Maintain Your Professional Objectivity to Avoid Being Taken In By a Passionately Emphatic Client

By: Scott McEachern

Unsure Person In civil law, the burden of proof requires proof on a balance of probability; and accordingly, the evidence to support the alleged facts requires something to reasonably suggest that the allegations are more likely true than false.  Indeed, the burden of proof involves objectively viewed probabilities rather than subjectively viewed possibilities.

Per the case of Cannito v. Madison Properties Inc.2018 ONSC 6190 at paragraph 31, "An inference of causation must be based on objective facts rather than conjecture or speculation."

Unfortunately, all too often clients with strong felt beliefs convince legal professionals to pursue litigation based on allegations that are formed of from merely a subjective viewpoint involving conjecture and speculation of the possibilities rather than via objectively considered probabilities.

If the proof is based merely on a guess by your client, steer clear.  Without directly supporting evidence, a guess is only a guess.  This point and concern is especially important where state of mind is involved such as intentional torts, among other causes of action.  Without powers of clairvoyance, it is usually impossible to know what someone else knews or thought.  While this point should be plain and obvious to professional legal advisors, the strong-willed belief and emphatic assertions by a deeply positioned client can sometimes cause a legal professional to lose objectivity and begin to view what is really just a guess as being some sort of genuine proof.  Remember, cases built on circumstantial evidence only can be very difficult to win.

Although Cannito is a fairly simple occupier liability case involving a trip-and-fall incident, a very key point applicable to a very broad spectrum of cases and issues is this point that what is possible may be very far from the actual truth.  Always keep your objective attention on the requirement that, in civil matters, the burden of proof involves balance of probability.  Allegations of fact require an objectively based rationalized review of the probabilities rather than subjectively based, and often emotionally charged, speculations that amount to mere guessing.

What likely happened and what might have happened are two very different perspectives.

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