10 August 2005

Tongue in Cheek: Diets and Establishing the Burden of Proof

Abstract: You know you're too deep into law school when you begin thinking about your diet in legalistic terms.

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When you undertake a diet, it is very likely that a significant other (including--but not limited to--a close friend, wife, or domestic partner) (hereinafter “S.O.”) will be involved in your efforts. Just as in a judicial setting, it is imperative to know the burden of proof or persuasion in a given matter, it is equally important to know what your burden of proof shall be in order to show to the S.O. or others, as trier(s) of fact, that you are truly in the process of accomplishing your goals. Hence, when you approach the S.O. on this issue, you may wish to consider the following guidelines as to each level of the evidentiary hierarchy:

• Probable Cause: You’ve been eating cheeseburgers and pizza all day, and chasing them down with regular Cokes. But someone managed to catch you one time in the middle of the night, sipping a SlimFast shake while watching a Jerry Springer episode. There is probable cause to support the contention that a diet has occurred and that you’re the one committing it.

• Preponderance of the Evidence: You concede under cross-examination that in the recent past, you’ve ingested a cup cake or two. And a bag of popcorn. And a double quarter-pounder (super-sized). You’ve even been caught nibbling off of the double-layered chocolate cake your S.O. was reserving for her nephews. (Well, all right, you’ve made the cake into the similitude of “PacMan,” but the evidence was circumstantial.) Still, if you’ve been drinking Diet Coke all day, have at least one good low-calorie meal, and follow it up with a few carrot sticks, you may be able to convince the fact-finder that more likely than not, you have been dieting.

• Clear and Convincing: Many of your meals are low-calorie. Your weight has been trending lower, although there are some up-ticks here and there. One time you’re caught inside of a McDonald’s, and when asked what you are doing there, you immediately corrected your order and asked for a Caesar salad. Your opponent can raise doubts over whether you are truly dieting; even so, the odds are largely in your favor.

• Beyond a Reasonable Doubt: You’re close to meeting your desired weight. Occasionally you’ll still have a french fry or two from your toddler’s Happy Meal. Your opponent may try to put forward a theory that you still eat mixed nuts in the middle of the night and fantasize about cheesecake dripping with wild cherry sauce, but you can respond that this is preposterous…and besides, you’re allergic to nuts. Counsel would be able to tell the jury with a straight face that you even look at the nutrition labels on bottled water to determine whether you are in keeping with your daily caloric intake. Under this burden, it would take a reasonable jury no more than a few hours to agree with you.

• Absolute Burden: You walk into the courtroom below the minimum weight recommended by the Surgeon General and scare the wits out of most of the jury simply by sitting at counsel’s table. At least three expert witnesses (all of whom are doctors who know the local standard of care for prescribing a diet regimen) all testify that you need to start increasing your calories immediately. One lay-witness testifies that you had already forgotten what a chocolate torte was, and when asked, you told him it was the conversion of cocoa plants in Brazil without the owner’s permission. Your opponent is too stunned to object to the hearsay and waives the point. Even the court takes judicial notice of your condition and offers you a ham sandwich (taxing it as costs against the other side). You’ve met the most stringent of burdens as to both production and persuasion.

With the above in mind, the following is a rough outline of the various burdens you will encounter when dealing with various individuals:

• Co-workers, distant relatives: You can generally get away with a probable cause standard, but the nosier of your associates may rise to the preponderance level, so some caution would be in order.

• Closer relatives, but not inside your immediate family (i.e., nephews, grandparents): You will be working inside a range that will fall largely under a preponderance standard. A few will rise to the clear and convincing level (for example, your uncle Ralph, who lifts weights in his spare time and looks to Jack LaLane as his childhood hero). Others will not care at all; your burden is diminished as to these individuals.

• Your S.O. and immediate family: You should presume a reasonable doubt standard unless the evidence begins to preponderate otherwise. For example, if your spouse one day makes you an pumpkin pie and adds a liberal amount of whipped cream, then henceforth you may be able to operate under a clear and convincing standard.

• Life insurance carriers, your personal physician, yourself: Beyond a reasonable doubt. A few insurance companies may even seek to impose an absolute burden. And of course, you have to live with yourself 24/7/365/etc., and there’s no getting away from that. (Not unless one has an out-of-body experience, but that’s well beyond the scope of this discussion, and will have to be saved for a later time.)

• Door-to-door salesmen, outright strangers, opposing counsel (as to other matters), the photographer at Wal-Mart: No burden whatsoever.

Appellate procedure. If you are assessed under the wrong standard, you could try to argue there was an abuse of discretion and that (s)he should try to re-examine your situation de novo without a presumption of correctness, but then, that person will look at you as if you were from another planet and wonder what in creation you are talking about. So perhaps it would be better to leave the matter alone and simply diet with increased zeal (so long as your efforts remain within reasonable or prescribed limits).

Conclusion. Factoring in the burden of proof when executing a diet and exercise plan may not cause you to lose additional pounds. But it may reduce the stress and friction you may receive while en route to your destination, which in turn will allow you to focus your attention towards weightier matters. Such as pondering whether a theft of $500 is a misdemeanor or a felony, or whether you should file a Rule 11 motion against opposing counsel because she gave you a very strange look during a summary judgment hearing.

Special Disclaimer. I did mention this was meant to be humor, right...?

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