Orange County NC Website
Browse       Search
71 <br /> DRAFT <br /> 166 <br /> 167 Lydia Wegman:What would make it legally insufficient to leave out the sentence about the burden of persuasion. 1 <br /> 168 understand you to say that we are just going to follow what they are doing. <br /> 169 <br /> 170 Hunter Spitzer: Why it is insufficient without the burden of persuasion, it is because then we can't rely on their standard? <br /> 171 <br /> 172 James Bryan: It is not legally insufficient. <br /> 173 <br /> 174 Lydia Wegman: It would not be legally insufficient if we deleted that sentence, is that correct? <br /> 175 <br /> 176 James Bryan:Yes. <br /> 177 <br /> 178 Lydia Wegman: I understand why you need a statement about burden of proof and where it falls, but it's that last <br /> 179 sentence that's hanging me up. <br /> 180 <br /> 181 James Bryan: I would encourage you to allow me to explain burden of proof, burden of persuasion, and burden of <br /> 182 production. It's one thing to think it's legally sufficient so we can do it, but we should all have our own reason. If I had <br /> 183 my way,we would just rely on the statutory language, but that is not how our LIDO is set up. Our UDO is hundreds of <br /> 184 pages reiterating and expanding upon the statutes. We talk about burden of proof, but we don't use those words so <br /> 185 much and use the statutory language some but it's really a modification of everything. Durham has their own <br /> 186 modification, different but fairly similar. The burden of proof is an umbrella term that is usually broken down into burden <br /> 187 of production and burden of persuasion. Production could be the tangible items,the witness or the documents, and the <br /> 188 persuasion could be the arguments that support that. It could also be in different context that the burden of production <br /> 189 is when the burden shifts. If you were in civil court in the state of North Carolina,you would file a lawsuit with the first <br /> 190 motion of summary judgement.You would have a hearing to ask the judge to throw out the case just based upon what <br /> 191 you have because you don't need a trial. This has a different standard for it than a trial. There you have a different <br /> 192 burden of production than you would have at the trial. In that context, it has a different meaning, so you have to look at <br /> 193 what you have here. I think what Durham does is fine. It is a little wordy, not very user friendly, and has too much <br /> 194 legalese, but I don't believe ours to be the gold standard either. There are hundreds of pages in the UDO and there are <br /> 195 a lot of things that I don't think are best practices, but if it's not being changed right now it has opened up a Pandora's <br /> 196 box to mess with everything. By peeling away at the UDO,you bring up other issues and that's how the reasonable <br /> 197 accommodation came in. I think the staff has done a good job about addressing the problems that came up and the <br /> 198 next thing was this burden of persuasion and how to get it to either to match Durham's or to meld with ours. <br /> 199 <br /> 200 David Blankfard: In our UDO is there a definition for burden of persuasion? When I looked it up,there is an article from <br /> 201 Law Cornell that says the definition for burden of persuasion. Can we have that put in as this is what this means, along <br /> 202 with the need for factuals, information, and for it to be presented? <br /> 203 <br /> 204 James Bryan: Yes, but I recommend against it. It makes sense to clarify, but if you have a definition of it,you are <br /> 205 defining a term used by Durham and Durham might define it differently and you therefore lose that benefit from it. If you <br /> 206 are silent then you could say, yes,that is what we meant. I think you are not at a risk when you say,yes,that is what <br /> 207 we meant because I think burden of persuasion and burden of proof is so well established in the law that is it <br /> 208 competent, material, substantial evidence for the standards found in the UDO. <br /> 209 <br /> 210 Hunter Spitzer: I am still confused with how burden of persuasion is distinct from burden of proof. How is adding <br /> 211 persuasion something more than just burden of proof? What does it add that we wouldn't have without it, and what <br /> 212 makes that different than just the regular burden of proof defined in case law? <br /> 213 <br /> 214 James Bryan: I think what I am hearing is that you've added that the burden of proof is broken down into production <br /> 215 and persuasion. Production is the documents and persuasion is the arguments. In the LIDO,we are explicit that the <br /> 216 burden is on the applicant to produce the documents but didn't say anything about the arguments. It was implicit and <br /> 217 this is making it explicit. <br /> 218 <br /> 219 Hunter Spitzer: This definition is only added in 2.10.3 and 2.11.3? <br /> 220 <br />