Legal Definitions - risk of nonpersuasion

The term "risk of nonpersuasion" refers to the responsibility a party in a legal case has to convince the judge or jury that their claims or defenses are true. If they fail to present enough convincing evidence, or if the decision-maker remains unconvinced by the evidence presented, that party will lose on the specific issue or claim they were trying to prove. Essentially, it is the risk that if you do not successfully persuade the court, the decision will go against you.

This concept is closely related to the "burden of persuasion," which is the legal standard that dictates how much evidence a party must present to win their case or a particular point within it. The party bearing the risk of nonpersuasion is the one who loses if the evidence is equally balanced or if the decision-maker simply isn't convinced by their arguments.

• Example 1: A Contract Dispute

  Imagine a small business, "Creative Designs Inc.," sues a client, "Modern Homes LLC," for $10,000, claiming Modern Homes failed to pay for a completed website design project. Creative Designs Inc. has the risk of nonpersuasion regarding whether a valid contract existed, whether the work was completed as agreed, and whether payment is due. If Creative Designs Inc. presents evidence (emails, invoices, witness testimony) but the judge finds it insufficient or unconvincing to prove these points, Creative Designs Inc. bears the risk of nonpersuasion and will lose its claim for payment.

• Example 2: An Affirmative Defense in a Criminal Case

  Consider a defendant, Mr. Harrison, who is charged with assault. Mr. Harrison claims he acted in self-defense. While the prosecution has the overall burden to prove Mr. Harrison committed assault beyond a reasonable doubt, Mr. Harrison often has the risk of nonpersuasion regarding his affirmative defense of self-defense. If he fails to present enough credible evidence (e.g., testimony about the victim's aggression, medical records of his own injuries) to persuade the jury that his actions were a reasonable response to a perceived threat, he bears the risk of nonpersuasion on that defense, and the jury might find him guilty of assault.

• Example 3: An Appeal for Government Benefits

  Suppose Ms. Chen applies for disability benefits, and her initial application is denied. She appeals this decision to an administrative law judge. Ms. Chen carries the risk of nonpersuasion to prove that she meets the specific medical and vocational criteria for disability as defined by the government program. If her medical records, doctor's statements, and her own testimony are not compelling enough to convince the judge that her condition prevents her from working, she bears the risk of nonpersuasion, and her appeal for benefits will be denied.