Short answer. The two obligations behave differently. Your burden of proof, the duty to establish your claim by the amount of evidence the law requires, never shifts away from you. But the burden of evidence, the duty to keep presenting enough to maintain a prima facie case, can shift back and forth as the case develops.
What the law says
Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his or her claim or defense by the amount of evidence required by law. Burden of proof never shifts.
Rule 131, Section 1 — Burden of proof and burden of evidence. Read the full provision →
What the law says
Burden of evidence is the duty of a party to present evidence sufficient to establish or rebut a fact in issue to establish a prima facie case. Burden of evidence may shift from one party to the other in the course of the proceedings, depending on the exigencies of the case.
Rule 131, Section 1 — Burden of proof and burden of evidence. Read the full provision →
Burden of proof: fixed on you for your own claim
The burden of proof is defined as the duty of a party to present evidence on the facts in issue necessary to establish his or her claim or defense by the amount of evidence required by law, and the rule is explicit: Burden of proof never shifts. If you are the plaintiff asserting a claim, you carry that burden for your claim from the first day of the case to the last — the other side responding to your evidence does not transfer your obligation to them.
Burden of evidence: the part that actually moves
The burden of evidence is different: the duty of a party to present evidence sufficient to establish or rebut a fact in issue to establish a prima facie case. This is the practical, moment-to-moment obligation to keep the scale tipped in your favor on a given point. Once you have presented enough to make out a prima facie case on an issue, the burden of evidence on that specific point can shift to your opponent to respond — but this is a separate, shifting obligation from your underlying burden of proof.
Why the distinction matters in a real hearing
In practice, this means the back-and-forth of a trial — your evidence, their rebuttal, your response to that rebuttal — is largely burden of evidence moving between the parties as each side reacts to what the other has shown. But at the end of that exchange, the court still asks whether the party who originally had the burden of proof actually met it by the required quantum. Winning the burden-of-evidence exchanges along the way does not substitute for having met your burden of proof overall.
What happens if neither side clearly wins the exchange
Because the burden of proof never shifts, a case where the evidence ends up genuinely balanced, or where the party carrying that burden simply never produced enough, is resolved against the party who bore it — not by defaulting to whoever spoke last or presented more exhibits. Understanding which of your obligations is fixed and which is fluid helps in deciding, at each stage of a case, whether more evidence is actually needed or whether the point has already been sufficiently made.
Related provisions
- Rule 131, Section 1 — Burden of proof and burden of evidence
- Rule 131, Section 2 — Conclusive presumptions