Burden of Pleading

The duty of a party to plead a matter to be heard in a lawsuit. The onus on the defendant to introduce or raise the defense for consideration in the lawsuit. This concept is also referred to as burden of allegation.

The PLEADING burden concerns what a party must put in his or her pleading when a legal proceeding is first instituted. In a criminal proceeding, this initial pleading is an indictment or information, which alleges that a crime was committed. In a murder case, for instance, the prosecutor must plead that the defendant killed the victim. The prosecution thus has the burden of pleading on the issue of whether the defendant killed the victim. On other issues in the case, the burden of pleading may shift to the defendant. For example, if the defendant claims that she or he is insane and thus not responsible for the crime, the defendant has the burden of pleading insanity.

In a civil matter, the initial pleading is a complaint, which initiates a lawsuit. For instance, in a NEGLIGENCE action, the plaintiff has the burden of pleading that the defendant was negligent and that the plaintiff has been injured or damaged by the actions of the defendant. Likewise, in a contract claim, the plaintiff must allege that a contract existed and that the defendant breached the contract. Failure to meet the pleading burden can result in dismissal of the claim.