1. WHERE WE ARE & WHAT WE’RE DOING Pleading Pre-trial Trial & Post-trial Judge/jury relationship Appeal

2. TRIAL Limits of Rational Inference P. 716, note 5 White Cab v. Yellow Cab Hit & run by cab White cab owns 75% White cab owns 95% White cab owns all cabs in Provo But outside cabs sometimes White cab owns 75% Plus W says “think” in service light was white

3. TRIAL Limits of Rational Inference P. 716, note 5 White Cab v. Yellow Cab Issues Standard of proof (50% v. 95%) Circumstantial v. direct evidence Availability of other proof All-or-nothing verdicts

4. TRIAL Limits of Rational Inference P. 716, note 6 Rare cancer & uranium plant Statistical evidence increase in deathrate Linked to arrival of plant

5. TAKEAWAYS Limits of Rational Inference Civil Trials Not establish 100% “truth” Probabilities Rules for 2 nd Guessing Jury Define outer boundaries

6. TRIAL Burden of Production (before, during trial) Burden of Persuasion (end of trial) Burden of Proof

7. TRIAL Distinguishing Burdens Hamilton v. Artistic Tattoos SJ on negligence per se denied Dispute re: whether EH signed release Case goes to trial

8. TRIAL Distinguishing Burdens At trial, who has initial Burden of production on Breach Did plug pulling incident happen on 11/28/01? Release Did Elise Hamilton sign a release? How does party satisfy burden?

9. TRIAL Distinguishing Burdens At trial, if Elise Hamilton meets initial burden of production What must Artistic Tattoos do to get case to jury?

10. TRIAL Preponderance of the evidence >50% (civil) Clear, cogent, and convincing evidence (fraud, will contests) Beyond a reasonable doubt (criminal) Burden of Persuasion

11. TRIAL Distinguishing Burdens Who has Burden of persuasion on Breach Did plug pulling incident happen on 11/28/01? Release Whether Elise Hamilton signed the release?

12. TRIAL Distinguishing Burdens What if jury believes plug pulling incident happened on 11/28/01? Does burden of persuasion matter?

13. TRIAL Distinguishing Burdens What if jury believes plug pulling incident didn’t happen 11/28/01? Does burden of persuasion matter?

14. TRIAL Distinguishing Burdens What if jury can’t decide whether plug pulling incident happened 11/28/01? Does burden of persuasion matter?