Burden of proof is a slippery phrase. It is used to describe the burden of producing evidence sufficient to justify a finding or the burden of persuading the trier to make a finding or both these burdens.' Thayer noted the confusion in the judicial opinions caused by this loose use of language. In his essay, in attempting to bring order into the subject, he stated first that the burden of persuasion is fixed by the pleadings or their equivalent at a stage of the proceedings preliminary to trial and second, that once fixed, it never shifts. These pronouncements have received verbal approval in numberless judicial opinions. The Tennessee courts have joined this chorus.
Edmund M. Morgan,
Burden of Proof and Presumptions in Will Contests in Tennessee,
5 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol5/iss1/6