In a trial one party always has the affirmative burden of persuading the finder of fact to adopt his allegations as true. This burden is met by inducing a particular degree of belief in the mind of the fact finder.'Manifestly, absolute truth is not attainable in a lawsuit. Rather certain facts are found to exist from all the evidence presented and these findings labeled true for the purposes of the case. Since different factual situations require different measures of persuasion, it is necessary that the fact finder, whether judge or jury, know and understand the particular measure applicable in order to make a correct determination as to a fact in issue. If trial is by jury, it is the duty of the judge to instruct to this end. The purpose of this note is to examine language used in instructing as to the measure of persuasion or prescribed degree of belief as approved by Tennessee courts. The allocation of the burden of proof or the effects of a presumption upon such burden are not treated herein except to the extent necessary to determine their effect upon the language used.
Kenneth L. Roberts and William M. Sinrich,
Variable Verbalistics -- The Measure of Persuasion in Tennessee,
11 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol11/iss4/29