regular occurrence or one which a judge in English civil proceedings can readily rely upon. In Re B (Children) (Care Proceedings: Standard of Proof) Lady Hale explained that resort to the burden of proof to determine claims was something which a judge ought to think very carefully about. It was not something which was to be done either lightly or regularly. A judge who resorted to the burden of proof would face a serious risk of being criticised on any appeal from the decision. As she explained it, “In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come 14 

Phipson (note  2), at 6.07. Ibid at 6.06. 16  Ibid at 6.07. 15 

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to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge is able to make up his mind where the truth lies without needing to rely upon the burden of proof.”17

The basis, as Zuckerman notes, for requiring those on whom the burden lies, generally the claimant, to prove their case to the requisite standard is dictated by the need to provide a “tiebreak”. Finality of litigation requires proceedings to be brought to an end. If at the end of proceedings, the court could not, as in rare cases which even Lady Hale in Re B accepts exist, decide between the two parties’ evidence the situation cannot properly be left undetermined. A decision must be made. To determine the claim in such circumstances, the court must then find against the party upon whom the burden of proof lay as that party has failed to discharge its procedural obligation: it has not proved its case.18 Resort to the burden of proof may thus be an exceptional course of action, but it is one that is required by wider procedural principles.19 The legal burden is to be contrasted with the evidential burden. This refers to the duty on the party on whom the legal burden rests to adduce sufficient evidence to enable that issue to properly go before the tribunal of fact (whether that is a judge only or, in a rare case in civil proceedings, judge and jury20).21 Ordinarily the evidential burden will follow the legal burden i. e., the evidential burden will lie on the party upon whom the legal burden lies.22 17  [2008] UKHL 35, [2009] AC 11 at [32] (emphasis in bold added). As HHJ Stephen Davies has pointed out, there may be certain categories of case where reliance on the burden of proof may be more readily resorted to e. g., where adverse inferences can be drawn from a party’s failure to produce a witness to give evidence at trial: see HHJ Stephen Davies, Proof on the balance of probabilities: what this means in practice, (TeCSA/TECBAR Conference 22 October 2009) https://uk.practicallaw.thomsonreuters.com/2-500-6576?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1 and see Wisniewski v Central Manchester Health Authority [1998] Lloyd’s Rep 223. 18  Zuckerman (note  4), at 1020. 19  GB v Stoke City Football Club Ltd [2015] EWHC 2862 (QB) at [16] “The burden of proof is not, of course, the starting point but the end point of a case such as this because it is first necessary for the court, if it can, to find the facts. No judge likes to decide cases on the burden of proof if he or she can legitimately avoid having to do so. A judge should only resort to the burden of proof where he or she is unable to resolve an issue of fact or facts after having unsuccessfully attempted to do so by examination and evaluation of the evidence: see Verlander v Devon Waste Management Limited [2007] EWCA Civ 835 at [19]. Those cases where resort to the burden of proof is necessary to decide the case are sometimes described as being “exceptional”: see Verlander at [24] explaining the earlier case of Stephens v Cannon [2005] EWCA Civ 222.” GB v Stoke City Football Club was one of those exceptional cases where the claim failed on the basis of a failure to discharge the burden of proof. 20  See Senior Courts Act 1981, s.  69. 21  Phipson (note  2), at 6.02, “It obliges the party on whom the burden rests to adduce sufficient evidence for the issue to go before the tribunal of fact.” 22  Where the evidential burden lies may be affecting by the operation of legal or factual presumptions e. g., presumption of death, of survival, res ipsa loquitur etc.; see, Keane & McKeown (note  10), at 109 and 713 ff; Phipson (note  2), at 6.16 ff.

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III. The Standard of Proof Turning to the standard of proof itself, a contrast must be drawn between the criminal and civil standards of proof. 1. The Criminal Standard In criminal proceedings, the test applicable to determine whether the party upon whom the legal burden of proof lies is whether they have adduced sufficient evidence to persuade the tribunal of fact – in this case the jury23 – that they are sure that the defendant is guilty; in other words, that the prosecution has established guilt “beyond a reasonable doubt”; or again, that the jury has “no realistic doubts” as to guilt.24 The current standard jury direction e. g., instruction, by the judge to the jury concerning the criminal standard of proof is as follows, “The prosecution must prove that D is guilty. D does not have to prove anything to you. He does not have to prove that he is innocent. The prosecution will only succeed in proving that D is guilty if you have been made sure of his guilt. If, after considering all of the evidence, you are sure that D is guilty, your verdict must be ‘Guilty’. If you are not sure that he is guilty, or sure that he is innocent, your verdict must be ‘Not Guilty’. If reference has been made to ‘beyond reasonable doubt’ by any advocate, the following may be added: You have heard reference to the phrase ‘beyond reasonable doubt’. This means the same as being sure.”25

If elaboration of what is necessary for the jury to be sure or of what it means for there to be reasonable doubt, the judge may explain it in the following way, “A reasonable doubt is that quality or kind of doubt which when you are dealing with matters of importance in your own affairs you allow to influence you one way or another.”26 23  In the Crown Court. In a Magistrates’ court the tribunal of fact will be the District Judge (Magistrates’ Courts) or the three lay magistrates. 24 See Woolmington v DPP [1935] AC 462; Hunt [1987] AC 352; and, The Crown Court Compendium (Judicial College, May 2016) at 5.1 https://www.judiciary.gov.uk/wp-content/ uploads/2016/05/crown-court-compendium-part-i-jury-and-trial-management-and-summing-up.pdf. 25  The Crown Court Compendium at 5.2. For a discussion see F. Picinali, The threshold lies in the method: instructing jurors about reasoning beyond a reasonable doubt, I. J. E & P (2015) 19(3) 1329 26  Walters v R [1969] 2 AC 26. For a discussion see Phipson at 6.50ff and Keane & McKeown, at 112 ff. For Lord Denning’s classic explanation see, Miller v Minister of Pensions [1947] 2 All E.R. 372 at 373–374, “[Proof] need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but

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Any such elaboration is however generally discouraged.27 By way of example of the type of certainty that is required for there to be reasonable doubt, the courts have held that it is acceptable for a judge in elaborating what it means to draw an analogy between the degree of certainty that an individual would need to enter into a business deal or mortgage over their house and that needed to convict.28 Common sense examples can thus be given in those rare occasions that elaboration is permissible. In terms of the evidential burden of proof, where it lies on the prosecution, it requires the prosecution to adduce sufficient evidence to be adduced such that “if believed and left uncontradicted and unexplained, [it] could be accepted by the jury as proof”29. Where, however the evidential (but not also the legal) burden lies on the defendant i. e., where a plea of self-defence is raised, evidence sufficient to “leave a jury in reasonable doubt”30 is required. Where the legal and evidential burden lies on the defendant in criminal proceedings e. g., the need to prove insanity, the standard of proof is the civil standard.31 2. The Civil Standard In civil proceedings, the position is different. In terms of both the legal and evidential burden of proof, the same test applies: the party upon whom the burden lies must satisfy the court in respect of the specific issue or claim on the balance of probabilities. As Lord Nicholls described it in Re H & Ors (minors), “The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not.”32

The nature of certainty needed to satisfy this test had previously been elaborated by Lord Denning, in Miller v Minister of Pensions, in the following terms, “It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal it is not.”33 not in the least probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” 27  R v Ching (1976) 63 Cr App Rep 7. 28  R v Ching (1976) 63 Cr App Rep 7; and also see Walters v R [1969] 2 AC 26 at 30, and the discussion at Phipson at 6.51. 29  Jayasena v R [1970] AC 618. 30  Bratty v A-G for Northern Ireland [1963] AC 386. 31  Keane & McKeown (note  10), at 114–115, 121; R v Carr-Briant [1943] KB 607. The standard jury direction in such a situation is, “When you are considering [specify] this is for D to prove. He has to show that it is more likely than not that [specify]. He does not have to make you sure of it.”, see The Crown Court Compendium at 5.2. 32  [1996] AC 563 at [73]. 33  [1947] 2 ALL ER 372 at 374.

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In assessing the balance of probabilities, whilst it is commonplace to refer to the court having to be satisfied to a degree greater than 50 %. That shorthand is not however the test. The court in assessing the balances of probabilities is not carry­ing out an examination in statistics, nor is it carrying out an exercise in Bayesian probability. As Toulson LJ explained it, “[35]  The civil ‘balance of probability’ test means no less and no more than that the court must be satisfied on rational and objective grounds that the case for believing that the suggested means of causation occurred is stronger than the case for not so believing. In the USA the usual formulation of this standard is a ‘preponderance of the evidence’. In the British Commonwealth the generally favoured term is a ‘balance of probability’. They mean the same. Sometimes the ‘balance of probability’ standard is expressed mathematically as ‘50 + % probability’, but this can carry with it a danger of pseudo-mathematics, as the argument in this case demonstrated. When judging whether a case for believing that an event was caused in a particular way is stronger that the case for not so believing, the process is not scientific (although it may obviously include evaluation of scientific evidence) and to express the probability of some event having happened in percentage terms is illusory. [36] Mr Rigney submitted that balance of probability means a probability greater than 50 %. If there is a closed list of possibilities, and if one possibility is more likely than the other, by definition that has a greater probability than 50 %. If there is a closed list of more than two possibilities, the court should ascribe a probability factor to them individually in order to determine whether one had a probability figure greater than 50 %. [37]  I would reject that approach. It is not only over-formulaic but it is intrinsically unsound. The chances of something happening in the future may be expressed in terms of percentage. Epidemiological evidence may enable doctors to say that on average smokers increase their risk of lung cancer by X%. But you cannot properly say that there is a 25 per cent chance that something has happened: Hotson v East Berkshire Health Authority [1987] AC 750. Either it has or it has not. In deciding a question of past fact the court will, of course, give the answer which it believes is more likely to be (more probably) the right answer than the wrong answer, but it arrives at its conclusion by considering on an overall assessment of the evidence (i. e. on a preponderance of the evidence) whether the case for believing that the suggested event happened is more compelling than the case for not reaching that belief (which is not necessarily the same as believing positively that it did not happen).”34

3. Exceptions to the civil standard A number of exceptions to the civil standard apply within civil proceedings. The exceptions either arise under statutory provisions, rules of court, or through case law. Examples of each are:35 – under s.  123(4) of the Sexual Offences Act 2003, the criminal standard of proof applies, where an application for a “risk of sexual harm order” is sought; 34  Nulty & Ors v Milton Keynes Borough Council [2013] EWCA Civ 15, [2013] 1 WLR 1183 at [35]–[37]; as followed in A (Children) [2018] EWCA Civ 1718. 35  The examples are drawn from Keane (note  10), at 115.

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– where summary judgment is sought by either a claimant or defendant, the applicant is required by CPR r.24.2 to show that either the defence or claim, respectively, has “no real prospects of success” or that there is no “other compelling reason” why the claim should continue to trial; – where an application to approve medical treatment of an individual who is not mentally competent to take such a decision, it is necessary to demonstrate to a “convincing” standard that the suggested treatment is itself necessary;36 or – proceedings for civil contempt of court apply the criminal standard. The ­basis for the difference here being that a finding of civil contempt may result in imprisonment.37 4. A General Intermediate Civil Standard of Proof? In addition to these specific exceptions to the generally applicable civil standard, it was for some considerable time suggested that a generally applicable alternative civil standard of proof existed.38 This was known as the intermediate civil standard; intermediate because it lay between the balance of probabilities and beyond reasonable doubt standards. As Zuckerman has explained it, “It is believed by some that the civil standard should be higher when allegations of criminal conduct are made. It is said that allegations of fraud or other serious misconduct should be proved to a higher standard than a mere balance of probabilities.”39

The attempt to devise a higher standard of proof in civil proceedings for matters where issues that can be viewed as analogous to criminal matters is, on one level, entirely understandable. An allegation of fraud is an allegation of fraud whether that arises within a criminal prosecution or a civil action. This super­ ficial analogy fails however to take account of differences between criminal and civil proceedings, which justify the existence of a lower standard in the latter. It fails to take account of, for instance the need to strike a fair balance between the procedural burdens and obligations placed on parties within the civil trial process which arises from the principle of equality of arms. As Zuckerman puts it, “[The civil standard] is dictated by considerations of justice. Given that all are equal before the law, there is normally no justification for discriminating between opposing litigants and imposing on one a substantially higher risk of error than on the other. … Any deviation from an even distribution of the risk of error will amount to treating litigants unequally and must therefore be justified.”40

36  R (N) v Cr M [2003] 1 WLR 562. For other examples of specific exceptions see: Keane (note  10), at 119–121. 37  Re Bramblevale Ltd [1970] Ch. 128. 38  For a discussion see, B (Children) [2008] UKHL 35, [2009] 1 AC 11 at [5]–[15]. 39  Zuckerman (note  4), at 1020. 40  Ibid at 1050.

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In criminal proceedings, the higher standard can be seen to be justified because of the structural imbalance that exists between the State as prosecutor and individual defendants. This calls for specific protection of the latter to redress that balance. One of the means to achieve that is the higher criminal standard. Such structural imbalances of power do not exist in civil proceedings. Thus, this justification for departing from equality of arms is lacking. Secondly, in criminal proceedings there is a specific need to ensure that prosecutorial bodies carry out their role to the highest of standards to further the public interest in the rule of law. Lowering the threshold may result in their carrying out their duties to a lower standard, on the basis that securing prosecutions is more straightforward than it would otherwise be if the threshold were a lower one. Linked to this, a lower threshold in criminal proceedings increases the prospect of decisional-error and thus false convictions contrary to the public interest. In civil proceedings neither of these considerations is relevant, as: first, the civil courts are not under a specific duty to reach the correct answer, unlike the criminal courts which are required to convict the guilty and acquit the innocent41; and, secondly, the consequences of mis-decision for the rule of law and confidence in the justice system are not as serious as those which occur when the innocent are wrongly convicted and the guilty thereby remain at large. Again, a justification for departing from equality of arms is lacking. Finally, in criminal proceedings the potential adverse consequences for defendants far outweigh those that, in general, may be visited on litigants in civil proceedings i. e., the loss of liberty inherent in imprisonment following criminal conviction. This too justifies, and requires, the imposition of a higher standard of proof than is generally justifiable in civil proceedings where the consequences are not generally as serious or far-reaching. In addition to equality of arms based reasons which point away from a higher civil standard, its introduction would also pose an evidential problem in civil proceedings. It increases the possibility of decisional-error as it increases the prospect that a party that has to meet the higher standard will not discharge the burden of proof. The more serious the allegation the greater the prospect of error. This is, as Zuckerman notes, perverse. In criminal proceedings, where the State has significant resources at its disposal via, for instance, the police force, forensic scientists, crown prosecutors such error arising from its inability to secure evidence cannot but be much less than is the case for parties of equal resources in civil proceedings, for parties which do not have the resources of the State behind them or available to them.42 To introduce a test which makes it more difficult for a party to prove their case where they do not, unlike the State, 41 

See Criminal Procedure Rules r.1. For a detailed discussion of the alleged higher civil standard, see Redmayne, Standards of Proof in Civil Litigation, 62 Mod. L. Rev. 167 1999; McBride, Is the civil “higher standard of proof” a coherent concept?, 8 Law Prob. & Risk 323 2009. 42 

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have access to the wide resources of the State, at the least appears difficult to justify. Taking these various points together is not to say that a higher standard in civil proceedings is entirely impermissible. Where proceedings are more akin to criminal proceedings i. e., they involve a prosecutorial body as one party with either the State’s resources, or such resources as to produce an equivalent structural imbalance of power between claimant and defendant, and the outcome of a successful action is akin to criminal proceedings i. e., loss of liberty, then a higher standard is arguably justifiable. That however is already well-established in, for instance, contempt of court proceedings. In such proceedings, the higher standard is the criminal standard. Given the extant applicability of the established criminal standard in specified civil proceedings, it raises the question why a confused and confusing attempt to devise an intermediate civil standard was attempted. A principled approach by the courts to the development of the standard of proof in civil proceedings ought arguably to have led to the identification of those types of proceedings which were properly analogous to criminal proceedings in their nature and consequence and the application of the criminal standard of proof in them. That would be a principled approach. It is perhaps one that would been more appropriate for a legislature than a court developing the law on a piecemeal basis, not least – as McBride rightly notes – it involves consideration of policy questions more suitable for legislatures.43 Whatever the merits or otherwise of the courts introducing an intermediate standard, its has however now been authoritatively rejected by the House of Lords and, its statutory successor, the United Kingdom Supreme Court on a number of occasions.44 As Lord Hoffmann put in, for instance, Secretary of the Home Department v Rehman (2001), “The civil standard of proof always means more likely than not. The only higher degree of probability required by the law is the criminal standard.”45

This position was revisited and reaffirmed by the House of Lords in Re B (Children) (Care Proceedings: Standard of Proof) (2008)46 and by the UK Supreme Court in Re J (Children) (2013)47. The only circumstance where a court in civil proceedings may use an alternative standard of proof to the civil standard is that which arises when, due to the nature of the claim or issue, the application of the criminal standard is appropriate e. g., where contempt of court is in issue. Again, as Lord Hoffmann put it,

43 

McBride (note  42), at 348. See, for instance In re H (minors) (Sexual abuse: standard of proof) [1996] AC 563. 45  [2001] UKHL 47, [2003] 1 AC 153 at [55]. 46  [2008] UKHL 35, [2009] AC 11. 47  [2013] UKSC 9, [2013] 1 AC 680 at [35]-[36]. 44 

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“… the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not. I do not intend to disapprove any of the cases in what I have called the first category, but I agree with the observation of Lord Steyn in McCann’s case (at 812) that clarity would be greatly enhanced if the courts said simply that although the proceedings were civil, the nature of the particular issue involved made it appropriate to apply the criminal standard.”48

The question of a higher standard of proof has not been the only such issue to arise. Related to it, a further question has troubled the courts, and which arose from the debate concerning the existence of the higher, intermediate, civil standard of proof. Dicta, particular from Lord Nicholls in Re H, suggested that while there was no intermediate standard of proof, a higher evidential threshold did however exist, and was justified, where there were allegations in civil proceedings that equated to criminality.49 The higher threshold operated so that the more serious the allegation, the more cogent the evidence had to be to meet the ordinary civil standard. In other words, while the standard remained the or­ dinary civil standard of the balance of probabilities, greater and more cogent evidence was needed to satisfy it where, for instance, there were allegations of fraud. Academic commentary has questioned whether this is a conceptually coherent concept.50 At best it looks like an intellectual sleight of hand, which ostensibly rejects, in principle, a higher standard of proof while, in practice, introducing one. It appears difficult to draw a genuine distinction between a higher threshold and a higher standard; they both require the court to be satisfied of the same thing: more cogent evidence to support a finding of fact than is necessary to meet the ordinary civil standard. And the more cogent evidence, whether applied as a higher evidentiary threshold test or as a replacement for the civil standard is, or is close to, the criminal standard of proof. If close to the criminal standard as a threshold test, it further gives rise to a problem of clarity for the party on whom the burden lies i. e., if the threshold test is one that requires more cogent proof the more serious the allegation, to what extent can the party on whom the burden lies fully understand the level and nature of proof required before proceedings are brought and whilst they are ongoing? While in some cases this will be clear from previous decisions, it will not be clear in all cases. And moreover, in the circumstances of any particular case the possibility of argument arises concerning the exact calibration of the seriousness of the allegation. A sliding scale threshold is one that does not seem to meet a requirement that the law is clear and predictable. It was a proposal that seems to raise more questions than it might be thought to solve. 48 

[2008] UKHL 35, [2009] AC 11 at [13]. [1996] AC 563 at 586; McBride (note  42), at 326 ff. 50  Redmayne (note  42); McBride (note  42). 49 

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The contention that a higher evidential threshold is required to discharge the ordinary civil standard of proof has also now, however, been definitively rejected. As Lady Hale put it in Re B “… I would … announce loud and clear that the standard of proof in finding the facts necessary to establish … is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.”51

The position as the House of Lords and UK Supreme Court have now left it was recently and helpfully summarised by Eder J in Otkritie International Investments Management Ltd v Urumov (2014) as follows, “… In a series of decisions of the House of Lords and the Supreme Court …, it has been firmly established that: i) First, there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not: Re B at para  13 per Lord Hoffmann. ii) Second, the proposition that “the more serious the allegation, the more cogent the evidence needed to prove it’ is wrong in law and must be rejected: Re S-B at §  13 per Baroness Hale; Re J [2013] 1 AC 680 at para  35 per Baroness Hale. iii) T hird, while inherent probabilities are relevant in considering whether it was more likely than not that an event had taken place, there is no necessary connection between seriousness and inherent probability: Re S-B at para  12 citing Lord Hoffmann in Re B at para  15: “There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely. If, for example, it is clear that a child was assaulted by one or other of two people, it would make no sense to start one’s reasoning by saying that assaulting children is a serious matter and therefore neither of them is likely to have done so. The fact is that one of them did and the question for the tribunal is simply whether it is more probable that one rather than the other was the perpetrator.’ See also: Re B at para  72 per Baroness Hale; Re J at paras 14–17 per Baroness Hale; ­Jafari-Fini v Skillglass Ltd [2007] EWCA Civ 261 at para  40 per Carnwath LJ, as interpreted in Do-Buy 925 Ltd v National Westminster Bank Plc [2010] EWHC 2862 (QB) at

51  Re B (children) [2008] UKHL 35, [2009] 1 AC 11 at [70], following a discussion from [64]-[70] of the flawed approach which gave rise to the misconception that greater proof was required.

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para  49 per Andrew Popplewell QC, sitting as a Deputy Judge of the High Court; ­Donegal v Zambia [2007] EWHC 197 (Comm) at para  276 per Andrew Smith J.”52

5. Assessing evidence to determine whether the civil standard has been met Irrespective of the threshold, whether the general civil standard or one of the subject-specific statutory exceptions, the court’s approach to the assessment of evidence in order to determine whether the standard has been made is the same. The approach has recently been summarised cogently by Green J in ASK v The Secretary of State for the Home Department [2017] EWHC 196 (Admin) at [70]–[79]. He identified the following principles applicable to the assessment of evidence in order to determine whether the standard had been met by the party on whom the burden of proof lies. Those principles are: – first, the court must ensure that it views the evidence as a whole, avoiding making snapshot conclusions.53 The court must therefore consider all the evi­ dence as it relates to the particular contentious factual issue; 52  Otkritie International Investments Management Ltd v Urumov [2014] EWHC 191 (Comm) at [88] and see [84]–[91], and see, Group Seven Ltd & Anor v Nasir & Ors [2017] EWHC 2466 at [48]–[50], “48.  It is of critical importance in this case for me to assess the credibility, and the honesty, of Mr Landman, Mr Meduri and Mr Louanjli. Group Seven alleged that Mr Landman, Mr Meduri and Mr Louanjli were dishonest. Mr Louanjli and LLB joined with Group Seven in contending that Mr Landman and Mr Meduri were dishonest. The Notable Defendants joined with Group Seven in contending that Mr Louanjli was dishonest. It was also submitted that Mr Landman, Mr Meduri and Mr Louanjli lied in their evidence to the court. [49]  The allegations against Mr Landman, Mr Meduri and Mr Louanjli are serious. The fact that the allegations are serious led some of the Defendants to submit that the more serious the allegation the more cogent must be the evidence relied upon. Counsel for Mr Louanjli also submitted that because the consequences for Mr Louanjli of a finding of dishonesty would be very grave, the stronger must be the evidence before a court could hold that the allegation had been proved. These submissions were said to be based on the speech of Lord Nicholls in Re H (minors) [1996] AC 563, in particular at 586. However, that passage in the speech of Lord Nicholls has been discussed on a number of later occasions where it has been pointed out that it has been misunderstood: see Re B (Children) [2009] AC 11 at [5]-[15] and at [62]-[73], Re S-B (Children) [2010] 1 AC 678 at [10]-[13] and Re J (Children) [2013] 1 AC 680 at [35]-[36]. It is clear from those decisions that the nostrum ‘the more serious the allegation, the more cogent the evidence needed to prove it’ is wrong: see Re B (Children) at [64] per Lady Hale of Richmond. These authorities were reviewed in Otkritie International Investments Management Ltd v Urumov [2014] EWHC 191 (Comm) at [84]-[91] and see also I T Human Resources plc v Land [2016] FSR 10 at [113]. [50]  The correct position in relation to the standard of proof is as follows. The standard of proof is the civil standard, that is the allegations require to be proved on the balance of probabilities. It must be proved that the fact which is in issue more probably occurred than it did not occur. While it is obviously right to consider the inherent probability, or the inherent improbability, of an event in considering whether it has been proved on the balance of probabilities, there is no necessary connection between seriousness and inherent improbability.” 53  A point also emphasised by Jackson J in BR (Proof of Facts) [2015] EWFC 41 at [8], “Each piece of evidence must be considered in the context of the whole.”

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– secondly, where considering documentary evidence such as expert or medical reports, the court must ensure that it does not assume that conclusions expressed in the reports are correct. Care should be taken to ensure that the court attributes the proper “weight to a view, opinion or conclusion from those competent to express that view, opinion or conclusion”. To do otherwise would be to, impermissible, delegate the fact-finding function to the expert54; – thirdly, and again when assessing documentary evidence such as expert or medical reports, and where that report “is based upon documents (such as records) which are not before the court then the Court needs to exercise care and to be aware that the report is a second-hand account and may not be complete or accurate.” Again, this emphasises the need for the court to consider evidence carefully and not make snap judgments; – fourthly, the court must avoid “reading documents as if they were legal texts”; – fifthly, courts must take care when “piecing together the chronology” of the matters before them to bear in mind that it “is of the nature of litigation [that it is] conducted with the benefit of hindsight [such] that lawyers excavate into lacuna and interstices in and between the evidence before the Court. Small gaps may be portrayed with forensic skill as gaping holes … [there is thus a] need for careful consideration of the entire chronology but also the need not to assume that every omission is a culpable one.”; – sixthly, courts must ensure that they adopt a practical analysis of the evidence, which avoids imposing an “artificial high standard” upon evidence i. e., gaps in the evidence are not necessarily dispositive, but may be innocuous or explicable by reference to other matters before the court. In other words, the court must consider the evidence as a whole; – seventhly, when assessing witness evidence the court must take care to remember that it is prepared after the fact and with the benefit of hindsight. Written witness evidence must be “must be read in conjunction with the actual underlying documents so that the accuracy of what might be a summary in the statement is viewed in context.” Furthermore, “there is no reason why a Court should reject an explanation or evidence said accurately to reflect the position at the time (and not therefore the progeny of convenient hindsight) simply because it supplements the documentary record. A court will simply weigh that evidence along with other material and attribute weight according to its due probative value.”; and – finally, in assessing evidence the court should be mindful of being “wise in hindsight”, particularly where expert evidence is concerned. Having carried out its assessment of the evidence on the particular issue, the court must then, unless it is one of the exceptional cases when it must fall back 54 

Armstrong v First York [2005] EWCA 227 at [28].

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on the burden of proof, determine whether the party on whom the burden lies has met the standard of proof. If it has, then the fact is established. If not, it is not. As Lord Hoffmann put it in Re B (Children) (Care Proceedings: Standard of Proof) (2008), based on the evidence the court must determine a binary question: did the fact in issue occur or did not it?55 This question is required to be answered for any such contentious issue in the proceedings. If the issue is decided against the party on whom the burden lies, the party fails on that issue. If it is an essential element of their claim i. e., if it relates to breach of contract and the claimant fails to prove breach, the claim will fail. If there are a number of such issues, then the party asserting will be at risk of their claim failing on each and any of those issues. A party could establish to the requisite standard four out of five contentious issues, and see the whole claim fail if it does not satisfy the court on the fifth issue. Determination of a number of contentious issues does not however lead to the court aggregating each of the issues together to determine whether, having found that the balance of probabilities has been met on each of them, to then determine whether the claim overall has been satisfied to the ­balance of probabilities.

IV. Current issues Finally, having outlined the English approach to the standard of proof in civil proceedings, the question arises whether there are any specific issues of current controversy. In this respect it is necessary to look beyond ordinary civil proceedings and turn to the standard of proof before regulatory and disciplinary tribunals for professional bodies, and particularly for those which concern the regulation and discipline of the legal profession. In this area, as Phipson rightly notes, it has been for some time, and continues to be, a matter of debate whether the criminal or civil standard of proof should apply. As it notes, this question has historically been resolved by the regulatory or disciplinary tribunals procedural rules.56 55  [2008] UKHL 35, [2009] AC 11 at [2], “If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.” 56  Phipson (note  2) at 6.57 at fn 284, “The cases are R. v Hampshire CC, Ex p. Ellerton [1985] 1 W.L.R. 749 (flexible civil for fire brigade); Saeed v ILEA [1985] I.C.R. 637, Popplewell J. (civil standard for disciplinary proceedings against school caretaker accused of assaulting a child); R (VG) v Board of Governors of Tom Hood School [2010] EWCA Civ 142; [2010] P.T.S.R. 1462 (civil standard for school exclusions); Les Croupiers Casino Club v Pattinson

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Where solicitors are concerned the appropriate standard of proof has always been the common law criminal standard of proof.57 The rationale underpinning this approach was recently restated by Foskett J in Fish v The General Medical Council [2012] EWHC 1269 (Admin), albeit that decision concerned disciplinary proceedings brought against a doctor. He explained it as follows, “An allegation of dishonesty against a professional person is one of the allegations that he or she fears most. It is often easily made, sometimes not easily defended and, if it sticks, can be career-threatening or even career-ending. Who would want to employ or otherwise deal with someone against whom a finding of dishonesty in a professional context has been made? I am, of course, dealing with the issue of dishonesty in a professional person simply because that is the issue before me. It is, however, a finding that no-one, whatever their walk in life, wishes to have recorded against his or her name.”58

There has, however, been in recent years some considerable discussion over whether the approach taken by the Solicitors Disciplinary Tribunal (the SDT), the body responsible for adjudicating matters concerning alleged misconduct by solicitors, ought to replace the criminal standard with the civil standard of proof. In doing so it would follow a general trend amongst other professional regulators. This discussion has, in the main,59 been advocated by the Solicitors Regulation Authority (SRA), the regulatory body for solicitors. In addition to being the regulator it is also responsible for investigating allegations of misconduct, for itself determining and sanctioning lower levels of misconduct (to which it applies the civil standard), and for bringing and prosecuting allegations of serious misconduct before the SDT. In other words, the prosecutor wishes to ensure the standard of evidence is to become one more favourable to it than the present test. 60 1987 60 T.C. 196; R. v Maidstone Crown Court, Ex p. Olson, The Times, May 21, 1992; A Solicitor, Re [1993] Q.B. 69; Law Society v Waddingham [2012] EWHC 1519 (Admin.) (criminal standard for solicitors and bar); Odes v General Medical Council [2010] EWHC 552 (Admin.) (civil standard for doctors). The Financial Services and Markets Tribunal applies the normal civil standard of proof Legal & General v FSA, January 13, 2005, at [19] (following earlier tribunal case of Hoodless and Blackwell v FSA).” 57  Re A Solicitor [1993] QB 69; Campbell v Hamlet [2005] 3 All ER 1116 (PC). 58  [2012] EWHC 1269 (Admin) at [68]. 59  Although see Leveson P and Leggatt J, in The Solicitors Regulation Authority (SRA) v Solicitors Disciplinary Tribunal [2016] EWHC 2862 at [48]–[49] and [72]. 60  Yves-Gilg, Civil standard of proof in solicitors tribunal a mere “Christmas list”, Solicitors Journal (22 December 2016), “SRA procedure rules provide for the application of the civil standard in regulatory proceedings, but no such rule exists in relation to tribunal proceedings, where the accepted approach has been to apply the criminal standard. The regulator has long suggested that the civil standard should apply to tribunal proceedings too. Last month the chief executive, Paul Philip, said he was confident that there was now a broad consensus in favour of the move and that the SRA was ‘pushing an open door”. Responding to the comment, the tribunal clerk and chief executive, Susan Humble, said there had been no conversation between the SRA and the tribunal over the matter. Humble added that the SDT had the question of standard of proof ‘very much in mind’ but that, at this stage, Philip was ‘may-

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In October 2017 the debate on the SDT’s standard of proof resulted in the Law Society, the solicitors’ representative body and the body ultimately responsible for the Solicitors Regulation Authority, issuing a consultation on the question of whether the SDT should change the standard of proof to the civil standard. 61 The Bar Standards Board (BSB), which regulates barristers, also issued its own consultation concerning the same question in respect of the Bar. Unsurprisingly, in its response to the BSB consultation, the SRA expressed its belief that the standard for all lawyers should be the civil standard. 62 In addition to the regulators’ consultations, the SDT itself issued its own consultation seeking views on whether the standard of proof in proceedings before it should: first, be specified within its rules rather than the (as at present) common law63; and, secondly, if, rule-based standard whether the appropriate standard was the civil or the criminal one. 64 In November 2017, the BSB announced that following its consultation, the standard of proof in disciplinary proceedings brought against barristers would no longer be the criminal standard: it would move to the civil standard. 65 At the time of writing, in February 2018, a decision concerning the SDT and solicitors disciplinary proceedings had not been taken. A number of rationales can, and have been put forward to justify moving towards the civil standard of proof. Disciplinary proceedings do not, unlike criminal proceedings, lead to imprisonment upon a finding of, for instance, dishonbe expressing his Christmas list’.” https://www.solicitorsjournal.com/news/201612/civil-standard-proof-solicitors-tribunal-mere-‘christmas-list’; J. Hyde, SRA wants lower standard of proof, Law Gazette (20 January 2016) https://www.lawgazette.co.uk/law/sra-wantslower-standard-of-proof-for-tribunal-prosecutions/5053131.article. 61  The Law Society, The standard of proof applied by the Solicitors Disciplinary Tribunal, (16 October 2017) http://www.lawsociety.org.uk/news/stories/standard-of-proof-appliedby-the-sdt-your-views-needed/. 62 Solicitors Regulation Authority, SRA response to BSB consultation on standard of proof, at [5], “We have, since 2010, consistently called upon the SDT to move to the civil standard of proof so that the public interest can be better served. This is particularly important as the SDT has the powers to suspend or strike off a solicitor when they present significant risks to the public or the administration of justice.”, and [16], “The civil standard of proof is the most appropriate standard to use for professional disciplinary hearings.” https://www. sra.org.uk/sra/consultations/consultation-responses/bsb-response.page#; see Bar Standards Board, Review of the Standard of Proof Applied in Professional Misconduct Proceedings, (May 2017) https://www.barstandardsboard.org.uk/media/1830289/sop_consultation_paper.pdf. 63  Re a Solicitor [1993] QB 69; Campbell v Hamlet [2005] UKPC 19. 64  Solicitors Disciplinary Tribunal, Response to Bar Standards Board consultation, (July 2017) “The Tribunal will itself, as part of the exercise of bringing forward its proposed new rules, be consulting on the appropriate standard of proof to apply.” http://www.solicitorstri bunal.org.uk/sites/default/files-sdt/SDT%20Response%20-%20BSB%20Consultation%20 20.07.17.pdf. 65  Bar Standards Board, Civil standard of proof set to be adopted for professional misconduct proceedings for barristers, (24 November 2017) https://www.barstandardsboard.org.uk/ media-centre/press-releases-and-news/civil-standard-of-proof-set-to-be-adopted-for-professional-misconduct-proceedings-for-barristers/.

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esty on the part of a lawyer. The most stringent penalty that the disciplinary process can impose is removal of the right to practice as a lawyer i. e., removal from the solicitors’ roll or dis-barring and/or an unlimited financial penalty. This might suggest that the civil standard may be more appropriate as the potential consequences of an adverse finding are more akin to those applicable to civil proceedings. Although, it should be noted that in this respect, the Law Society quite properly noted that such disciplinary penalties are in themselves of very serious consequential effect and should not be under-estimated; a point also emphasised by Redmayne in his consideration of the circumstances when the ordinary civil standard may be inappropriate.66 Additionally, the SRA has put forward three arguments in favour of moving to the civil standard “a) It would make it easier and cheaper for the SRA to prosecute cases; b) Client protection – there is a perception that the criminal standard protects solicitors rather than clients; and c) Most other sectors use this approach.”67

The three positive reasons put forward by the prosecuting body are dubious at best. The first reason rests on convenience. A lower standard would be a more convenient one for the prosecutor. Assuming that the prosecutor is encountering procedural difficulties in prosecuting claims that ought perhaps suggest reforms to the procedural rules need to be considered; reforms that would make the process easier and simpler for both prosecutor and prosecuted. An approach, as suggested, that simply makes it easier for the prosecutor to prosecute or rather to secure conviction is perhaps not one – in the absence of evidence of which none has been put forward – of prosecutions failing do the complexity of the process engendered by the standard of proof, that is all-together attractive. On the contrary, it looks self-serving. And equally, it may suggest that the prosecutor ought to improve its approach to evidence-gathering and to how it carries out prosecutions rather than lower the standard to enable it to successfully prosecute cases even if it does so to a poor standard, if that is the case. At best this issue calls for an examination of why the SRA may find it difficult to successfully prosecute cases. Furthermore, it calls for greater consideration of the fact that the SRA as prosecutor has similar structural advantages over individual solicitors, akin to those the State has over defendants in criminal proceedings. A lower standard may make it easier to prosecute, but it stands in 66  The Law Society ibid at 2.3; Redmayne ibid at 188 commenting on the importance of the coercive power of the State and on the nature of the consequences of a criminal trial as being significant factors in considering whether a standard of proof other than the ordinary civil standard should apply. Given the arguable comparison between a regulatory and disciplinary body and the State and between criminal sanctions and disciplinary sanctions, a stronger argument than convenience, perception and the approach taken by other regulators appears necessary to make out the Solicitors Regulation Authority’s case for reform. 67  The Law Society at 2.4.

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need of positive and strong justification where one party, as here, is at a structural advantage over the other. Fairness arguably calls for the higher standard as a means to redress the power imbalance between the SRA as regulator and prosecutor and individual solicitors. At the very least it calls for serious consideration of any justification for lowering the standard based on convenience. Secondly, reform based on a supposed perception rather than reality is never a strong or a proper basis for reform. It is a superficial basis for reform. Rather than suggest a fundamental change, if client perception is as suggested above, a more principled and appropriate response would seem to be to: ascertain why the perception has arisen; consider how far the perception is accurate; and then, engage in client education to dispel the perception to the extent it is a false one and then, and only then, consider what appropriate steps may be taken to redress the issue. Such steps may not necessarily include lowering the standard of proof. If there is a perception that the disciplinary process is weighted in favour of lawyers, it may properly be redressed by reforming the prosecutorial body or by transferring jurisdiction from the SDT, the judges of which are a combination of solicitors and non-lawyers, to the courts. The appropriate reform step however ought only to be taken when the nature of the perception and its cause are properly understood. Turning finally, to the third reason put forward by the SRA, that such a change is appropriate because other sectors have adopted it. Arguments from analogy often appear superficially convincing. They can however gloss over important differences, ones that expose the lie at the heart of the comparison drawn. The legal profession, while regulated, like the medical or accountancy professions is one which plays a significantly different role within society. That difference is reflected within the Legal Services Act 2007, and particularly s.  1, which requires regulation to be carried out, amongst other things, to protect the public interest, support the rule of law, and encourage an independent profession. Regulation of other professions does not involve any of these three principles. Moving to a civil standard, making it easier and simpler for the prosecutor to prove cases brought against solicitors, may have a negative impact on each of these three principles. It may encourage defensive practices by solicitors. It may discourage independence. A lower threshold, where the prosecutor is also the regulator, may provide the basis for a winnowing away of independence through the implicit, even unwitting, potential threat of disciplinary proceedings. While this latter point might not necessarily point towards not adopting a civil standard, at the very least it would suggest that if there is a move towards a civil standard it would need to be carried out along with a complete separation of function between the regulatory body and prosecutor, so that the possibility of disciplinary action cannot lie, consciously or unconsciously, behind regulatory action and a lawyer’s response to their regulator. As with the court’s flawed attempt to introduce a higher civil standard, policy considerations – the effect on

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the rule of law, legal independence – which go beyond comparisons with other regulated sectors and the supposed needs of a prosecutor to more easily secure convictions, need to be considered. Such considerations are better carried out by legislative bodies, or in the case of lawyers the Legal Services Board rather than by those bodies that have a direct interest in the outcome.

European Approach

Evaluation of Evidence and Standard of Proof in the ELI/UNIDROIT European Rules of Civil Procedure Michael Stürner

I. The ELI/UNIDROIT European Rules of Civil Procedure 1. Institutional Background In 2004, after years of intensive drafting, the American Law Institute (ALI) and UNIDROIT1 adopted Principles of Transnational Civil Procedure. Those principles were designed to reduce uncertainty for parties litigating in unfamiliar surroundings and promote fairness in judicial proceedings through the de­ velopment of a model universal civil procedural code. Together with the Rules of Transnational Civil Procedure, which were not formally adopted by either UNIDROIT or the ALI, these Principles may be considered as a ‘model for reform in domestic legislation’. Building upon this work, the cooperative venture of the European Law Institute (ELI) and UNIDROIT entitled ‘From Transnational Principles to European Rules of Civil Procedure’ aims at a regional development of the ALI/UNIDROIT Principles. The project started in late 2013. The first three Working Groups (Service and Due Notice of Proceedings; Provisional and Protective Measures; and Access to Information and Evidence) were constituted in 2014. Close-to-final drafts were already discussed in the official bodies of both ELI and UNIDROIT.2 The aim of this paper is to show an outline of the Rules drafted by the Working Group on Access to Information and Evidence, especially with regard to the evaluation of evidence and standard of proof, from the viewpoint of a member of that Working Group.3 1  Institut international pour l’unification du droit privé, or International Institute for the Unification of Private Law. 2  For the “Final Version Draft Rules”, which were discussed in the UNIDROIT Governing Council on 10–12 May 2017, see http://www.unidroit.org/english/governments/council documents/2017session/cd-96-07-e.pdf [last checked on 24 August 2017]). 3 Co-Reporters of the Working group were: Neil Andrews (England; until September 2016), and Fernando Gascón Inchausti (Spain). Members were: Laura Ervo (Sweden and Finland), Frédérique Ferrand (France), Viktória Harsági (Hungary) and Michael Stürner (Germany). For a more detailed account of the Rules, cf. Gascón Inchausti and Stürner, Unif. L. Rev. 2019, issue 1 (forthcoming).

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The idea behind the project is to identify the common core of the law of evidence and draft the most convenient rules, including those related to the management of evidence. While the ALI/UNIDROIT Principles of Transnational Civil Procedure as the most succinct comparative account so far have been used as a starting point, the Working Group also looked at recent legal instruments such as the 2010 IBA Rules on the Taking of Evidence in International Arbitration as well as European Union law, namely the Directives on IP Rights, on Competition Damages Claims, and on Trade Secrets, the Regulation on the European Small Claims Procedure, and the draft Rules of Procedure of the Unified Patent Court. Where appropriate, case law of both European Court of Human Rights4 and Court of Justice of the European Union 5 was taken into account. No specific comparative research was carried out, as it goes without saying that the diversity of the legal background of the Working Group Members added to the comparative foundation of the Rules. The Rules on Access to Information and Evidence consist of four parts. The first part is entitled General Part, with Sections on General Provisions on Evidence, on Presentation of Evidence, and on Management and Evaluation of ­Evidence. The second part deals with Access to Evidence Orders. The third part contains rules on types of evidence such as documents, testimony, examination of parties, expert evidence, and judicial inspection. The fourth and final part deals with cross-border issues. The provisions on evaluation of evidence and standard of proof are located in the general part. 2. The Use of Model Rules Model Rules such as the ELI/UNIDROIT European Rules of Civil Procedure can be seen as a source of inspiration for national and supranational legislators. On 4 July 2017 the European Parliament has adopted a Resolution with recommendations to the Commission on common minimum standards of civil procedure in the European Union (2015/2084(INL). 6 The directive proposed therein is not aimed at substituting national civil procedure systems in their entirety. It states that “while respecting national specificities and the fundamental right to an effective remedy and to a fair trial, which ensures effective and efficient access to justice, it is aimed at establishing common minimum standards regarding the function and conduct of Member States’ civil proceedings in relation to all matters falling within the scope of Union law”. Furthermore, pursuant to the Resolution, “common minimum standards of civil procedure 4  E. g. with regard to the approach towards illegally obtained evidence, or pertaining to the right of a party to ask questions directly to a witness. 5  E. g. with regard to the duty to give a reasoned decision, or generally case law pertaining to the Evidence Regulation. 6 See here: http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=en&ref erence=2015/2084(INL)).

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are deemed necessary to form a sound basis for the approximation and improvement of national laws, in view of the flexibility it gives to Member States in preparing new civil procedure laws while reflecting a general consensus on the principles of civil justice practice”. Shortly afterwards, on 12 July 2017, the European Parliament’s Legal Affairs Committee held a public hearing on ‘The ELI-UNIDROIT Civil Procedure Project: State of Play and Next Steps’. It is not the right place here to discuss this Resolution, nor address the more general question whether the approach taken by the Parliament is to be applauded, or even consistent, as it claims to set mere minimum standards, while proposing partly model rules.7 Anyway the Resolution does not contain any recommendations pertaining to the evaluation of evidence, or indeed to the standard of proof. It only addresses the taking of evidence in a very broad manner (Article 10). Suffice it to state that the academic work done by the Working Groups seems to be a good basis not only for academic, but also for political discussion.

II. The Role of Evidence in Civil Proceedings Evidence is adduced to prove factual allegations a party makes to support her case. In a system of party presentation, rules have to determine which of the parties has to persuade the judge of the existence of the facts necessary to their case. This is done by the allocation of burden of proof. The distribution of the burden of proof is thus the most central tool of risk-allocation on the parties. 1. Burden of Persuasion and Burden of Proof If a party comes up with a set of facts and wants the judge to find in her favour, that party will have to prove these factual allegations if they are contested by the opponent. Failure to do so (a non liquet situation) will entail a refusal of the judge to decide according to the claimant’s application. This is referred to as the burden of persuasion,8 or objektive Beweislast.9 In order to avoid a non liquet decision of the judge, a party will also bear the burden of adducing evidence. The burden of adducing evidence, or subjektive Beweislast,10 denotes the duty 7 See

Stadler, JZ 2017, 693. terms are being used in a mostly synonymous way, e. g. probative burden, legal burden, or risk of non-persuasion. Cf. Tapper, Cross and Tapper on Evidence, 12th ed. Oxford: Oxford University Press 2010, pp.  119 ff. 9 The objektive Beweislast, or Feststellungslast, determines which of the parties bears the risk of losing the case if a factual allegation cannot be established. See Rosenberg/Schwab/ Gottwald, Zivilprozessrecht, 18th ed., München: Beck 2018, §  116, at note  3. 10  The term Beweisführungslast has the same meaning, see Rosenberg/Schwab/Gott­wald, Zivilprozessrecht, 18th ed., München 2018, §  116, at notes 4 ff. 8  Other

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of a party to raise an issue and to provide sufficient evidence for the judge to call on the other party to answer the case.11 The burden of adducing evidence, once placed, cannot usefully be seen as being shifted to the other party. Nevertheless, in practice, this effect may be, and indeed often is, reached when one party adduces sufficient evidence to prove a factual allegation raised by her. If the opponent cannot, in turn, cast doubt on the probative material introduced by the other party, this particular issue will be settled in favour of the other party. In this sense, the opponent also bears a burden of adducing evidence. However, this is not a burden of proof in a technical sense, as it does not constitute a formal technique of risk-allocation. It is referred to as the tactical shifting of burden, or konkrete Beweisführungs­ last.12 Under the rule of law it must be clear at the outset who will bear the burden of persuasion and who will bear the burden of adducing evidence. In an adversary system, both parties present their arguments and evidence in court, and an impartial tribunal has to decide who is right. The aim of both parties will be to try to convince the judge of their version of the facts in order to be able to apply those substantive provisions that are favourable to them. Consequently, the normal rule that applies is that each party has to prove those factual allegations that lead to the applicability of a substantive right in their favour. As a Latin phrase says, ei qui affirmat non ei qui negat incumbit probatio. This means that normally the party who asserts a fact and not the party who denies it has to support it with evidence.13 It can be inferred from this that in principle both the burden of persuasion and, consequently, the burden of adducing evidence, are generally on the claimant.14 Conversely, allegations advanced in defence against the claim will have to be proven by the defendant. There seems to be a broad international consensus on that approach. The ALI/UNIDROIT Principle 21.1 formulates as follows: “Ordinarily, each party has the burden to prove all the material facts that are the basis of that party’s case.” With only minor changes in the wording, the ELI/UNIDROIT Working group on evidence found the following formulation in Rule 2: Burden of Proof.

11  Other terms include evidential burden, or duty of passing the judge, from the times when there was a jury in civil trials. See Tapper, Cross and Tapper on Evidence, 12th ed. Oxford: Oxford University Press 2010, pp.  119 ff. 12 Cf. Gottwald, JURA 1980, p.  2 25, 227. 13 See Joseph Constantine Steamship Line v Imperial Smelting Corporation Ltd [1942] AC 154 (HL), 174 (Viscount Maugham). For German law see BGHZ 53, 245, 253 (Anastasia case) and Rosenberg/Schwab/Gottwald, Zivilprozessrecht, 18th ed., München: Beck 2018, §  116, at notes 7 ff. 14 See Abrath v North Eastern Railway Company [1883] 11 QBD 440, 456 (Bowen LJ), neatly summing up the allocation of burden of proof and its fate during trial.

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“(1) Each party has the burden to prove all the material facts which form the basis of that party’s case. (2) Substantive law determines the burden of proof.”15 2. Admission of Relevant Evidence Once the role of both parties is clear it has to be clarified which types of evidence are admissible, and how a party gets access to evidence. The latter bears a constitutional dimension, as access to evidence is regarded as being an aspect of the right to a fair trial under Article 6 of the European Convention on Human Rights. It is of great practical importance. The Working Group on Evidence has devoted an entire Chapter on access to evidence orders, drawing on EU Regulations in the field of IP rights and cartel damages claims.16 Different approaches exist relating to the question, how broad the evidentiary basis should be in order to conduct proceedings. The common law process classically starts with discovery of documents, and is concerned with sorting out their relevance for the parties’ claims only later on. In civil law jurisdictions, typically the criterion of relevance dominates the phase before trial, so that only evidence pertinent for a party’s case will be admitted. The ELI/UNIDROIT rules see it as follows: Rule 5. Relevance “(1)  Any relevant evidence is admissible. The court, whether of its own motion or on application by a party, shall exclude evidence which is irrelevant. (2)  Matters alleged in the parties’ pleadings determine relevance.”

And, later on: Rule 19. Evaluation of Evidence and Judgment “(1)  The court shall take into account all relevant evidence when making its final decision. […]”

Clearly, this reflects the civil law tradition. But with the recent developments in England and Wales, where disclosure was severely restricted, a consensus on the criterion of relevance was reached in the Working Group on Evidence.

15  The reference to substantive law as the origin of the burden of proof is to be found in Comment P-21A to the ALI/UNIDROIT Principles. Of course, the applicable law has to be determined in the first place. 16  Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights; and Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union.

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III. Evaluation of Evidence 1. Formal vs. Substantive Approach On the basis of all evidence which has gone through the filter of relevance the judge has to evaluate the evidentiary weight of each item in order to decide on the merits of the case. Broadly two models are conceivable:17 The first, to be found in the Roman cognition procedure of Justinian, determines the probative force of means of evidence according to abstract criteria. For instance documents were said to have superior evidentiary value over other means of evidence. There were also rules concerning the number of witnesses necessary to arrive at full proof equal to what could be proven by means of a document. Such rules existed throughout the Middle Ages on the continent in the “learned process” (Gelehrter Prozess), where learned judges would ascertain the truth according to strict evidentiary rules. The Common Law process developed similar rules. Historically, the jury ­trial can be seen as one of the key factors for such formalism. The rule against hearsay evidence, for example, was intended to prevent the jury from relying too much on statements with typically low evidentiary persuasion.18 The second model, which has gained much influence in modern civil process, puts much more reliance on the judge. It is the principle of free evaluation of evidence. While the formalist model stems from the scholastic ideal of an absolute truth to be ascertained by means of technical rules without relying too much on subjective impressions, the age of enlightenment brought about a ­fundamental shift towards the individual. The abolition of formal rules of evidence was a consequence of this development. 2. Free Evaluation of Evidence The ELI/UNIDROIT Rules adopt the latter approach. Again, they draw on the approach of the ALI/UNIDROIT Principles. Pursuant to Principle 16.6, “[t]he court should make free evaluation of the evidence and attach no unjustified significance to evidence according to its type or source”. As the comments to that principle further clarify, the idea is to do away with the more formal approach and place no special legal value on any specific means of evidence.19 However, as the comments further explain, this is not meant to be interpreted as a complete ban on national laws that require a specified formality in a transaction, such as written documentation of a contract involving real property.20 17 See

Stürner, RabelsZ 69 (2005), p.  201, 237 ff.; Scherpe, RabelsZ 80 (2016), p.  888, 895 ff. Brinkmann, Das Beweismaß im Zivilprozess aus rechtsvergleichender Sicht, Bonn: Carl Heymanns Verlag 2005, p.  15. 19  ALI/UNIDROIT Principles, Comment P-16G. 20  See Article 9 (1) IBA Rules on the Taking of Evidence (Admissibility and Assessment of 18 See

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Rule 19 of the ELI/UNIDROIT Rules on “Evaluation of Evidence and Judgment” puts it even in a more succinct manner: “(2) The court will freely evaluate the evidence.” The Working Group reached a consensus that this rule was accepted in all European systems so that no special mentioning needed to be made as regards the evidentiary equality of all means of evidence. However, just as the drafters of the ALI/UNIDROIT Principles, the Working Group were of the opinion that some of the remaining national rules on a binding or enhanced value of certain types of evidence should not be touched upon.21 For example in French Law, in civil (but not in commercial) matters, claims with a value of over 1 500 € may only be established by a written document (“par écrit sous signature privée ou authentique”), safe in exceptional circumstances.22 Likewise, but with a different historical underpinning, the interpretation of a written contract is seen as a matter of law rather than a matter of fact. As a consequence, permission to appeal against such decisions is more readily granted, as the higher instances are less concerned with factual issues. Conversely, in a dispute pertaining to establishing the contents of an unwritten contract, this is seen as a factual issue. It nearly goes without saying that, in evaluating evidence, the court is not bound by the parties’ allegations. As fundamental procedural principle, the parties may not derogate from the power of the judge of free evaluation of evidence by concluding an agreement on the evidentiary value of certain types of evidence. 3. Limits The trust this approach puts on the person of the judge, or the collegiate organ on the bench, does not come boundlessly. The Working Group on Evidence did not spell out such limits, but tacitly departed from the view that free evaluation certainly does not mean arbitrariness in the decision. First, in a system of party autonomy, the parties determine the scope of the dispute. Likewise, they are responsible for the introduction of factual allegations and, if necessary, the proof of those facts. This basic principle is reiterated in Rule 1 of the ELI/UNIDROIT Rules on the Scope of the Dispute: “The scope of the dispute is determined by the claims and defences of the parties in the pleadings, including amendments.” Consequently, the judge may not take into account facts which were not introduced by the parties, nor may he disreEvidence): 1. The Arbitral Tribunal shall determine the admissibility, relevance, materiality and weight of evidence. […]. Without spelling out clearly this amounts to the same result as the principle of free evaluation of evidence. 21  See the Comments to Rule 19(2). 22  See Article 1359 code civil, as modified by Ordonnance n°2016-131 du 10 février 2016, to be read in conjunction with Décret n°80-533 du 15 juillet 1980 pris pour l’application de l’article 1341 du code civil.

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gard undisputed facts even though he may see them as not reflecting the truth. Moreover, the laws of logic and natural science must be observed. Lastly, private knowledge of the judge can never be the basis of the judgment.23 The process of weighing of the evidence presented before the court must be made transparent, and it must follow rational patterns. For this reason, rule Rule 16 (3) of the ELI/UNIDROIT Rules requires that “Final judgment should be accompanied, whether immediately or within a reasonable time, by a reasoned explanation of the essential evidential, factual, and legal basis of the decision”. Thus the aggrieved party will be able to determine the chances of success of an appeal against the decision.24

IV. Standard of Proof That leads to the closely related question of according to which standards the judge should evaluate the evidence presented in court.25 The aim is to establish the facts of the case in order to determine the legal consequences arising out of the situation. Much has been written about the goal of civil proceedings. Clearly, the absolute truth can never be reached, and may not even be the ultimate goal in a party-driven litigation. Indeed, the parties have the power to alter the legal ties that exist between them. Likewise, they may determine the factual framework within which the court then operates. Thus there is no need, or justification, for the court to look beyond this setting. But within these procedural boundaries the court must strive to ascertain the true facts of the case. This “procedural truth” is not second best, as it derives its legitimacy from the rules of procedure, which operate fairly as between the parties. Clearly, if evidence serves to prove that factual allegations are true, the ultimate goal of free evaluation of evidence must be some degree of conviction of the judge pertaining to the version put forward by one party or the other. The standard of proof determines the threshold established in each procedural system.

23  See Comments to Rule 3 on Standard of Proof: “It goes without saying that the court may only consider itself convinced or satisfied of the truth taking account of all relevant evidence or other valid methods, such as those described in rule 4; private knowledge of the court shall never be the basis for a decision on issues of fact.” 24  Moreover, the duty to give reason reflects a more general aspect of the right to a fair trial, see CJEU, 6 September 2012, Case C-619/10, Trade Agency, at para.  53, and CJEU, 14 December 2006, Case C-283/05, ASML, at para.  28. 25  Certainly with respect to the standard of proof forum law applies. See Nagel/Gottwald, Internationales Zivilprozessrecht, 7th ed. 2013, §  10 note  56; Brinkmann, ZZP 129 (2016), p.  461, 482.

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1. Comparative Remarks In comparative view, different standards of proof can be found.26 The traditional formula used in English civil procedure refers to a “balance of probabilities”. This means that the judge must be a little more convinced of the version of the party on whom the onus lies than not. It does not mean, however, that the judge must prefer the allegations of one party over those of the other. The evidence adduced by the defending party may simply cast doubt on the story told by the claimant’s witness without being itself convincing.27 The preponderance-standard in civil proceedings has to be distinguished from the standard of proof in criminal proceedings, where the guilt of the accused has to be “beyond reasonable doubt”. In the U.S., in some cases a middle ground between those two standards seems to be established by the formula of “clear, convincing and satisfactory evidence”. But also in the rest of the common law world, the preponderance formula seems to be far from satisfactory in all cases. Following Lord Denning’s dictum in Bater v. Bater, a floating standard of proof was introduced:28 “There may be degrees of probability within that standard. The degree depends on the subject matter.” The perspective of a reasonable and just man has to be chosen. That really leaves a broad margin of appreciation for the judge. Later on, English courts have advocated a return towards the probabilities-test.29 Continental civil law seems to have the highest standard of all as it requires proof beyond reasonable doubt.30 But in practise this boils down to a workable compromise, as set out in one of the not so many judgments of the German Bundesgerichtshof on the standard of proof: Pursuant to the decision in the socalled Anastasia case, a personal conviction of the judge is enough, which can be said to exist even though small doubts may persist.31 Moreover, the law sometimes confers on the judge the power to estimate the extent of the damage (e. g. §  287 ZPO) or of lost profits (e. g. §  252 BGB). In those cases the standard of proof for causality and other issues is said to be slightly lower than usual.32 26  For a comparative analysis see Tichý, Festschrift für Ulrich Magnus, München: Sellier 2014, p.  709. 27 See Brinkmann, Das Beweismaß im Zivilprozess aus rechtsvergleichender Sicht, Bonn: Carl Heymanns Verlag 2005, pp.  29 ff. 28  Bater v. Bater [1950] 2 All E.R. 458, 459 (Lord Denning). 29  Re B [2009] 1 AC 11, at 5, 13 (HL) (Lord Hofmann). 30  See §  286 (1) ZPO: „Das Gericht hat unter Berücksichtigung des gesamten Inhalts der Verhandlungen und des Ergebnisses einer etwaigen Beweisaufnahme nach freier Überzeugung zu entscheiden, ob eine tatsächliche Behauptung für wahr oder für nicht wahr zu erachten sei.“ 31  BGHZ 53, p.  245, 256. 32  BGH NJW 1993, 734: „eine deutlich überwiegende, auf gesicherter Grundlage beruhende Wahrscheinlichkeit reicht für die richterliche Überzeugungsbildung aus“. Contra Brinkmann, Das Beweismaß im Zivilprozess aus rechtsvergleichender Sicht, Bonn: Carl Heymanns Verlag 2005, pp.  51 ff.

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But is it all just semantics? Some authors in fact claim that in reality the standard of proof in common law and in civil law is equal.33 For them, the decisive criterion is the personal conviction of the judge. In both civil law and common law this leaves a broad corridor for an approximation of all formula used without having to change the systems in substance.34 Statistical evidence seems to suggest that the degree of conviction is around 70 % in both civil law and common law systems despite the seemingly fundamental divergence of the theoretical approach.35 2. The Approach of the Working Group Indeed, the ALI/UNIDROIT Principles departed from the comparative result, as the comments point out that “[t]he standard of ‘reasonably convinced’ is in substance that applied in most legal systems. The standard in the United States and some other countries is ‘preponderance of the evidence’ but functionally that is essentially the same.”36 Consequently, Principle 21.2 on Burden and Standard of Proof reads: “Facts are considered proven when the court is reasonably convinced of their truth.” The Working Group found this to be a good compromise, and only slightly refined the wording. Rule 3 on Standard of Proof reads: “A contested issue of fact is proven when the court is reasonably convinced of its truth.” The notion of “reasonable conviction” is intended to signify that in theory a “full” conviction would be desirable, but will only rarely be reached in practice. The term “reasonably” should therefore be understood as meaning “as closely to the full conviction as possible”.37 By the same token, it gives the judge the necessary flexibility while maintaining a fairly high standard. At the end of the day, it seems, this solution substantially aims at echoing the civil law standard, but at the same time makes allusions to the flexibility characterising the common law. As the comments to Rule 3 make clear, “convinced” may be understood as “satisfied”. This could be taken as a further concession to common law thinking, giving the judge some flexibility to adapt to the circumstances of the case. It should not, however, be understood as introducing a floating standard of proof, as advocated by Lord Denning in Bater v. Bater. 33 See Brinkmann, Das Beweismaß im Zivilprozess aus rechtsvergleichender Sicht, Bonn: Carl Heymanns Verlag 2005, pp.  61 ff.; Rosenberg/Schwab/Gottwald, Zivilprozessrecht, 18th ed., München: Beck 2018, §  114, at notes 13 ff. The flexible approach towards standard of proof advocated by Gottwald has found considerable support in German doctrine, cf. e. g. Rüßmann, Festschrift für Peter Gottwald, München: Beck 2014, p.  539. 34 Contra Scherpe, RabelsZ 80 (2016), pp.  888, 902 ff. 35  Schweizer, Beweiswürdigung und Beweismaß – Rationalität und Intuition, Tübingen: Mohr 2015, pp.  576 ff. For a critical account of this approach see Gottwald, Festschrift für Thomas Sutter-Somm, Zürich: Schulthess 2016, p.  125. 36  ALI/UNIDROIT Principles, Comment P-21B. 37  See Comments to Rule 3.

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While it is true that from a comparative viewpoint, the “merger thesis” of common law and civil law standards of proof may be difficult to sustain,38 the compromise reached in both ALI/UNIDROIT Principles and ELI/UNIDROIT Rules seems to please proponents of both legal families. At the same time, as model rules they leave enough room for a national, or indeed supranational, legislator to adapt the content to its procedural tradition.

38 

See the account by Scherpe, RabelsZ 80 (2016), p.  888, 906.

Comparison

Standard of Proof Fundamental Problems Through the Perspective of Comparative Analysis Luboš Tichý

I. Subject of the paper “Everywhere you look, there is only probability, no certainty,” wrote Gerhard Kegel1 in his text from 1983. This uncertainty is inherent in to human thinking and human life, as man cannot be certain, with some exceptions, about the phenomena that happened in the past – absolute truth does not exist. What a­ pplies to a simple fact may be applied with adequately greater accuracy to the groups of facts that make up a certain event. The more complex the past, the more difficult is its reconstruction. Reconstruction of past events, including cognition and evaluation, is an issue each which of us deals with, but above all – and exclusively indeed – these problems apply to a judge whose task is to evaluate, on the basis of evidence, the parties’ allegations regarding the factual basis of the exercised claim. The purpose of this paper is to perform a comparative analysis of the basic approaches to the question of standard of proof in the field of civil procedure in selected jurisdictions. To accomplish this task (and not only in regard of comparative analysis), the basic criterion must be tertium comparationis. In other words, it is necessary to define an ideal picture (ideal model) of the standard of proof. Such a model is a sufficiently credible reconstruction of the past. To define this model solution, it is necessary to identify its key components (elements) that serve as partial scales of evaluation of the subject of our research. Such an ideal model is subordinate to the basic purpose, the correct decision on the merits, which presupposes a sufficiently credible reconstruction of the factual basis of the exercised (alleged) claim. That is the second part of my contribution. In the third part, based on the above criterion, I perform a short analysis of basic (main) approaches and tendencies. I deal with the Anglo-Saxon approach

1  Kegel, Sicherheit und Wahrscheinlichkeit im Recht, Festschrift für St. Rosenfeld, 1983, p.  144.

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to proof, briefly analyse the Scandinavian model, as presented in P. O. Ekelöf’s theory, and then focus on the continental concept. One aspect ought to be emphasized – it is a functional approach, respectively functional analysis. In the fourth part, I present my own solution to the problem in the form of a challenge and recommendation for judges and legislators.

II. Elements of a model solution. Tertium comparationis As has just been said, the model solution has two basic components, a descriptive part and a normative part. The former is comprises of extra-legal, proce­ dural and substantive elements, the second includes values, principles and ob­ jectives relevant to the overall orientation of the model. 1. Prerequisites and elements The standard of proof issue naturally concerns a wide range of categories, or institutes, which to a large extent go beyond the basically procedural concept. They have their roots outside procedural law, respectively outside the legal system completely. According to their background, as already indicated above, ­extra-legal, procedural and substantive elements should be distinguished. a) Primary cathegories aa) Recognition and assessment – rational approach versus intuition Under the subjective probability theory partial knowledge inhibits people from archieving cognitive integrity. The process of gaining experience or belief actually goes beyond the bare cognitive sphere. The legal doctrine emphasizes the irrational, emotional aspects of belief, which may be described as intuition, and a certain way of thinking by a judge. It is even argued that such a complex phenomenon, such as assessment of a relatively complex set of evidence, can only be accomplished through intuition: it is a highly intuitive process based on reason and intuition, which consists of the link between thought and feeling. Obviously, unconscious and parallel processing of information overloads analytical reason. Intuition is, to a large extent, an unconscious procedure of information processing, resulting in a feeling that may influence our otherwise rational decision-making. Apparently, the significance of the survey published in 1984, 2 which revealed a fundamental shortage in the otherwise widely accepted rational approach of judges, is still valid. In another case, the extent to which the assessment of a particular evidence was found to differ, with variations of up to 2 

Bürkle, Richterliche Alltagstheorien im Bereich des Zivilrechts, 1984.

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300 % being demonstrated.3 What is important, however, is that courts do not justify the standard of persuasiveness of a particular proof, in individual details or as a whole. According to Friedrich Stein, the protocol statement is a generalization that is obtained by induction and goes beyond the scope of an individual case and hence claims general validity or validity in a more general manner.4 This means that such a statement applies to all specific cases. Uncertain protocol statements, which differ from the generally valid ones quantitatively but not qualitatively, are permissible as well. Experience restricts the judge by linking him to reality, thus limiting his freedom to form his belief. bb) Conviction Conviction is the result of a cognitive process, which based on evaluation of relevant information tells whether a certain fact (object of cognition) has or has not happened in the past.5 Part of the cognitive process is the evaluation of information that directly or indirectly touches the object of belief, as well as those that are of a general nature and act as an ideological framework that must be respected in the process of recognition. The psychological processes of the evaluator (cognizing person) contribute to the creation of a belief and cause the fact that the belief is knowledge of to have an intrinsically subjective nature, which is also affected by emotional and irrational influences. A judge’s conviction is one of the criteria of the degree of authenticity (correctness or, sometimes, truthfulness) in finding (reconstructing) the past reality. This measure is expressed by the term of truth and probability. Regarding conviction, as it is presented, 6 there is no bipolar value (meaning) and it can thus have many degrees (it can be graded). This, after all, corresponds to the general (common) custom, that “someone is fully, 100 % or not completely insufficiently, and so on, convinced”. Therefore, the adequate term “prevalent belief” used by Schweizer 7 is being interpreted miscellaneously. Conviction is a judge’s decisive verdict about the facts. As a rule (depending on the range of the factual circumstances), it concerns both individual facts and the overall facts, as a set of these circumstances influencing of the whole event. Here, it is generally accepted that the lower the authenticity (probability) of the conviction (cognition) of individual elements, the lower the degree of conviction about the whole (aggregate). 3  Einmal, Zeugenirrtum und Beweismaß im Zivilprozess. Eine Fallstudie am Beispiel des Verkehrsunfallprozesses, NJW 2001, p.  469, 474. 4  Stein, Das private Wissen des Richters, 1983, p.  14. 5  But see a different definition from e. g. Greger, Beweis und Wahrscheinlichkeit, 1978, p.  20. 6  E. g. Greger, fn.  5, p.  32, and Brinkmann, Das Beweismaß im Zivilprozess aus rechtsvergleichender Sicht, 2005, p.  63. 7  Schweizer, Beweiswürdigung und Beweismaß, 2015, passim.

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The creation of a belief is the result of a mental process. As said, its object consists of, from the common point of view, two kinds of information. A judge proceeds inductively and verifies individual specific information and proceeds from direct information to mediated (indirect) information and from one element (fact) to the other. Simultaneously, he verifies individual findings by testing compliance with his own facts and scientific knowledge. Finally, he evaluates all the elements in their complexity. Simply said, conviction is a result of evaluating a proof (evidence), because its creation is the outcome of a cognitive, and therefore evaluative, process. Conviction takes the form of a statement of truth. Because it is known, however, that the absolute truth (certainty) 8 cannot be reached,9 it is an expression of a probability judgement regarding one of its elements, the whole set of facts, or a portion of the facts. cc) Truth The vast majority of central European literature clings to the conclusion that standard of proof is the truth. This absolutely elementary philosophical category, however, must be dealt within a relatively, very narrow sense of the word.10 The truth is to be understood in a relative sense, also with regard to the decreasing standard of proof, which is out of question in German law, and should be treated as a criterion for a reconstruction of the facts as the basis of the legal assessment. This process happens without the claim for recognition of the truth.11 It can therefore be stated that the truth is what will be sought during proceedings. It is not something unquestionable and objective. Actually, the parties are struggling for truth.12 Surprisingly, Gottwald admits to his earlier views and claims that truth is actually “a preponderance of evidence”. He inclines to the English doctrine when he reckons that the truth is what the parties are talking in favour. It is, therefore, something that exists between the parties and therefore something of a relative nature. These categories are not opposites. When in doubt, we will only make decisions regarding truth to the highest degree when upholding the probability. Tensions between these institutes will be eliminated if, firstly, we consider the assessment of evidence and law enforcement not as two separate questions but as a unified decision-making procedure, and secondly, if we distinguish the ­maturity of decision-making and the boundary for the final decision, based on 8 

Greger, fn.  5, p.  27. Prutting, Gegenwartsprobleme der Beweislast, 1983, p.  101 f., Leipold, Wahrheit und Beweis im Zivilprozess, Festschrift für Nakamura, 1996, p.  320 and others. 10  Leipold, fn.  9, 321 f. 11  Ibidem. 12  Gottwald, Das flexible Beweismaß im englischen und deutschen Zivilprozess, Festschrift für D. Henrich, 2000, p.  165 f. 9 See

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various points of view. Absolute truth, as a harmony of the hypothesis and reality, cannot be achieved, and therefore it is necessary to stay in accordance with American and English judges, who use the word “truth” very rarely, and to be very reluctant concerning this category, thereby using the notion of probability instead. The German ZPO requires the judge to acquire a conviction of truthfulness about the presented allegation. It is hence not possible to settle for a mere probability. This theory of standard of proof is therefore a subjective one. On the contrary, the objective theory of standard of proof is based on a substitution of the judge’s conviction with a determination of probability. The problem of truth and probability was solved by the experienced German judge Albert Hellwig. He considered that the judge who condemns the accused person must be convinced of the truth of what he found out. This conviction, however, can never guarantee that what he has found out is truly true.13 From an objective point of view, this is simply a determination of probability. dd) Probability A common human experience makes it obvious that the phenomena that will happen (in the future) or have happened (in the past), can only be understood as certain hypotheses, which means, with a certain probability. While natural sciences understand and use probability for “foreseeing”, which means they situate this category to the future, evidence law situates it in the past. It represents the purpose and measure of the knowledge about past events and their reconstruction. Necessarily, it only is about approaching the “true” reality, called the truth, whose credibility, in view of its complexity, cannot be reproduced to 100 %. It is a sort of ideal object.14 This perhaps may be achieved in individual or partial elements of past events, so the truth, in the sense of the correspondence theory of truth, can be understood as a concord of factual claims with reality. It is therefore a sort of unattainable goal. In philosophy, in the natural sciences and even in law, a whole series of definitions of this concept have been developed; but none of them are generally accepted (up to this point Musielak’s statement is still applicable15), and therefore a number of types of probability exist. Schweizer16 presents probability based on everyday experience, i. e. empirical probability (Alltags- oder Erfahrungswahrscheinlichkeit), classical probability, subjective and logical probability, as well as frequentist and propen13  Hellwig, Wahrheit und Wahrscheinlichkeit im Strafverfahren, Der Gerichtssaal 88 (1922), p.  417, 431. 14  Greger, fn.  5, p.  38. 15  Musielak, Das Överviktsprincip: zum Verhältnis von richterlicher Überzeugung und Wahrscheinlichkeit, in Lüderitz, Schöder (eds.), Internationales Privatrecht und Rechtsvergleichung im Ausgang des 20. Jahrhunderts: Bewahrung oder Wende?, 1977, p.  455. 16  Schweizer, fn.  7, p.  96.

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sity probability as subcategories of epistemic and ontic probabilitiy. Speaking only about Germanic legal-culture milieu, various authors developed their own conceptions of probability such as Kegel, Maassen, Musielak, Greger, Evers, Gottwald, Stegmüller, Motsch, Huber, Bourmistrov-Jüttner, Weber, Grense, Brinkmann, Geikel, Berger-Steiner and others.17 For our purposes, we refer to Musielak’s statement that all evidence is in fact a probabilistic evidence18 and we only focus on three, respectively. Two developed models which, moreover, are the most used in the literature. At the same time, we are aware of a certain simplification that is necessary for the purpose of this short study, but which undoubtedly operates with some unclearly-defined terms and especially forms, and their overlaps. An illustration and example is the considerable closeness, almost sameness, of the concepts of subjective and logical (inductive) forms of probability. An objective (or relative, mathematical or statistical) form of probability is based on frequentism and defined as a ratio of a case in favor of a particular hypothesis to all cases of the same kind, where all of them must be equally possible or viable. The probability itself therefore refers to the relative frequency (occurrence) of a particular event. Application is possible for types, resp. categories of events. It is claimed that it is not applicable for determining the probability of a particular, individual event,19 and therefore this form is sometimes considered inapplicable within the legal context.20 The objective form of probability is based on a probability assessment of a hypothesis through the personal experience of a strictly rational person.21 This theory operates with so-called subjective probability of maximal quotients, where the degree of probability is identical to the degree to which a strictly rational person, according to his experience, is willing to advocate his opinion about occurrence of a certain fact. Personal experience is used in accordance with rules that exclude arbitrariness and guarantee that the conclusions do not contradict. A certain analogy of the subjective form of probability is the logical or inductive form of

17  Kegel, Der Individualanscheinsbeweis und die Verteilung der Beweislast nach der überwiegender Wahrscheinlichkeit, Festschrift für H. S. Kronstein, 1967, p.  343, Weitnauer, Wahrscheinlichkeit und Tatsachenbestellung, 1966, p.   3, 4, Maassen, Beweismassprobleme im Schadensersatzprozess, 1975, Greger, fn.  5, p.  39 ff., Evers, Begriff und Bedeutung der Wahrscheinlichkeit für die richterliche Beweiswürdigung, 1979, p.  51, 66, Gottwald, Schadens­ zurechnung und Schadensschätzung, 1979, p.  193, Motsch, Vom rechtsgenügenden Beweis, 1983, p.  140 ff., Huber, Das Beweismass im Zivilprozess, 1983, p.  113, Nell, Wahrscheinlichkeitsurteile in juristischen Entscheidungen, 1983, 105 ff., Bourmistrov-Jüttner, Subjektive Wahrscheinlichkeitstheorie und rationale Entscheidungstheorie in Anwendung auf die Rechts­praxis, 1987, p.  61, 128 ff., Brinkmann, fn.  6 , p.  6 , 63 ff., Berger-Steiner, Beweismass im Privatrecht, 2008, p.  109 f. 18  Musielak, Die Grundlagen der Beweislast im Zivilprozess, 1975, p.  115–116. 19  Greger, fn.  5, p.  42. 20  Brinkmann, fn.  6 , p.  24. 21  See also Nell, fn.  17, p.  35 ff.

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probability,22 which makes conclusions about the correctness of a hypothesis based on the existing set of inductive facts. Unlike the subjective form of probability, the inductive form points not to the degree of belief, but focuses on the subjective weight of the reasoning of inductively acquired convictions. It follows the logical relationship between the conclusion and the assumption of probability in the sense of logic, thus it denotes an objective given fact, and actually the degree of confirmation of the hypothesis based on experience. The statement about it is credible if reasoning, i. e. the relation between hypothesis and experience, proves it or confirms it. Obviously, these three forms have common features and some of their aspects necessarily overlap. As it is also in the relationship between objective and subjective form of probability. Because a strictly rational person using subjective form of probability is able to make a mathematically accurate conclusion, in all cases where a probability of correctness of a hypothesis can be mathematically calculated from a certain set of facts, the objective form of probability makes an analogous the same result. The difference between the two forms can then be that the subjective form is also applicable in cases where the infinite mathematical series cannot be deduced and therefore the statistical method of relative frequency cannot be used. The subjective form of probability is thus limited by rational rules and thus becomes objective in its character. The probability rate is even higher between the subjective and the logical form of probability. Both aim not at finding objective characteristics of the analyzed event, such as a certain assertion, but their target on evaluation, respectively assessment of these characteristics by an evaluator. Each of the objective and the subjective forms of probability has characteristic features. The objective form is based on the so-called “Frequentism theory”, which is applicable and generally 100 % effective in cases concerning relative frequencies in endless series with the possibility of repeating the experiment under the same conditions. In a number of cases, however, this statistical method cannot be applicable. The subjective, and hence the logical, form of probability is characterized by the use of protocol sentences and scientific knowledge. The protocol sentences are based on case-by-case observations and are generalized into abstract knowledge, just as in natural sciences. An occurrence of certain events with affirmative, respectively identical features is observed, or followed-up on: results are determined and based on final observations with regard to the frequency of certain events. The objectivity and validity of the results obtained are strengthened by the fact that the same findings can be obtained from the observations performed independently of each other. The protocol sentences can then be sup-

22 

Musielak, fn.  15, p.  457, Brinkmann, fn.  6 , p.  24.

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ported and verified by these results. In this respect, a certain degree of probability can be attributed to these results. On the basis of this brief analysis, it can be concluded that, as there is no precise, clear definition of probability, it is not possible to recommend an exclusive use of any of probabilistic forms in practice. Depending on the type of case, one or more elements or tools of each probabilistic form can be used. In principle, the subjective consciousness of probability is measured, respectively controlled and corrected by objective perspective, whether by statistical methods or protocol sentences and scientific knowledge. ee) Credibility In some legal orders (e. g. Germany, Switzerland), there is another standard of authenticity, which is credibility or credibilization. It concerns certain evidence or claims of facts, that, for the purpose of convincing a judge, do not need the same degree of authenticity as in the case of so-called full proof. Thus, the credibilization should offer to a court a certain degree of conviction that of a certain event actually took place.23 The standard of authenticity, respectively judge’s conviction, is referred to as a prevailing probability.24 As already indicated, in German and Swiss procedural law, this is an exception to the general standard of proof, which must be explicitly allowed by a court. This is the case of the German ZPO in §  44 (2), §  104 (2), §  236 (2) and many others. Each means of proof is admissible, but a solemn affirmation, including description of the event may still be carried out. Means of proof must be immediately feasible (§  294 (2)). Evidence must therefore be available at oral proceedings. Credibility is used in cases of applications for interim measures, and then, the alleged facts must be proved with the mentioned prevailing probability.25 It is a specific unidirectional way of proving, when a judge is not able to reach full conviction on the basis of a one party’s plea.26 This is a situation of limited scope of evidence, and then the decision in these cases has a provisional, preliminary nature. According to some opinions, the rate of subjective probability may drop below 50 %.27 This is allegedly justified due to the minimization of the expected thwarted costs, when the costs of a failed legitimate measure are higher than the costs of a wrong measure. Therefore, credibility as a measure of belief is considered a flexible standard of proof.28 23  Rosenberg/Schwab/Gottwald, Zivilprozessrecht, 17th ed., 2010, p.  614, mn.  4, according to Leipold, Grundlagen des einstweiligen Rechtsschutzes im zivil-, verfassungs- und verwaltungsgerichtlichen Verfahren, 1971, p.  66. 24  Cf. BGHZ 156, 139. 25  Prütting, fn.  9, p.  8 0. 26  Brinkmann, fn.  6 , p.  53. 27  Schweizer, fn.  7, p.  573. 28  According to Schweizer, fn.  7, p.  573.

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b) Procedural institutes The theory and practice of procedural law have created some of the specific ­institutes used to assess evidence, and mainly in deciding on the extent to which a judge should treat the parties’ claims as proven (standard of proof). As with extra-legal institutions, which are reflected in procedural law, such as in the case of probability, certainty, conviction, etc., some procedural law institutes are more or less embedded in the non-legal sphere. aa) Prima facie evidence The standard of their reliability, which is due, among other things, to the existence and persistence of constant judicial practice, is a criterion for distinguishing between empirical principles and so called phrases of experience. It is not about a specific means of proof, but about the resulting application of a common life experience into the creation of the judge’s conviction during the assessment of evidence. For certain typical occurrences or courses of events, the assessment of evidence enables the use of provisional evidence, including proceedings of evidence, which for example proves a causal link. The phrases of experience should correspond to the current state of knowledge and be in accordance with fundamental laws of logic and laws of nature. As a rule, they differ from legitimate factual and legal presumptions, and also from judicial notice. In the German legal system, they serve as evidence at first sight (Anscheinsbeweis) or prima facie evidence.29 The prima facie evidence does not have a dogmatic basis and is a product of jurisprudence that in Germany, evolved into legal practice and became an inherent part of judicial practice.30 It is essential that the prima facie evidence has no other standard of proof than the general one. Contrary to different views in doctrine and jurisprudence, protocol sentences fulfill the specific evidence role, but they do not have any immediate effect on the burden of proof, and in particular, do not concern the standard of proof. It is therefore wrong to consider the prima facie evidence as one of the means of relief (reduction) from the standard of proof.31 These terms or categories need to be distinguished from so called phrases of experience, as they do not require any evidence and are part of general awareness. However, it is questionable whether these facts must be claimed by the parties, or whether the court should take them into account ex officio.

29  E. g. Rosenberg/Schwab/Gottwald, fn.  23, p.  621, mn.  11, Schweizer, fn.  7, p.  171 ff., p.  368 ff., p.  371 ff. 30  Greger, in Zöller, Zivilprozessordnung, 25th ed., Köln 2005, comment before §  284 ZPO, mn.  29. 31  E. g. Musielak, fn.  18, p.  120 f., Walter, Freie Beweiswürdigung, 1979, p.  156 f., p.  206 f., similarly for example Prütting, fn.  9, p.  101 f.

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bb) Risk of costs, especially of incorrect decisions According to Schweizer32 the relevant costs directly result from the purposes of the civil process. The eligibility of the party to bear the risk of the process is irrelevant. The doctrine about prevailing beliefs best serves the stated purposes of civil procedural law. Costs are crucial for determining the standard of proof, if it is possible to determine when the court’s decision maximizes benefit and minimizes costs. This moment occurs when two situations seem as likely to a judge’s conviction, and his decision will result in a benefit greater than the costs. In other words, if the benefits and the costs (the result of the decision) are all the same, he should decide in favour of the situation that he considers more probable. The ratio of the benefits on the one hand and the costs on the other, as possible consequences of his decision, determines the limits of his decision, if the benefits and costs of the different consequences are not identical. Preponderance of evidence is the basis for such a decision, which takes into account the economy of proceedings principle. If the purpose of civil process is to implement substantive law, this goal is achieved if the court accepts the legitimate claims and rejects those which are not based on substantive law. In this case, no costs are thwarted. Costs are thwarted if the court complies with an illegitimate claim and dismisses a legitimate action. In both cases, the court committed a mistake, which is, in prin­ ciple, equally serious. However, it is a question of whether unnecessary (thwarted) costs are avoided if the standard of proof is only the prevailing belief, i. e. the judge’s belief about the authenticity of the claims of one party outweighs the belief about the authenticity of the other party’s claims. Costs should be understood not only as the material losses of the party concerned and the economic costs of the company.33 It is necessary also to include “social” costs which do not have an immediate negative impact in this category on the parties, even though they are difficult to specify, but have an overall societal significance. Typically such costs concern incertitude within legal consciousness, i. e. the legal uncertainty that arises when judgments are based on incorrectly established facts and therefore such decisions are wrong. According to Bender34 this indirectly represents a kind of social costs. This may be the case when the standard of proof relates to situations such as proving that the damage is too high, so that the injured party cannot reach any compensation. If, on the contrary, the standard of proof is set too low, it can lead to an excessive amount of not fully justified judgments, for example, the imposition of unjustifably tough obligations to pay damages that may lead to the bankruptcy of alleged perpetrators. 32 

Schweizer, fn.  7, p.  10. Bender, Das Beweismaß, Festschrift für Fritz Baur, 1981, p.  247, 252. 34  Ibidem. 33 

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When considering the standard of proof, i.e. with regard to the probability or firm belief of truth, the costs referred to as social costs35 must be taken into account. These are the losses or disadvantages, respectively even the benefits that arise as a result of a judicial decision. These are the negative consequences of incorrect decisions. “Social costs” affect not only the parties to the dispute or other related (acting) persons, but they can also be characterized as economic costs at large. The basis and background is a general tendency to approve (justify) decisions that maximize expected benefits and minimize expected costs.36 This is particularly true in cases involving two opposing positions (arguments based on facts), which, are equally probable according to the individual who is to decide the merits of each according to his conviction. If there is a need to decide between them, the decision is made for the result which brings increased benefits and lowered costs. On the other hand, if the benefits and costs of the resulting decision are identical (the same), he chooses the alternative that he considers to be more probable. Relevant costs are based on values which, when not respected, result in a legal sanction. Costs, respectively benefits are also related to a degree (measure) of standard of proof.37 In general, the higher the standard of proof, the lower the probability that applicants will succeed with their claims, whilst the lower standard of proof may also more likely lead to unjustified enrichment. This suggests that the first approach better leads to social reconciliation, while in the latter case, unhealthy tendencies to “litigations at all costs” are encouraged, which may also lead to an abundace of cases and overloading of the judical system. Thus, it is possible to consider the duties of a judge and to consider the possible impact of his decision. Therefore, the rule should be that a higher standard of proof should be taken into consideration if the substantive consequences of a wrong decision would be considerably worse for one party, when compared to the opposing party.38 According to Greger,39 an incorrect decision imposing a benefit implies gross injustice, and in addition, in such a case, the psychological effect of “endowment” implies that it is more painful for a person to surrender an asset than to only be forced to forfeit its acquisition. c) Substantive law and its institutes As the provisions of §  287 of the German ZPO and §  136 of the Czech Civil Procedure Code illustrate, the situation regarding the assessment and standard of proof in certain legal areas or within substantive law institutes is specific. It distinguishes mainly between the mutual position of the parties, the degree of 35 

Ibidem. Schweizer, fn.  7, p.  4 40. 37  E. g. Bender, fn.  33, p.  254. 38  Strandberg, The More-probable-than-not Standard, in this volume. 39  Greger, fn.  5, p.  74. 36 

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protection with regard to the importance of the protected legal interests, the characteristic effect of some natural or social laws, the importance of specific expertise and, finally, characteristic social phenomena or natural events. It is about proving a fault, causal link, product liability, so-called toxic liability issues, and issues of mass damage. The reflection of the standard of proof is relevant the court’s decision on the merit, i. e. the solution to the “all or nothing” question, or so much that corresponds to the standard of proof. For example, based on witness testimony and expert opinion, the court concludes that it is very probable that the defendant physician has committed a mistake. However, the court does not consider the claim to be fully established and estimates the probability at 80 %. Should the judge in this case dismiss the claim, or should he award compensation and if so, should the compensation be at the level of 100 %, or 80 % of the damage? aa) Standard of proof and substantive law From the functional perspective of standard of proof, one important aspect is obvious. The standard of proof is a key to assessing the subject matter of the proceedings, i.e. the issue of substantive law. The extent of evidence is thus one of the “contact” points in which substantive and procedural law are intertwined. Therefore, there must be respect for the servient role of procedural law, which “implements” the substantive law by carrying out its assignment.40 Therefore, it is only logical that when assessing the standard of proof, it is necessary to reflect the substantive nature of the subject matter of the individual proceedings, and in fact to fulfill the servient role of the procedural law. In other words, the standard of proof must be subject to “substantive qualifications” as well. This is indeed happening in many jurisdictions. It is only necessary to recall the reduced standard of proof in assessing the amount of compensation for damages in German law (see §  287 ZPO in relation to §  252 BGB). The connection of standard of proof, respectively the evaluation of evidence in general, with substantive law is emphasized by, among others.41 Greger states that procedural law can not justify liability, which has no support in substantive law, even though this should primarily be the purpose of burden of proof. In this respect, Swedish practice is likely to be relevant. According to this, the generally determined amount (level) of the standard of proof may be reduced in accordance with the normal accessibility level of evidence and, in particular, in other legitimate cases of substantive law.42 In general, a rule should be applied, that the 40 

Baldus, Beweismass und materielles Recht, Festschrift für W. Gerhard, 2004, p.  759. Greger, Hodnocení důkazu a míra důkazu (Assessment of evidence and standard of proof), in Tichý, Prokazování příčinné souvislosti multikauzálních škod (Evidence of multicausal damage), 2010, p.  77 ff. 42  Strandberg, Standards of Evidence in Scandinavia, in this volume. 41 

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standard of proof should serve as a tool to offset inequality between the opportunities (possibilities) of the opposing parties. Some exceptions to the standard of proof can be found in US law, where account should be taken of the gravity of the arguments of the application.43 Another case of reducing the standard of proof in light of the substantive nature of the subject-matter of proceedings is the Grogan v. Garner judgment.44 It is also significant that the question of standard of proof in private international law must be resolved by applicable substantive law (lex causae), because in the case of liability for damage, it is the very question of liability, and a reduction in standard of proof is equal to an increase in compensation claims.45 A connection between standard of proof and substantive law is demonstrated by a certain type of relief from the standard of proof under the terms of substantive provisions of the German Act on contractual insurance (Versicherungsvertragsgesetz). It concerns a proof of theft, which must be proved by the injured insured party “with a sufficient probability” (hinreichende Wahrscheinlichkeit). It is a lower standard than the balance of probabilities, and it is achieved by the fact that the plaintiff is capable of proving the theft, in particular with proof of the presence of stolen goods at the place of offence, which he must prove as well.46 The lower standard of proof is also provided by another substantive provision in the German legal order, namely the second sentence the §  252 of the BGB, which establishes a probability standard for lost profits (see ad III). On the contrary, an increased standard of proof is contained within the German legal order in §  319 (1), §  562, §  660 (1) and §  2155 (3) of the BGB (see below). A typical example of determining the standard of proof in civil substantive law is illustrated within the Czech legal order, in cases of liability for damages (see III). The standard of proof is expressly provided by certain provisions of the Swedish legal order.47 In common law, there are a wide range of reasons in substantive law which imply increased standards of proof, which are based on the gravity of the claim and its consequences in the case where the action is upheld.48 A typical example of the link between substantive law and procedural law is the Czech Civil Code, which sets probability as a basic standard of proof in eleven (!) provisions. This example makes it clear that the degree of probability, as a measure of decision-making, is not purely a procedural phenomenon (see also III.1). 43  Brinkmann, fn.  6 with reference to the case of Addington v. State of Texas, 1979, 441 U.S.  418, 425. 44  1990, 498 U.S.  279, 286, according to Brinkmann, fn.  6 , p.  18. 45  Geimer, Internationales Zivilprozessrecht, 2001, mn.  2334. 46  See also Scherpe, Alleviations of Proof in German and English Civil Evidence, RabelsZ 80 (2016), p.  888, 909, 910. 47 See, for example, Föräldrabalk, 1949: 381, Chapter   1, §  2 – citation according Brinkmann, fn.  6 , p.  17, note  61. 48  See, for example, Addington v. State of Texas [1979], 441 U. S.  418, 423 etc.

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2. Normative components Particularly in this context, the purpose of the civil process and, in the same context also the objective to be achieved by the formulation of the standard of proof, must be borne in mind. The principle of fairness, which is undoubtedly modified by the principles of procedural economy, equality of parties and, above all, legal certainty, should be taken into account when defining the standard of proof as the predominant credibility of the applicant’s claims. Obviously, the higher the requirements for the fact-finding (standard of proof), the more difficult it is to establish the claim and the more often there will be cases of refusal. In such cases, there is no adequate enforcement of substantive law and it is thus against the objectives of procedural law. In this respect, there is also a violation of fundamental rights and, in general, the principle of the rule of law, which is negatively affected if the entitled person fails to meet its claims. Therefore, the procedural law must not put excessively large and hardly feasible requirements for proof. At the same time, however, the second pillar of civil procedural law must be respected. Substantive law is not enforced when the actually established factual situation has not really happened. This would be an example of a very low standard of proof that could be met easily. It is therefore necessary to take into account the importance of the protected interests, the status of persons and, on that basis, to create certain types of model cases, which will also be an exception to the principle of sufficient credibility of proof. Even the law of evidence should, in a limited sense, reflect some rules that correct the principle of formal equality of parties. Consequently, the concept of assessing evidence, including the standard of proof, should reflect the importance of substantive law in the sense of commutative justice (iustitia commutativa) and take into consideration the fact of material inequality in certain legal relationships. In other words, it should balance the unequal position of the weaker party. The inequalities, however, are manifested in procedural law itself as unilateral difficulties in accessing certain means of proof, particularly in specific situations (mass damage, causal link, etc.). This can be managed by a flexible use of individual elements of our system in favor of a disadvantaged party. Statistical methods, protocol sentences or up-to-date scientific know­ledge can be increasingly involved in such examples. The manifestations of a certain inequality even have the nature of fundamental disparity between the parties involved in the terms of structural imbalance. In the sense of balancing, the principle of proportionality should therefore be applied. It should be involved, above all, in overcoming the courts’ practice of applying the standard of proof in the sense of “all or nothing”. In this sense, particularly in some typical cases, it is possible to speak about obvious disproportion, especially in the tendency to

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approach a high standard of proof. This tendency evidently contradics with the principles of equivalence and also denies the basic mission of the judicial system, in the terms of maintaining a general settlement. The direct effect of the principle of proportionality on the standard of proof emphasises the importance of a balancing mechanism in this legal institution. The flexible use of individual elements of the evidence assessment mechanism, including the standard of proof and respecting the different positions of the parties with regard to their disparity in substantive relations, including in procedural law (and by the same token with regard to the model measure of probability for assessment of evidence) is a general effect of the principle of proportionality concerning the formulation of general rules. In addition, the second function consists in its extraordinary application in cases of particular consideration in the sense of individual justice, as a corrective of the just-mentioned general rules of standard of proof. 3. Functioning of elements. Tertium comparationis a)  Judicial thought, whose undivided part is also intuition, should be freed from irrational elements, i. e. arbitrary acts, or arbitrary decisions. Its paragon point of reference is the decision-making of “a strictly rational person”. b)  The assessment of evidence must be based on both general and personal experience, using scientific knowledge and statistical methods disregarding prejudices and false protocol sentences. c)  The degree of approximation to the truth, therefore to a real event, should be expressed verbally or as a percentage (as probability) by a judge during the reconstruction of the past occurrences, without using any mathematical formulas, which may be incomprehensible for the legal community, and even more so for the non-expert public. d)  The assessment of the evidence should lead to a reasoned conclusion, which is substantially adequate in accordance with both the position of the parties in the relationships established thereby, as well as their access to evidence, and should reflect the risk of costs resulting from a factually inaccurate decision. e)  This should correspond to a relatively flexible probability measure, which also takes into account the above-mentioned risk of costs and the principles of procedural economy and efficiency, as well as the nature and permanence of a claim, and respectively a decision concerned. f)  Procedural simplifications, in particular the prima facie evidence, should not be of greater probative value, as the institution does not serve this purpose. g)  A lower degree of probability results in adequate restrictions on entitlement, as being one of the manifestations of the principle of equivalence. h)  The principles of equivalence and proportionality may exceptionally correct the results of the application of these maxims in favor of individual justice.

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III. Comparative analysis of particular approaches (solutions) 1. Overview a) England The required standard of proof that either party must reach in order to bear the burden of proof, is a proof on a degree of probability (balance of probabilities). This is not, however, necessary when deciding on interim measures that are issued on the basis of the test, whether the defendant has a realistic chance of success. The general standard applies when deciding on procedural measures.49 Judge Denning’s statement in the Miller v. Minister of Pensions case50 is relevant: “It must carry a reasonable degree of probability, but not so high as is required in a criminal case.”51 Anglo-American jurisprudence is conceptually characterized by preponderance of the evidence or balance of probabilities. There is also a clear distinction between the civil law and the criminal law (preponderance standard versus ­beyond reasonable doubt). The standard is clear because the aim is to prevent erroneous convictions in the criminal proceeding. It is noteworthy that balance of probabilities is also used in mixed jurisdictions such as Québec, Scotland, Louisiana and South Africa. Preponderance of evidence focuses on the strength or persuasiveness of proof, though proof is only a means of creating a free air of facts belief. According to the preponderance clause, it is sufficient if the judge believes that the proof offered by the party is strong and more convincing than the other party’s proof. According to that approach, the judge benchmarks the applicant’s and the counterparty’s evidence. The categories contained in the Model Code of Evidence from 1942 and reasonable approach in the House of Lords’ case law are also relevant. There is also a certain flexibility of the concepts of clear and convincing evidence in the American case law and a less flexible approach in English court practice.52 When assessing the likelihood of parties’ claims, the court should agree when finding the claim of a relevant fact having a higher probability than 50 %. However, it is not about examining statistics or using Bayesian probability.53 In other words, proof of an evidenced event must be considered of such a probability of that it is more probable than unlikely.54 49 

Miller v. Cowley [2002] EWCA Civ 1101. See Miller v. Minister of Pensions [1947] 2A11 ER 372. 51  Keane, McKeown, The Modern Law of Evidence, 11th ed., 2016, p.  115. 52 See Batter v. Batter and Smith v. Smith. 53  Sorabji, The English Approach to the Standard of Proof in Civil Proceedings, in this volume. 54  1996, AC 563 at (73). 50 

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b) Scandinavian approach Swedish, Norwegian and Danish jurisdictions, which have a wide range of common features even in civil procedure, have a key feature concerning standard of proof. It differs from the approach typical of the Germanic legal area and its affected jurisdictions, including its own terminology, where the judge’s conviction about the veracity of evidence is essentially predominated by a subjective understanding of his overall approach to the evaluation of evidence. Contrary to this concept, the basis of the Scandinavian concept is that probability is the criterion of evidence, even with regard to the attitudes of opposing parties, and the quest for quantification of the standard of proof. However, in implementing this approach, the three jurisdictions under consideration differ. They differ in the way they are predominantly understood by the foreign academic community, which considers the doctrine of P. O. Ekelöf as a representative of this approach, which is somewhat misunderstood. His method of evaluating evidence aims to determine a probability.55 Therefore, it is about the extent to which the claims of the procedural party have been proved on the basis of existing indications.56 It is clear that in Sweden, and similarly in Norway, the issue of standard of proof is one of the most important questions of civil procedure, which is closely monitored by academic circles. For Swedish practice the doctrine developed by the Supreme Court57 is decisive: the key criterion is the probability of evidence, which it verbally (not percentally) quantified. A high degree of probability is considered to be the basic measure of the standard, which is undoubtedly and considerably higher than a mere prevailing probability. This probability rate, denoted by the Swedish words “visat” or “styrkt”, is quantified in the doctrine as a probability of 90 %. However, there are a number of exceptions to this relatively high standard of proof, which means the standard of proof is reduced in certain cases. Account shall be taken of the purpose and effectiveness of the relevant substantive law. Special rules on the standard of proof are contained directly in the legal provisions of substantive law.58 Standard of proof is thus reduced to the “more likely than unlikely” level.59 The basic rule of Norwegian law is the low standard of proof, which is increased in the exceptions to this rule. This was not the case until the 1990s when the general standard was reduced from a reasonable degree of predominant probability to the current low degree, which is equal to “more probable than 55 

Ekelöf, Beweiswert, in Grunsky et al. (eds.), Festschrift für Fritz Baur, 1981, p.  358. Ibidem, p.  358. 57  Strandberg, Standards of Evidence in Scandinavia, in this volume. 58  Strandberg, ibidem. 59  Strandberg, ibidem. 56 

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unlikely” (“more likely than unlikely”). Only in academic circles or textbooks is this level of evidence is expressed as a 51 % probability or a probability of more than 50 %. The Supreme Court, however, expresses this state by words and does not use the percentage expression. 60 In the Danish jurisdiction, there is no general rule for standard of proof. There is, therefore, an ad hoc method in which a judge takes into account the circumstances of the case, however a certain typology can be stated. Substantive law may require a higher standard of proof, and possibility is also taken into account. Another aspect is the impact of standard of proof on negative costs to the opposing parties. 61 Swedish legal literature (Bolding and Ekelöf) seeks to promote a rational approach and suppress intuition. Even the smallest prevalence of the applicant’s evidence would thus suffice. The theory of both Swedish authors is thus an attempt to formulate the value of proof as one means of evidence, as well as the set of all evidence as a proba­ bilistic judgment. Överviktsprincip recalls the Anglo-Saxon proof of balance of probabilities doctrine, but only at first glance, as it reflects the objectification of taking of evidence. In practice, however, this principle of prevalence has not applied in Sweden. The standard of proof is substantially higher, although there are certain exceptions based primarily on the law provisions. However, the principle of prevalence is essential in Norwegian judicial practice. It still recognizes exceptions to this principle. Danish law does not have a general rule on standard of proof. c) Germany Under the basic provision of §  286 (1) ZPO, the court is required to decide, in accordance with its belief, whether the factual claim must be considered as true or false. It is, therefore, a conviction about what can be considered the truth, and thus a subjective criterion, as relaxed veracity requirement. An earlier case of the German Federal Supreme Court highlighted the impossibility of absolute certainty about the supplied evidence and stated that the judge must be satisfied with a high degree of probability so far as no reasonable and experienced person would doubt the veracity of the evidenced fact. 62 Subsequently, the court has abandoned this approach by its fundamental decision from 1970, when it stated that the judge “must decide whether the claim is true or false” and can not be satisfied with a mere probability. 63 The “probability bordering on certainty” is not considered to be the right formulation, since, according to the Federal Su60 

Strandberg, ibidem. Strandberg, ibidem. 62  BGH NJV 1961, 777. 63  BGHZ 53, 245, 255–256. 61 

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preme Court, it is only an inaccurate form of expression and the judge can not waive acquiring his conviction about the truth. This concept is basically shared by the vast majority of academics. None of the doctrines influenced, in particular, by Swedish academics Bolding and Ekelöf, that perceived as a relevant measure (criterion) a probability of more than 50 %64 or the use of the principle of prevalent probability in cases, where law does not require a probability bordering on certainty, 65 or a slightly predominant probability66 are not taken for granted. Based on the views of the leading German experts in procedural law, it is clear that objective conviction about truth actually means a subjective probability with a degree of conviction of about 90 %. 67 However, there are a wide range of exceptions to the seemingly uniform standard of proof. doctrines, which often depart greatly from conviction about truth. The highest degree of “certainty” means credibilisation (Glaubhaftmachung). The highest degree of probability presupposes evidence by known facts (Anscheinsbeweis), the prima facie ­evidence, and therefore makes another alleviation. In such a “typical course of events,” for example, in the case of damage, the judge is to consider the causal link between the act and the damage as an evidenced fact. Apparently, a higher subjective probability in the sense of a lower degree of certainty, ie a total ­deviation from the conviction about truth, as well as a higher objective pro­ bability, represents the standard of proof in the causal link imposing liability and the determination of the amount of damage in §  287 ZPO in relation to §  252 BGB. German legal practice remains at the maxim that proof cannot be based on probability, but rather on the judge’s belief that the statement is “true”. In other words, the judge must be convinced of the existence of the alleged fact. This belief cannot be identified with a probability judgment. However, it is questionable whether the judge considers the statement to be true. In principle, only the judge’s belief is decisive, this must be subjectively understood in the sense that this belief must be based on rationally understandable criteria. The power of evidence may be problematic in the measure in which it should form a basis for the judge’s belief. However, according to prevailing opinion, this power is not the same in all cases. According to the prevailing opinion, there is a high standard of proof in the sense that evidence must provide a high probability of reality. Nevertheless, there are several exceptions to this requirement, for example in the area of causality. At first glance, it seems that the Federal Supreme Court strictly maintains its doctrine of a high standard of proof in the sense of the judge’s belief about the truth. The case law does not take into account the at64 

Kegel, fn.  17, p.  321 f. Bruns, Zivilprozessrecht,1968, p.  285–286. 66  Maassen, fn.  17, p.  7 ff. 67  Paulus, 90 %, Zivilprozessrecht, mn.  431, Greger, fn.  5, about 95 %, 110, Kadner Grazia­no, ZEuP 2011, p.  171, 189, 90 %, etc. 65 

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tempts of the academic sphere to make this practice more flexible with a flexible concept of standard of proof. Thus, it seeks to escape from this paradigm, not only through procedural provisions (§  287), but also by using the analogy of the jurisdiction with respect to the probability clause, as in §  252 of the BGB. Theoretical opinions considered to be indisputable, in the basic features are not, however, respected in practice. 68 Allegedly, practice has always been different from the doctrine’s views. Even in Germany there is a clear development. Although at least in theory the understanding of the basic elements does not change, certain shifts are obvious. It is evident that terminological changes and their development can not be considered as significant changes from the probability bordering on bounded by “certainty” (an Sicherheit grenzende Wahrscheinlichkeit) and its shift towards the concept of “personal certainty of a judge”.69 As Bender points out,70 it is not an essential change. Personal certainty (persönliche Gewissheit) corresponds to a high degree of “subjective probability” (subjektive Wahrscheinlichkeit) that can be assumed by a reasonable person provided that indirect evidence (indication) gives to him a high degree of objective probability that actually borders on certainty. Setting rules on the standard of proof could be considered an inadmissible restriction on the principle of free assessment of evidence. It could even be argued that it is introducing a legal proof theory. But that is not the case. Whilst the assessment of evidence is a matter of fact, or a determination of the circumstances that correspond to the facts of the relevant legal institute, in the case of the standard of proof, it is necessary to set the boundary of completion of the process and therefore the legal question. The evaluation of the evidence and the level of evidence are two entirely different questions.71 Exceptions in the sense of increasing the standard of proof are present in some provisions of substantive law, in which the higher degree of the standard is expressed in terms as “obviously” (offenbar), “at first glance” (auf den ersten Blick), as mentioned in §  319 (1), §  560, §  660 (1),§  2155 (3) of the BGB. Another exception to the regular standard of proof is so-called prima facie evidence having a considerable importance in German procedural law. It is claimed that it is not full-fledged evidence, but actually there is no doubt about it.72 It is undoubtedly a reduction in the subjective degree of conviction about truth of evidence, and thus a significant breakthrough in the subjective understanding of standard of proof. The basis of conviction is therefore different. There is no control of degree of credibility, as there is no relation to the unique 68 

Bender, fn.  33, p.  247. Persönliche Gewissheit des Richters – BGHZ 53, 251. 70  Bender, fn.  33, p.  248. 71  Bender, fn.  33, p.  249, Maassen, fn.  17, p.  9. 72  Rommé, Der Anscheinsbeweis im Gefüge von Beweiswürdigung, Beweismass und Beweislast, 1989, p.  123. 69 

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factual situation. However, the existence of prima facie evidence leads to a reduction in the standard of proof in general.73 d) Austria Austrian theory of practice is undoubtedly strongly influenced by German concepts. Nevertheless, it differs in several crucial aspects. The prevailing opinion is based on the objective theory on standard of proof, without denying the subjective components of the judge’s belief. The task of evaluating evidence is seen only in the determination of probability (conviction by probability theory) because no one can be required to make a definitive conviction about the truth (Rechberger).74 The justification for the evidence is based on the disclosure of experience maxims on which the judge has reached his assessment. Conclusions can still only be based on probability judgments. The standard of proof is the degree of conviction required by the judge to evaluate the proof. It is clear from §  272 of the ZPO that generally it is necessary to make high demands on the required probability, since the standard level of proof must be high according to the ZPO. The doctrine, that considers the prevailing probability to be sufficient, is worth mentioning because Austrian case law considers it insufficient standard of proof. However, it must be stated that the required probability does not need to achieve certainty, and therefore a high probability in the sense of §  272 ZPO is to be regarded as a standard of proof. There are exceptions to this general standard, both in increasing and reducing the standard of proof. The reason for this is, above all, the substantive regulation, which also plays a significant role in determining the general standard of proof.75 A typical example of increasing the standard is when determining paternity, where a proof of impos­sibility or impossibility bordering almost with certainty that the mother conceived a child with her husband, is required. On the contrary, a lower standard of proof is foreseen by the Liability for damages caused by a product Act, where probability is sufficient with regard to all the circumstances of the case. The reduction of standard of proof is determined by the case-law itself, in matters of liability for damage caused by faulty treatment in relation to the causal course and, in general, of the so-called hypothetical causality.76

73 

Rommé, fn.  72, p.  138. Rechberger, Standard of Proof, The Austrian Approach, in this volume. 75  Rechberger, ibidem. 76  Rechberger, ibidem. 74 

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e) France The purpose of the French law of evidence is, as in Anglo-Saxon law and other continental jurisdictions, the determination of truth.77 This is also the case of rules which, in many dispositions of the Code civil and the Nouveau Code de procédure civil, refer to truth as the objective of taking of evidence.78 In civil law, standard of proof does not exist. Only in criminal proceedings is Art.  427 of the Code de Procédure pénale says that the judge must make his findings according to his intimate conviction (conviction intime). Planiol79 speaks about faith/foi devenue certaine as a proof of (certain evidence of) a certain fact. However, in this context, the word certaine cannot be identified with an absolute certainty. That term simply emphasizes that the objective of producing evidence is to achieve the subjective conviction of a judge. Further, in French law, a distinction is made between historical, objective truth and the judge’s conviction about a certain course of events, based on a legal assessment of reality. There is no need, therefore, for judges to have no doubt about the correctness of the facts that they have determined. f) Czech Republic For the Czech concept of standard of proof, which is yet not use in regulations, nor in case law, the general provision for the evaluation of evidence in §  132 of the Code of Civil Procedure is decisive. This provision has been then interpreted by the Supreme Court in such a way that “the attribution of the value of truth to the individual evidence is done by its evaluation individually and even in mutual correlation. The internal conviction of the tribunal that the witness testimony is untruthful (non-credible), is a result of a logical thought process based on assessment of objective facts of the lower world identified in the particular case, such as contradictions in witness testimony or contradiction between witness testimony and other evidence … .”80 The remarkable point in this case-law is the fact that the court does not mention the phrase “standard of proof”, nor does it speak about “probability”, while it clearly shows that the judge’s inner conviction must reach a clear conclusion about the probability of evidence. It is essential to establish rational rules, i. e. to emphasize the objective aspect of the approach to the question of the standard of proof, for its different degrees. It is obvious that not only legal regulations, but all practices make this differentiation. O ­ ccassionally Czech case law also takes into account the need for a different boundary to achieve the conviction about a successful hearing of evidence.81 77 

Théry, (1996) 23 Droits p.  41, 47. See Art.  10 CC and Art.  181, 218 and 231 of the NCPC. 79  Planiol, Traité élémentaire de droit civil, vol. I, mn.  350. 80  Decision of the Supreme Court, published as SJ 93/2001. 81 See, for example, Vrcha, Tzv. “důkazní standard” ve světle nálezu ÚS sp. zn. I. ÚS 78 

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The determination of borders undoubtedly gives, as an objective approach, preference to the fact that it strengthens legal certainty and, at the same time, equality in terms of the enforcement of claims. In order to quantify the standard of proof, there must be the elements ­(parameters), on which basis a grading can be performed. Furthermore, it is essential that there are virtually no derogations from this rule, although recently it seems that the Constitutional Court82 , rather than the Supreme Court83 will considers the probability issue. As said previously, despite this situation in procedural law, the new Czech Civil Code has been a breakthrough, as it defines the concept of probability in 11 provisions. The Civil Code provides several degrees of probability and, therefore, the standard of proof. – Simple or relative probability in §  2925 (2) of the Civil Code: This provision prescribes the proportional liability of the operator of particularly dangerous traffic under specific conditions. These conditions are that, firstly, the traffic has increased the risk of damage and, secondly, there are other possible causes of damage. In such a case, the court will decide on the operator’s obligation to provide compensation to the extent that it corresponds to the probability of causing the damage by particularly dangerous operation. In this case, it is a matter of proving both the elements. In these cases, it may be necessary to rely on the objective probability theory and the statistical method to demonstrate the significant increase in risk and the proportion of damage caused by the operator in relation to other causes. However, a significant increase should be related either to a situation where there are no other possible causes of the damage, depending on the circumstances, or to a situation where other possible causes exist. A significant increase in risk means, in my opinion, a change of at least 40 %. In determining the probability of causality in relation to traffic and damage, the probability of causality of other possible causes of damage need to be determined as well. The operator’s degree of liability is therefore 0.1 to 100 %. This probability rate must be reached through the probability judgment of the court. – High degree of probability in §  1729 (1) of the Civil Code: Here the legislator defines the conditions of liability in the case of culpa in contrahendo. A dishonest party is obliged to compensate for damage, when the party, despite legitimate expectations for conclusion of the contract of the other party, terminates the negotiation. Another premise of responsibility is a high proba­ bility of the conclusion of the contract at the time when the negotiations were 173/13 (So called standard of proof in the light of Decision of the Constitutional Court), Soudní rozhledy 6, 2014, p.  383. 82  See the decision of the Constitutional Court of 20. August 2014, I ÚS 173/13. 83  See e. g. the decision of the Supreme Court 21 Cdo 2682/2013.

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terminated. In my opinion, the probability rate must reach at least 80 % of certainty, and a determining the reason for the conclusion of the contract is crucial. – Probability approaching certainty in §  2915 (1) of the Civil Code: In this provision, the legislator determines the standard of proof for a cumulative causal link. The joint and several liability of more persons acting unlawfully in separate attacks exists only if it can be proved that each of these persons could have caused the damage with a probability approaching certainty (almost surely). Therefore, the probability rate for each of these persons must be at least 90 %.

2. Comparison and evaluation Based on individual criteria, we can list the following. 1. Application of standard of proof: can be stated that the concept of standard of proof is known in all the legal orders examined, even as a result of long historical developments dating back to the Middle Ages and even though this term is not used in some jurisdictions. However, the Czech Constitutional Court also used the term “standard of proof”, which is mistaken for something other than standard of proof. 2. The importance of legal doctrine and judicial practice: Although legal doctrine has contributed to a certain extent to the development of the theory of standard of proof; the opinion of Supreme courts, and surprisingly even in the German jurisdiction, is decisive. Demonstration of standard of proof in law: Basically, in most cases, with some 3.  exceptions, there are no strict legal rules governing the standard of proof. 4. Truth as the goal for taking evidence. In all jurisdictions, the goal is to find the truth. The difference between the reality existing in the past, and, in the future, is the difference between truth and probability, respectively between truth and the conviction of the court. 5. Objective and subjective approach: This is absolutely a key category, which is manifested both in standard of proof and in probability. Although in the doctrine, there is no clear difference between these categories, it is obvious that Germany draws inspiration from the subjective approach, while other jurisdictions are more likely to follow the objective or objectified concept. 6. Strictness of standard of proof and relief; derogations: Except for the case of the Czech Republic, there are several derogations, which are standardized in procedural and substantive law. 7. Relationship to substantive law: This is manifested above all by a different approach to expressing the grade of standard of proof by a decision on claims. In some cases, the standard is reflected in a granted entitlement (for example,

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English practice), but in most cases, the reflection of the court’s ruling on the merits does not mean a reduction in the standard of proof. 8. The importance of basic legal principles and values: It can be said that the impact of these categories, for example, on standard of proof or its relief is minimal.

IV. Solution 1. Basis In this part of our short study, we present a concept that may be capable of overcoming the weaknesses of existing approaches. It should therefore contain transparent rules which enable a relatively flexible regime. a) Existent situations Based on the comparison of the selected main concepts, we propose the characteristics of some of their features, which we consider as certain disadvantages (weaknesses). The Germanic legal-cultural milieu serves as an example of the continental approach to the standard of proof. In this model the purpose of the standard of proof is to serve as judge’s modified belief on the truth, which is based on a subjective measure, but built on objective conside­rations of probability through thought and empirical rules, under a reasonable third person’s control. The judge must therefore cope with a sort of common-life degree of certainty, which cannot completely exclude certain doubts. 84 It is a very significant compromise between opinions introducing the predominant probability measure85 and the conservative concept that practically eliminates any perspective based on probability.86 This distinctively conservative opinion, which still has some importance, ignores the fact that full evidence, respectively the conviction of truth, is equally difficult to qualify as a probability measure, and the fact that there are a number of exceptions, or reliefs, to that standard. Finally, it appears that in this regime, as the conviction of truth judges often consider the certainty (!) deeply below 100 %.87 This conservative view is, however, considered to be unambiguously decisive in the Czech Republic, which, considering the background of developments in Germany and the details, appears to be a total misunderstanding or even hypocrisy or pharisaism. 84 

Rosenberg/Schwab/Gottwald, fn.  23, §  113, mn.  12. Maassen, fn.  17, 54 ff. 86  See eg Greger, fn.  5, especially p.  201. 87 See Schweizer and the results of the research, according to which the average Swiss judge considers the probability of 63 % as full evidence, Schweizer, fn.  7, p.  11. 85 See

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The English concept, which, unlike the American approach, uses the lowest standard of proof because it is based on the predominant probability, means that the judge believes the party who gives him arguments that he can trust more than the arguments of the other party. This approach does not take into account the fact that the predominant probability itself can often be a relatively unilateral view on proving the facts, since the decisive basis for outweighing can be at such a low degree of probability, that it is barely possible to consider its prevalence as a full proof. In even in Sweden the theories created in the 1960s and the 1970s by the academic community did not break through. So, as is common to the Scandinavian understanding of law, the approach to standard of proof is flexible in all Scandinavian jurisdictions. Whether the general basic standard of proof is set at a relatively high degree of probability or on the contrary at a low one, the ability to take into account the specific circumstances of the case is so broad and the judge’s discretion is only vaguely limited by general rules. Consequently, there arises a suspicion of arbitrariness in order to establish individual justice. b) Relevant model. Importance for solution As has been described several times in the literature, 88 the Anglo-Saxon and continental systems are largely convergent, because despite the relatively different methods, they offer similar results. Similarly, we could learn the same from the Scandinavian concepts. It is therefore necessary to draw on the analysis of individual elements, which are part of the evidence assessment, respectively standard of proof. We have done this in the second chapter (II) and, as a result of this analysis, we consider as an adequate approach the one which takes some methods, respectively specific solutions from all three mentioned models. This concerns, among other things, the understanding of probability as a mixed approach, which is a compromise between subjective, objective and logical probability. Similar compromises, respectively some “mid-way” solutions, also apply to other non-legal and legal categories, such as perception and assessment process or conviction, as well as to the relationship between procedural and substantive law. The role of some fundamental principles, such as the principle of proportionality, which is also relevant for the impact of standard of proof in the sense of adequate reduction of some claims, is also relevant to us. c) Dogmatics The key issue of standard of proof is the relationship between the procedural law, to which this category belongs, and the substantive law, which may also provide rules of evidence, including regulations on the standard of proof. For 88 Cf.

Gottwald, fn.  17, p.  17.5, Brinkmann, fn.  6 , p.  85 ff.

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example, some proceduralists consider the determination of probability of liability for damage between multiple liable parties defined by substantive law as a rule that is of no relevance to the standard of proof. In this extreme example, we can analyze the extent to which the standard of proof is purely a solution of procedural law, and the extent to which the decision on the standard of proof should or must be reflected in substantive law. The view that fully takes into account the explicit provisions of substantive law when determining the standard of proof my be considered wholy predominant. In addition to this direct influence, the impact of substantive rules, which are not expressed in a particular legal regulation, must be taken into account as well. However, this influence of substantive law must also be reflected by procedural law. Specifically, it concerns the questions of necessary procedural favoring of the weaker party or party in the model case of weakened party, as are the cases concerning the injured parties when proving causal link or mass damages. It applies in the same way that the decision on the standard of proof is reflected in substantive law “retroactively” by the fact that the claim in question can be adequately limited in regard to the lower standard of proof. However, the general principle should be that the applying rules should not differ within and outside the proceeding. The concept which we defend should have general validity. 2. Analysis. Basis for solution a) Nature and purpose of the standard of proof The basis of the standard of proof is approximation to the facts that happened in the past. In general, it can be assumed that such a reality, with the exception of simple events captured by precise tools, can only be reconstructed and identified with a certain degree of accuracy. Getting closer to reality (truth) cannot be expressed precisely in the context of a particular complex case. Paradoxically, the most accurate formulation is the prevailing probability formula. Therefore, the case law, irrespective of its origin, prevents judge’s conviction from being quantified by the percentage. b) Truth and probability Given that absolute truth, excluding extraordinary and simple events, cannot be claimed or proved, we determine the concept of probability as the starting point. The objection against this perspective consists in the absence or impossibility of its quantification. But in principle, this objection is essentially incorrect. Even the German law, from which territory this objection originates, knows in its norms the expression of probability (see III.1). However, and above all, it is hard to quantify, except for the conviction of truth, i. e. of full evidence, as the case of probability.

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c) Relationship to substantive law and costs of (incorrect) decisions Procedural law, and therefore the judge’s decision on the standard of proof, must primarily respect the provisions of substantive law that contains the relevant rule. It is similar to cases where substantive law establishes the burden of proof. Although material law does not explicitly provide for the standard of proof, within its institution, the procedural law, respectively the judge’s decision, must reflect the inequality resulting from the substantive position of the parties. The judge must act similarly even if inequality occurs in procedural relations, for example as a result of unequal access to evidence. Procedural law and its rules must reflect the impacts of the standard of proof or consequences – the risks of incorrect decision-making as a result of the standard of proof, and respectively, a dreaded wave of new lawsuits and backlog in courts where the requisite standard of proof is decreased. It is, of course, true that empirical data is lacking in this respect. Until now, no research has been carried out to access the possible impacts, and therefore, the comparisons of court practices in jurisdictions with a relatively low standard of proof, such as in some Scandinavian countries or in English law or compare such impacts between jurisdictions. The impact on the burden of the judicial system is limited to speculation. d) Rules and individual justice The proposed model must have a basic rule, exceptions to it based on the typology of cases, and finally a rule for extraordinary cases of individual exceptions for the purpose of individual justice.

3. Conclusion – Recommended model a) Mixed, subjectively-objectified approach Evaluating sufficiency or persuasiveness of evidence should be built on a mixed approach to probability or standard of proof. The aim is to achieve convincing and transparent justification, which should be based, among other things, on quantification, which means the measurability of conviction and rational approach. Although it concerns a personal belief (opinion), it must be rid of irrational, sensuous elements. A strictly rational person is the ideal model of a judge who considers the context of the case and uses scientific knowledge. Therefore, it combines the elements of the two most important methods (objective and subjective) and searches for their applicability depending on the particular case.

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b) General standard of proof The basic general rule for standard of proof is the highly credible reconstruction of the past reality, to which this reconstruction gets distinctly close. Standard of proof exceeds 80 %. The basic general standard of proof is relatively high, although substantially lower than that one generally held by the Czech Supreme Court and even less strict than the case law and predominant doctrinal view of the Germanic legal systems, and perhaps even generally lower than the whole continental concept of this issue. However, it basically exceeds the prevailing probability, and thus achieves convincing credibility and discourages abusive tendencies, as well as the dreaded flood of lawsuits. Exceptions to this rule should be made, both in the form of tightening and hence raising to a higher standard of proof (one class), and especially in the course of its decreasing the standard, and thus the mitigation of the probability standard (3 categories). c) Higher standard of proof (95 %) A standard of proof, which is higher than the general one, is required in the context of decisions which are irreversible or have consequences that are hard to reverse. They concern particularly personal rights, such as rights involving the status of natural person, for example in determining paternity or maternity. These very sensitive issues expect certainty and require total reliability. d) Lower standard of proof This rule of relief should be set in favor of the public good, public interest or distinctive generic disadvantage, where a lower standard of proof is sufficient, but still exceeds the prevailing improbability. It concerns cases of child welfare, or of a weaker party, respectively issues of causal link, especially in the context of mass damages. The personal or material aspects of these types of cases require the incorporation of the principle of proportionality, which helps balance disproportions of status (the weaker party) or material aspects (for example, in the context of inaccessibility to evidence within a given legal relationships) during proceedings, even though its use is unusual therein. The public interest in existence and support of commonly shared values must be considered. e) Exceptional rule in exceptional cases of toughness The third exception, which decreases the standard of proof uses relief from the established standard of proof, where is necessary to maintain so-called individual justice. The principle of proportionality applies here; its application cannot be excluded, but it will be used extremely rarely. In other words, a very reserved approach is needed in this respect.

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f) The importance of substantive law Material law has to be taken into account in two basic orientations. First of all, it is necessary to respect the determination of the standard of proof, similar to the case of establishing the burden of proof. Such a determination (rule) should be fully respected because the proposed “procedural” rules would not be applicable here. Furthermore, in substantive, quantifiable claims (e. g. damages or unjust enrichment, etc.), however, it is always necessary to properly reduce the entitlement, if in the given case the standard of proof falls lower than 95 %. This results from applying the principle of equivalence as a consequence of a lower credibility of the claimed right.

List of Contributors Ahrens, Hans-Jürgen, Dr. iur, Professor em., Universität Osnabrück. Judge at the Court of Appeal of Celle (required) Althammer, Christoph A., Dr. iur, Professor, Universität Regensburg Balarin, Jan, Mgr., PhD, Lawyer in Prague Holländer, Pavel, JUDr., DrSc., Judge at the Constitutional Court em., Professor, University in Košice Jeuland, Emmanuel, Professor, Université Paris 1 Panthéon-Sorbonne Kern, Christoph A., Dr. iur, LL.M, Professor, Universität Heidelberg Poli, Roberto, Professor, University Cassino, Lawyer in Rome Rechberger, Walter H., Dr. iur, DDr. h.c. Professor em., Universität Wien Schweizer, Mark, Dr. iur, Judge at the Bundespatentgericht, Professor hon., Universität St. Gallen Sorabji, John, DPhil, M.Phil, LL.M, Senior Teaching Fellow, University College London Stürner, Michael, Dr. iur, LL.M, Professor, Universität Konstanz Strandberg, Magne, Dr. iur, Professor, University of Bergen Tichý, Luboš, JUDr., Professor, Charles University, Prague Tolani, Madeleine, Dr. iur. habil., LL.M., Universität Regensburg

Index affectedness  103 ff. all or nothing­  VI, 298, 300 ALI/UNIDROIT Principles  273 ff., 278 ff. American Law Institute (ALI) – law  273 f., 282 – discussion  273, 276, 278 Anglo-Saxon approach  302 f. approach – abstract  52, 54 f. – functional 288 – individualistic  54 ff. Aristotelian system  204 assessment (see also evaluation) – of evidence  18, 39, 101, 123 ff., 175 ff., 197, 208 f., 225, 232, 242 f., 262, 273 f., 278 ff., 290, 295 f., 301 f., 306 f. – of facts  98 f., 164, 173 Austria  8 f., 123 ff., 307 ff. Austrian – Code of Civil Procedure  123 f., 128 f., 163 f. – Civil Code  129 ff. Augenschein (see also judicial inspection)  24 Bard rule  208 ff., 210 ff. Baconian probabilities  37, 215 ff. balance of probabilities  33, 35, 49 f., 58, 63, 73, 252, 255 f., 281, 299, 303 ff. Bayesian/Bayes – approach  27 f., 69, 137 – framework  68 ff., 73 – rule  26 f., 66 – techniques 137 – theorem  68, 215, 231 – theory  68 ff., 73 ff., 83 ff. belief, prevalent  289 Beweislast – objektive  20, 275 – subjektive  20, 43, 275 ff. beyond reasonable doubt  58 ff., 67, 152, 187, 254 ff., 281 f., 302

boycott conduct  105 burden of proof – adducing evidence (see also Beweislast, subjektive)  42, 275 ff. – allocation  20, 34, 41 ff., 50, 91, 131, 155, 168, 275 – apportionment  34, 99 – evidential  249, 253 f., 255 f. – legal  249, 251, 254, 275 – of proof  13, 20 f., 27, 34 f., 41 f., 52, 72, 88, 91 f., 99 f., 111 f., 118, 131 ff., 136, 141 f., 144 f., 151 f., 154 f., 163, 176 f., 190 f., 224, 233, 249 ff., 275 f., 295, 298, 314 – probative  249, 275 – reversal  111, 118 – reversed  151 f., 154, 158 – shifting of  111 ff., 168, 177 f., 276 – ultimative 249 causal link  34, 103 f., 110, 131, 165, 174 f., 189 ff., 198 ff., 206 ff., 212 ff., 295, 305, 315 causation  86 ff., 103, 109 ff., 150 f., 157, 212, 230, 238, 246 certainty – practical  10 ff. – personal  125 ff., 306 f. – probabilistic  214 f., 230 choice of action  28 f. circumstantial evidence  62 f., 100, 118 f., 175 f., 201, 207 f., 223, 235 f. claim – existing  32 ff., 43 – non-existing  32 ff. close chain of evidence  16 cognitive – bias  31, 39 f., 80 ff. – phenomenon  17, 288 f. collective redress  121 comfortable satisfaction  58 f., 63

320

Index

common law  35 f., 58 f., 121 f., 185 f., 247 ff., 265, 277 ff. common experience findings (Erfahrungs­sätze) 168 contestation  99, 131 conviction – bordering on certainty  19, 50 – degree of  13, 19 ff., 37 ff., 120, 22, 280, 294, 305 ff. – free  96, 109, 113, 115, 131, 197 f., 221 f., 243 ff. – full  19 f., 37, 50, 103, 109, 115 ff. – inner  10, 16 ff., 126, 184, 172 ff., 191, 231, 308 – intimate, see conviction, inner – judge’s  13, 170, 308 – reasonable  183, 282 content of the hearings  95, 97 ff. costs – of error (see also error costs)  20 f., 31 ff., 43 ff., 70 – expected  27, 29, 297 – social  296 ff. credibility  16, 173, 203 ff., 223 ff., 230 ff., 240f, 294 ff., 300 Czech – Civil Code  4, 12, 299, 309 – Code of civil procedure  163 ff., 308 f. – Constitutional Court  4, 169 f., 310 – Criminal Procedure Code  14 – Supreme Court  165 f., 315 Czech Republic  3 f., 163 ff., 308 ff. Danish – law  83, 138, 153 ff., 304 – Supreme Court  158 – theory  153, 158 decision – correct  30, 287, – incorrect  30 f., 296 f., 314 – theory  28 f., 35, 40, 65, 74, 77 f. decision threshold, quantifying  28 ff., 34 degree of faith  216 Denmark  83, 136, 139, 153 ff. deterrent effect  82 disciplinary proceedings  249, 266 ff. discretion of the court  5, 42, 91, 95 f., 105, 115, 140, 163, 165 f., 201 f., 221, 234, 244 f., 312

documentary evidence  96, 185, 252, 263 duty to specify the contestation  99 economic analysis  33 f. economy principle  193 effectiveness  19, 34, 81, 107, 145, 189 f., 202, 235, 303 element – objective  125 f., 172 – of proof  56 ff., 59 ff., 63 f. – subjective  113, 127, 171 ELI/UNIDROIT European Rules of Civil Procedure  273 ff. empirical estimates  126 f. England  52, 58, 63, 72, 75, 81, 88, 184 f., 186, 249 f., 273, 277, 302 epistemological attitudes  72 equality of arms  170 f., 257 ff Erfahrungssätze (see also experience)  168 error – costs, minimising  77 – procedural 26 European Law Institute (ELI)  273 ff. evaluation (see also assessment) – of evidence  5 ff., 39 f., 74, 83 ff., 95, 125 f., 142, 156 f., 163, 169 ff., 179, 205, 273 ff., 298, 303, 308 – formal approach  278 – substantive approach  278 – intrapersonal 52 evidence – clear  281, 302 – coherence of  18 – convincing  35, 63, 67, 89, 144, 281, 302 – gathering  80 f., 267 – preponderance of  34, 67, 109, 113 f., 152, 156, 184, 192 f., 195, 198, 212, 214, 222, 234, 245, 290, 296, 302 – relevant  80, 167, 201, 205, 277 f., 280 – satisfactory 281 – scope  3, 18, 294 evidentiary procedure  16, 168 experience – average 127 – expert opinion  104, 168 f. – personal  127, 292 f., 301 expert evidence  15, 170, 263, 274 explanation duty  176

Index

factfinding  21 ff., 46, 48 f., 95, 100 f., 166 – judicial  23, 26 factual – presumptions (res ipsa loquitur)  101 f., 169, 175 ff., 253 – statements  19 f., 26 f., 28 f., 32, 36 ff., 198, 237, 240 fair balance  170 f., 257 flexible rule  143 floating standard of proof  281 f. formation of conviction  97 France  183 ff., 245, 273, 308 full conviction standard, mitigation of  110 German – Civil Procedure Act  37, 126 – doctrine  21, 37 f., 124, 282 – Federal Supreme Court  57, 60 f., 100, 105, 304 – practice 99 – Reich Court  17 Glaubhaftmachung  36 f., 40 ff., 165, 305 good faith  99, 167 f., 178 harm  44 f., 74, 103 ff., 109, 165, 174 ff., 206 f., 227 ff., 246, 250, 256, 291 human perception  24 hypotheses  12, 220, 241 ff., 246 f., 291 injury  35, 81, 86, 103 ff., 110 ff., 146, 153, 157, 214, 251 intuition  173, 288 ff., 301, 304 Italian – civil code  224 f., 228 f., 232 ff., 240 – Code of civil procedure  201, 228, 235 f., 238, 240 f. – Code of criminal procedure  198, 202, 207 ff., 224 f., 229, 233, 240 f. – Court of Cassation  198 ff. Italy  177, 194, 197 f. judicial – evidence evaluation  24 – inspection  24, 274 justification of evidence rules  77

321

Kausalität – haftungsausfüllende  103, 110 f. – haftungsbegründende 103, 110 f. Keynesian weight  138 Kolmogorow axiom  37 law – Evidentiary 111 – Substantive  169, 173 f., 178, 193, 277 f., 296 ff. legal – proof theory  306 – certainty  169 f., 214, 300, 309 liability – establishing causation  110, 115 ff. – implementing causation  110 ff. logic, internal  168 lost profit  104 ff., 281, 299 main rule  65 ff., 89 f., 138 f., 143 ff., 156 ff. mandatory rule  140 mass damage  121 f., 298, 300, 313, 315 mathematical – analyses  39, 217 – exercise 63 maximising number of correct judgments  74, 148 measurability  127, 314 medical malpractice cases  102 f. mental disorder  167 ff. mistake, procedural  28 ff. model rules  274 f., 283 more-probable-than-not  65 ff., 140 ff. multiplication paradox – effect 85 – rule 85 non-securing of evidence  154 non-liquet  42, 43, 131, 132 non-proving negative facts  178 normative behavioral theory  155 Norway  65, 73 f., 83, 85, 87, 136, 139 f., 303 Norwegian – law  74, 88, 91, 138, 141, 147 f., 151, 152, 154, 158, 303 – Supreme Court  73, 138, 151 – theory 92

322

Index

object of proof  56 f., 58 f., 63 objective standard of proof  124 outcome matrix  30 piece of evidence  69, 80 f., 83, 98, 127, 142 f., 165, 168, 174, 262 party driven (mode) litigation  80, 280 preponderance – of conviction  20, 33, 35, 37, 39 f., 40 ff., 43, 48 f., 50, 125 – of evidence  34, 67, 109, 113, 114, 152, 156, 184, 192, 195, 198, 212, 214, 222, 234, 245, 290, 296, 302 – principle (see also Überwiegensprinzip)  74, 135, 136, 149, 159 presumption – legal  100, 101, 111, 113, 118, 145, 174, 295 – judge made  101 pre-trial situations  80 prima facie – evidence  100 ff., 105, 114, 118 ff., 130, 131, 195 f., 301, 306 f., – proof  111 f., 117 ff., 169, 171, 176 ff. proceedings – civil  4, 11, 13, 16, 19, 21 f., 26, 32, 33, 35, 46, 48, 99, 128, 132, 139, 163, 172, 184, 185, 198, 203, 212, 230, 243, 246, 249 f., 252, 258 ff., 264, 267, 274, 275, 280, 281, 302 – criminal  3, 8, 12, 16, 85, 183, 198 f., 203, 205, 206, 230, 249, 254, 255, 258 ff., 266, 267, 281, 308 process – cognitive 289 – psychological 289 probability – a priori  17, 42 – axioms of  27, 37, 38, 69, 84 – Baconian  37, 215 f., 217, 239 – bordering on certainty  12, 114, 304, 305 – complying with ordinary experience in life 114 – degree of  12 f., 17 f., 63, 69 f., 73, 116, 120, 127, 129 f., 141, 144 f., 147, 157 f., 170 f., 172, 200, 214 f., 221, 227, 231, 235, 254, 255, 259, 292, 294, 299, 303 f., 309, 312 – epistemic  55, 217, 292

– high  11, 13, 59, 114, 128 f., 132, 170, 172, 174, 176, 214, 222, 223, 239, 305, 307, 309 – logical  198, 206, 207, 211 f., 217 ff., 222 f., 227 ff., 234, 245, 291, 312 – mathematical  56, 256, 292 – non-numerical 18 – objective  51, 54 f., 56 ff., 62, 305, 306, 309 – Pascalian  215 f., 217, 239 – predominant  11, 130 f., 303, 305, 311, 312 – preponderant  114, 128 – presumption 126 – prevailing  14, 294, 303, 307, 313, 315, – probabilistic conclusion  169, 174 – probative evidence  250 – reasonable  213, 231 – relative  214, 225, 226, 309 – rules of  7, 69 – statistical  206, 215, 216, 222, 239, 240 – stronger logical  198, 225, 226 – subjective  27 f., 38 f., 51, 55 f., 58 ff., 63 f., 288, 292, 294, 305 f. – theory  11, 27, 38 f., 69 f., 76, 288, 307, 309 pure economic loss  104 rational credibility  203, 206, 207, 208, 212 f., 217, 223 ff., 230 f., 234, 237, 239 f., 243 reasonable doubt  4, 7, 13, 18, 35 f., 39, 56, 59 f., 65, 67, 149, 152, 156, 166, 167, 172 f., 175, 184, 187, 198, 209 ff. 230, 241, 242, 254 f., 257, 281, 302 reasoning – complete 205 – credible  205, 223, 293 – plausible  205, 239 – rationally  205, 223, 239, – reliable  205, 239 Roman-Canonical procedure  53, 123 Roman law  6, 52, 53, 185 Scandinavia  65, 74, 75, 83, 91, 135 ff., 154, 155, 158, 183, 198, 288, 303, 312, 314 secondary burden of allegation (sekun­ däre Darlegungslast)  99, 176, 178

Index

semi proof  185 simplification  85, 91, 113, 216, 292, 301 shifted burden of fact allegation  99, 101 subjective probability  27 f., 37 f., 40, 51, 55 ff., 58 ff., 63 f., 288, 292, 294, 305, 306 socio-economic risk – bearing capacity  32 – standard de prevue  183, 188 f. standard of proof – applicable  32, 35, 40, 56, 58, 78, 116, 139, 148, 153, 257 – adjusting 32 – balance of probabilities  32, 35, 49 f., 58, 63, 73, 257, 261 f., 281, 299, 302, 304 – beyond reasonable doubt  59 f., 152, 156, 184, 187, 254, 257, 281, 302 – civil  40, 67, 69, 257, 260 f., 265 ff. – criminal  254, 256, 259, 260, 265 – flexible  41, 116, 129, 143, 163, 249, 282, 294, 306, 312 – intermediate  35, 67, 89, 249, 259, 260 – lowering  32, 40, 47 f., 50, 158, 258, 268 – more probable than not standard  65 ff., 70 f., 74 ff., 79 f., 83 ff., 90 ff., 127, 140, 142 f., 148 ff., 195, 219, 222, 227 f., 242, 245, 246, 297 f. – objective 124 – preponderance of evidence  34, 67, 109, 113, 114, 152, 156, 184, 192, 195, 198, 212, 214, 222, 234, 245, 290, 296, 302 – reasonable conviction  183, 282 – reduction of  114, 119, 125, 130 f., 295, 299, 307, 311 – subjective  33, 124, 170 standardized assessment of facts  102 state of the world  23 f., 25 f., 28, 29, 31, 44 ff. statistical evidence  30, 38, 49, 282 story model  68, 71 ff., 84 f., 137 submission of facts  98 f. Styrian State Order  123, 127 styrkt  142, 144 f., 303 Sweden  32, 65, 74, 81, 88, 136, 138, 140, 145, 153, 197, 273, 303, 304, 312

323

Swedish – discussion 138 – law  91, 136 f., 141 ff., 147, 154, 158 – Supreme Court  138, 141, 143, 146 – System 143 – theory 159 Switzerland  20 f., 32, 40, 45, 49 f., 294 theory of probability  11, 68, 69 truth – formal  11, 25, 26 – juridical 25 – normative 25 – procedural  25, 199, 204, 231, 280 – social 25 – subjective  25, 97 – subjectivistic 25 truthfulness, conviction of  168, 171, 291 UNIDROIT  183, 273 ff. uncertainty  10, 19, 26 f., 30, 34, 69, 70, 76, 79, 82, 105, 116, 118, 137, 141, 149, 158, 173, 176, 187, 189, 200, 206, 207, 229, 245, 273, 287, 296 USA  35, 36, 39, 49, 50, 59, 61, 63, 68, 73, 75, 88, 109, 110, 113, 256, 281, 299 utility  31 f., 69 f., 77 f., 92, 192, 193 Überwiegensprinzip  74, 135 f., 159 verdict – correct  70 f., 73, 75 f., 78 ff., 83 ff., 89, 92, 142, 149 f., 158 – incorrect  70 f., 73 f., 77, 80, 87 f., 89 f., 92, 143, 145, 148, 153, 157, 158 visat  144 f., 303 Wahrheitsüberzeugungstheorie  124, 129 Wahrscheinlichkeitstheorie  24, 29, 32, 38, 127, 292 Worrisome allegation  153 wrongdoing  86, 17