Who has the burden of proof?

by Patrick

(Riv.,Ca)

Who has the burden of proof if my claim was denied under(1256)?

A security guard claimed I threatened him, which never happened. My word against his word. What are my chances of a reversal?

Hi Patrick,

You are forcing me to assume facts.

1. That you were fired and did not quit, in which case the burden of proof to prove misconduct belongs to the employer.

2. That the employer cannot prove misconduct.

When it comes to one person’s word against another, credibility is crucial .. and direct testimony vs. hearsay testimony matters to the employer’s ability to prove misconduct.

It is something I would definitely recommend appealing. Reversal is a real possibility, if you are able to represent yourself well.

In the absence of any documentation, credibility is that intangible element which means your story is the story accepted as the truth.

As long as the truth allows for a finding of no misconduct .. you’ll get the reversal.

Documentation adds weight to verbal testimony and removes the need to make a decision on credibility alone. When you see words like “preponderance” in a decision .. there was probably documentation in addition to testimony.