Synopsis : Many parties to ERISA litigation and arbitration pay lip service to the burden of proof, put on their respective cases and leave it to the trier of fact to decide which side deserves the victory. Burdens of proof have become increasingly important, however, as procedural and substantive issues become more complex, and judges often have less time to deal with the subtleties in ERISA litigation. Burdens of proof thus demand more attention.

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It is easy to glaze over a basic tenet of law that is getting more attention — Who has the burden of proof?

Emphasizing burdens of proof can mean the difference between winning or losing, and potentially millions of dollars in damages. Earlier this year, Putnam Investments LLC stated its intention to file a petition with the U.S. Supreme Court asking the high court to weigh in on who bears the burden of proving injury and whether retirement investment choices were prudent in ERISA fiduciary breach cases. (See Brotherston v. Putnam Investments, LLC, No. 17-1711 (1st Cir. Oct. 15, 2018)). This is not the first time that the Supreme Court has been asked to take up this issue as there is a significant split among the circuits—certain circuit courts have said causation is an element of the cause of action, other circuits have said it is the plaintiff’s burden to prove that the harm was attributable to the fiduciary, and still other circuits have said that the burden shifts to the fiduciary to show that it did not cause the harm. This is but one example where the burden of proof can have a significant effect on the outcome of a case.

Also, as cases become more complex, and judges and arbitrators are asked to navigate through more evidence, weigh the credibility of witnesses testifying by deposition video and transcript, and parse through heightened attorney showmanship, burdens of proof are likely to get more attention. A U.S. District Court Judge recently admonished an attorney for glazing over the evidence necessary to meet his burden, stating “I am not co-plaintiff counsel . . . I’m [not] supposed to now go find evidence to supplement your record. That’s totally improper.” (See Law360, 12/4/18, 10:40 PM, https://www.law360.com/articles/1107974 ).

There is no denying that employee benefit claims can include emotional appeals, given the personal relationship aspect of employment and the financial consequences of an award of fewer benefits than expected. When faced with emotional appeals in the context of increasingly complicated laws and regulations, employers and fiduciaries should remember that they can make their case on a burden of proof procedural ground, i.e., “plaintiff should lose because, notwithstanding his emotional appeal, he has not met his burden of proof under the law.”

A judge or arbitrator overwhelmed by complexity may be more receptive than counsel thinks. No party should ask the trier of fact to define his or her case. It is a claimant’s job to present his or her case with specificity and within the confines of the substantive and procedural law.