Burden of Proof

Q: I keep reading your column, I don’t know why, looking for some semblance of integrity, of equity, in your responses. Apparently, you’re nothing more than an apologist for carriers.

Look, shippers don’t file (loss-and-damage) claims out of a desire to take carriers for a ride. They file claims because they’ve been injured by careless carriers. Sure, sometimes you favor the shippers, but, at least as often, you simply make excuses for the carriers. You tell the shipper, basically, “Sorry, you don’t have a valid claim.”

That’s bull. If the shipper files a claim, he has a claim. Carriers find all sorts of excuses for declining perfectly valid claims, which is bull, too. Why do you keep supporting their bull? Get on board; the shipper says it gave the carrier goods in good condition, they didn’t show up or they showed up damaged, the carrier is liable, period. That’s the law.

Quit making excuses for the carriers. If they decline a claim, usually they’re wrong. How about telling it like it is?

A: Wow. I’ve been accused of a lot of things, but this is the first time I recall someone calling me an “apologist” for either side in shipper-carrier disputes.

It isn’t so. I do tell it like it is. But “like it is” doesn’t always necessarily favor the shipper/claimant, who isn’t, despite your patent bias to the contrary, invariably right.

The fact is that some shippers do indeed seek to “take carriers for a ride” with spurious claims. And others, in all good faith, nevertheless file claims that are legally (and sometimes factually) insupportable. I call those out, and I always will.

I’m reminded of the Casey Anthony trial. “Tot Mom,” as legal commentator Nancy Grace calls her, was accused of murdering her 2-year-old daughter, largely because she’d allegedly exhibited great disinterest in her child’s fate while claiming the child was simply missing, and stood charged with lying repeatedly to the police, her parents and seemingly anyone else who would listen.

But, although the prosecution proved the disinterest and the lies, it failed to prove the homicide, and the jury — much to public disapprobation — acquitted Casey Anthony of that. Great shock in the news media; Grace, in particular, had a field day decrying the verdict.

Thus it is, however; and I can’t disagree with that jury. Lies and non-caring don’t automatically equate to murder.

Neither do filed claims automatically equate to carrier liability. In court, there’s that thing about “burden of proof.” As to criminal cases, such as the Anthony trial, it translates to proof “beyond a reasonable doubt.” In claims cases, with only money at stake, decisions are based on a much lower standard, “a preponderance of the evidence.” But the burden doesn’t disappear; it’s just less.

And the shipper who comes to court unable to meet that burden isn’t going to prevail. In such cases I discuss, I’m “telling it like it is.”

Now, there are always those who’d prefer to dispense with the niceties of our American legal system. Many folks seemed more interested in a lynching than actual judicial process in the “Tot Mom” case. And you, in a lesser vein, seem equally dedicated to the view that shipper claimants should always be given unquestioned precedence over carriers solely because of their status.

If the words “kangaroo court” don’t come to mind, they should.

There are, to be sure, other systems around the world, and elsewhere in human history. In some, the mere accusation is sufficient to convict unless the defendant can offer proof — and a lot of it — to the contrary. In others, the standing of the accuser alone carries sufficient weight that the accusation will stand over even the strongest evidentiary showing.

But if you’d prefer one of these, you’re in the wrong place at the wrong time. In the modern U.S., it’s all about proof — not speculation, not hyperbole, not other malfeasances, just plain old proof.

Sure, I’m idealizing a little. The reality is that injustices, both ways, are regrettably perpetrated. Still, at least we try, if sometimes vainly, to prevent them, to hold to a system in which the lowliest can win over even the highest.

You want to call me an apologist for our judicial system; I not only admit it, I proudly proclaim it. But don’t ever call me an apologist for either shippers or carriers. That I reject completely.

Consultant, author and educator Colin Barrett is president of Barrett Transportation Consultants. Send your questions to him at 5201 Whippoorwill Lane, Johns Island, S.C. 29455; phone, 843-559-1277; e-mail, BarrettTrn@aol.com. Contact him to order the most recent 351-page compiled edition of past Q&A columns, published in 2010.
 

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