1. The opinion in this case speaks of the “burden of proof of contributory negligence.” In this book, we use the term “burden of persuasion” when we are referring to the kind of burden involved in Alexander. There is another kind of burden the burden of initially putting in evidence on an issue, without which the issue is not in the case at all. This kind of burden we call the “burden of production.” The two burdens are distinct, but the term “burden of proof”

often is used to mean either of them. For this reason we avoid it. Ordinarily the burden of production and the burden of persuasion on an issue are placed on the same party. But not always. For example, when a defense is50one that is seldom raised, it might be a waste of time to require plaintiff in every case to introduce evidence refuting it; the burden of production would be placed on defendant. But once there is enough evidence on the issue to go to the jury, the court might rule that plaintiff should have the burden of persuasion that is, establishing that the defense is not valid as plaintiff does on most aspects of her case.