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In the second example, a rebuttable mandatory presumption shifts the burden of production with regard to an element of the crime from the prosecution to the defense, which may amount to an impermissible directed verdict against the defendant and also may relieve the prosecution of its burden of persuasion if the court requires a certain quantum of rebuttal proof.
146) Then, if the plaintiff offers a feather's weight of evidence, he would thereby carry not only his burden of production but also his burden of persuasion.
164, 187-88 (1989) (holding that the black petitioner in a Title VII case could carry her burden of persuasion without showing that she was better qualified for a job than the white applicant hired in her stead).
affirmative defenses and thus to shift the burden of persuasion, but the
39) Two rationales support the Burdine opinion: (1) the burden of persuasion on a particular issue, as an established principle of evidence, never shifts, (40) and (2) the McDonnell Douglas progressive burden shifts should "bring the litigants and the court expeditiously and fairly to [the] ultimate question.
35) The burden of persuasion then shifted to the defendant, MAC, to apportion out the enhanced from the non-enhanced injuries.
Under the default rules of litigation, a principal (or franchisor) who seeks to prove a breach of promise by its agent typically will be allocated both the burden of production and the burden of persuasion.
merely allocated the burden of persuasion on provocation, as did the New
Consequently, if the insurer can draw the coverage battle lines on the plain of the accident/occurrence definition rather than on one of these fortuity-based exclusions, the insurer is potentially relieved of its need to shoulder the burden of persuasion as well as the maxim that exclusions are strictly construed against the insurer and in favor of coverage.
Morris had both the initial burden of producing evidence showing that the plaintiffs' suit was time-barred and the burden of persuasion that there was no triable issue of material fact and that she was entitled to judgment as a matter of law.
Nothing in the Communications Act of 1934, as cited by the FCC, shifts the ultimate burden of persuasion to others.