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Could someone please explain the difference between the two to me and how they play out in summary judgment?

Persuasion: the burden on plaintiff to prove by a preponderance each element of a claim.
Production: the burden to introduce evidence such that a reasonable finder of fact could decide in a party's favor by a preponderance of the evidence (a.k.a., a genuine issue of material fact is in dispute).

At summary judgment, movant is tasked under 56(e) w/ showing non-movant will be unable to meet his production burden on at least one element. Non-movant must, under 56(e)(2), provide specific facts, not simply by referring back to his pleadings, w/ affidavits or otherwise, that show a genuine issue of material fact requires resolution by a fact-finder.

2L. This is what I remember about the burdens. Got an A- so clearly there was room for improvement.

MrKappus wrote:Persuasion: the burden on plaintiff to prove by a preponderance each element of a claim.
Production: the burden to introduce evidence such that a reasonable finder of fact could decide in a party's favor by a preponderance of the evidence (a.k.a., a genuine issue of material fact is in dispute).

At summary judgment, movant is tasked under 56(e) w/ showing non-movant will be unable to meet his production burden on at least one element. Non-movant must, under 56(e)(2), provide specific facts, not simply by referring back to his pleadings, w/ affidavits or otherwise, that show a genuine issue of material fact requires resolution by a fact-finder.

2L. This is what I remember about the burdens. Got an A- so clearly there was room for improvement.

Ok, that colors things in a bit.

So in most, the plaintiff normally has the burden of persuasion and the defendant has the burden of persuasion when he wants to claim affirmative defenses, right?

I've read the burden of production is important all throughout the trial as it shifts from plaintiff to defendant and that burden of persuasion isn't important until the end of trial.


Anyone else care to give me a hypothetical that involves these elements to help me better understand it all?

Also, how do you know exactly who has the burden of persuasion? In Celotex v. Catrett, the corporations interestingly enough were sued but had the burden of persuasion to prove that their asbestos DIDN'T kill her husband.

^ I don't think what you said here is quite accurate. The persuasion burden on Celotex wasn't to show by a preponderance that the asbestos didn't kill the plaintiff's husband. It was to show by a preponderance that there were no genuine issues of material fact. While the production burden shifts to non-movant after it's met, the persuasion burden does NOT shift.

To amend my first post ITT:

Persuasion: burden to show something by a preponderance.

MrKappus wrote:Persuasion: the burden on plaintiff to prove by a preponderance each element of a claim.
Production: the burden to introduce evidence such that a reasonable finder of fact could decide in a party's favor by a preponderance of the evidence (a.k.a., a genuine issue of material fact is in dispute).

At summary judgment, movant is tasked under 56(e) w/ showing non-movant will be unable to meet his production burden on at least one element. Non-movant must, under 56(e)(2), provide specific facts, not simply by referring back to his pleadings, w/ affidavits or otherwise, that show a genuine issue of material fact requires resolution by a fact-finder.

2L. This is what I remember about the burdens. Got an A- so clearly there was room for improvement.

My take:

Burden of production - producing evidence that *taken as true* would support your argument.
Burden of persuasion - How much you should persuade the judge/jury that your evidence is true, e.g., by a preponderance of the evidence, by clear and convincing evidence, etc.

As to summary judgment, remember that judges do not weigh or consider the credibility of the evidence. They simply take every piece of evidence as true.

Under _Addickes_/_Celotex_ (I hope I get the correct case name):
a) If you move for summary judgment and you have to establish the prima facie case, you have to produce evidence that, taken as true, would prove all the elements of your prima facie case, even when the court gives the opposing party *the benefit of doubt*.

b) if you move for summary judgment and the opposing party need establish the prima facie case,

i) if the opposing party has produced evidence that, *taken as true*, would prove all the elements,
you have to submit evidence that negates at least one element of the prima facie case, when you move for summary judgment.

ii) if the opposing party does not produce evidence that support one element of her prima facie case,
you don't have to submit anything when you move for summary judgment. All you need is point out that the opposing party does not have evidence to support one of the elements of her prima facie case.

Examples: Addickes/Celotex

_Addickes_-like example:
For example, the restaurant said the person did something in the restaurant and submitted an affidavit from the restaurant owner.

To move for summary judgment, that person must submit, for example, an document showing that the person was in fact on a plane to Russia at the alleged time of crime. [counter the restaurant's evidence]

[The judge would decide if there is any genuine issue of fact.]

For example, in _Celotex_, the company submitted an affidavit to support its prima facie case, but that affidavit was inadmissible.

So, the opposing party can move for summary judgment by pointing out that the company does not produce sufficient evidence to support its prima facie case. The opposing party does not have to submit any evidence in this case.

Edit: correcting spelling errors.