Burden of Going Forward

The onus on a party to a case to refute or to explain.

The burden of going forward, also called the burden of producing evidence, burden of production, or the burden of proceeding, requires a party in a lawsuit to refute or explain each item of evidence introduced as the trial progresses that damages or discredits his or her position in the action. Suppose a person is charged with the possession of stolen goods. After the prosecution has introduced evidence of the defendant's possession of such goods, the defense bears the burden of refuting or explaining the evidence. If the evidence appears unfavorable for the prosecution, it has the burden of going forward to produce more evidence to bolster its claim that the defendant committed the crime. A failure to produce more evidence may result in the judge's dismissing the charges against the defendant. If the prosecution produces such evidence, it shifts the burden of production back to the defendant who must then refute the additional evidence.

In a civil action, the burden of going forward also shifts during the proceeding. The burden of producing evidence shifts to the defendant after the plaintiff rests its case, but it may shift even before that time. In a wrongful death claim, for example, the plaintiff may at a certain point in the trial file a motion asking for a ruling (sometimes a motion for a summary judgment or a motion for a directed verdict) in her or his favor by maintaining that she or he has presented sufficient evidence to show that the defendant's actions resulted in the victim's death. The burden then shifts to the defendant to produce additional evidence to refute the plaintiff's claim; otherwise, the judge may grant the plaintiff's motion, thus concluding the case in the plaintiff's favor.