Burden mismatch
A posture mismatch in which a proposition assumes an allocation of the burden of production or persuasion that differs from the allocation in the forum, and at the stage, where the motion is filed.
First used in Right Law, Wrong Stage
Burdens differ by forum even when the stage is nominally the same.
In federal court, Celotex lets a summary judgment movant that does not bear the burden of persuasion at trial discharge its initial burden by showing an absence of evidence for the nonmovant's case. Where the movant bears the trial burden, Adickes requires it to establish the element affirmatively. These are two routes, not a rule and an exception.
California's Aguilar lets a defendant show that the plaintiff does not possess, and cannot reasonably obtain, needed evidence, but requires the defendant to present evidence to that effect. A California motion that relies on the federal pointing-out route misstates the movant's burden in the court where it is filed, even if every citation in it is accurate.
Related terms
Related frameworks
Posture Mismatch Taxonomy
A citation can be real, accurate, good law and on point and still be wrong, because the proposition it is offered for depends on a standard, record, burden or forum different from the motion's; element definitions and substantive rules usually carry across stages, sufficiency holdings do not.
Pre-Filing Completeness Protocol
Research is complete enough to file when every element of every claim at issue has its governing standard, controlling authority, record support, adverse-authority check and rejected-argument check recorded, and every one of those cells ends in a citation or a logged search that found nothing.