In coverage litigation, no issue is more overlooked — yet more critical — than the burden of proof. The casebooks are full of instances when an insured or an insurer lost its case solely because it failed to adequately address the burden of proof during case workup and trial preparation. Sadly, the insured or the insurer may have possessed the evidence to sustain its burden of proof but failed to come forward with it, merely out of unawareness that the law placed the burden upon it.
To avoid this trial misstep, attorneys must be cognizant of the various burdens courts and the Legislature place upon the parties, how those burdens shift during the course of litigation and what issues are still the subject of confusion.
