Michael Sean Quinn*

I realized the other day, that there was a simple, and upon momentary reflection, an obvious point about litigation, something I have used in practice for 35 years and about which I have been continually lecturing, writing, and teaching for nearly that long. If you think about presumptions in litigation, there are basically two types: rebuttable and irrebuttable.  (The latter type is often also called presumption of law, by which it is intended to say that, as a matter of law, this presumption cannot be overcome by empirical considerations.) 

My self-revelation came to me the other day as I read a clause about presumptions regarding the ownership of property which will arise most frequently in certain types of divorce cases,  but actually in any divorce-related case where there is a gift during marriage, and–I guess–at many other times as well.

Here is what I discovered.  A rebuttable presumption can be (2) overcome by means of empirical evidence. Moreover, (3) the amount of evidence it takes to over some such a presumption is quite law–anything but the obviously false–say, because contradictory–or the manifestly unreasonable. In addition, (4) when the presumption is overcome in this way, it “vanishes,” as it were, and is no longer of any use in the litigation.  

One can immediately see why this is true. If the side which it favored would be arguing “This case once involved a rebuttable presumption, so, although it has been rebutted, you should decide this case in our favor because of what was once true.” Of course, by the same token, the fact that there was a rebuttable presumption once, and it is now gone, does not suggest that favor should be shown the party that over came it.  (“We rebutted a presumption that proposition p is true, so you should conclude now that p false.”) What we learn from all this is that the idea of being-a-rebuttable-presumption is part of the law of evidence and not simply part of the law of civil procedure, except to the extent that the law of evidence is part of that law, as well as a separate species of the family of jurisprudence. 

So, you might ask, what difference does it make? I’m not sure it makes any difference to the insightful. I, however, was blind. My blindness preventing me intimately and immediately associating the idea of rebuttable-presumption-elimination with the production of very weak evidence and therefore distorted my anxieties about how to think about pieces of litigation when I was in the midst of them. I never really realized that once rebutted, a rebuttable presumption vanishes and any attempt to refer to it again is improper. I therefore never thought about obtaining an instructional ruling from the trial judge at the beginning of a trial forbidding any reference to the now undermined and now non-existent presumption.

*Michael Sean Quinn
Quinn and Quinn

1300 West Lynn Suite 208
Austin, TX 78703
Office Phone: 512-296-2594
Fax: 512-344-9466