http://www.dangerousdoglaw.com

Risk of Nonpersuasion

The risk of nonpersuasion is simply who has the burden of going forward with the evidence.  This is a critical issue, because if you have the risk of nonpersuasion and you do not go forward with the evidence, the other side wins. The burden of nonpersuasion is different than the burden of proof.  The burden of proof is that quantum of proof required for a factual issue to be determined by the trier of fact.

The risk of nonpersuasion was a very central issue in Oliver v. Clay County and beautifully illustrates the concept.  There, the initial hearing was before the Fire Chief, who took the position that it was up to the dog owner to prove that her dogs were not dangerous, and if she did not, by default they would be classified dangerous. The county did not put on one witness or admit one piece of evidence. Yet the Fire Chief found the dogs dangerous based on the owner's failure to prove they weren't.

This position flies in the face of due process, which requires the government, after seizing and impounding a dog, to have the burden of going forward with the evidence. If they fail to put on any evidence, the owner gets back the dog. This point was argued to the court in our Memorandum of Law In Support of Plaintiff's First Amended Complaint.

Applicable Case Law

Colorado Dog Fanciers v. City and County of Denver, 820 P.2d 644 (S.Ct. Colo. 1991) - The court held that the government had the risk of nonpersuasion or going forward with the evidence in a determination of whether a dog was a pit bull under an ordinance that made possession of such a dog illegal.