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An affirmative converse instruction refers to an hypothesized ultimate fact issue which, if true, defeats a plaintiff's claim. A defendant enjoys the option of submitting his/her theory of the case through the use of an affirmative converse instruction. However, when the defendant does s/he must carry his/her burden of persuasion by producing independent evidence supporting those facts submitted in the instruction. Such facts must be sufficient in law to defeat plaintiffs' claim.
An affirmative converse instruction is appropriate where the verdict director assumes as true or omits a disputed ultimate issue, but its use under other circumstances is questionable in that such use tends to violate one of the numerous other prohibitions relating to affirmative converse instructions.[Duncan v. First State Bank, 848 S.W.2d 566 (Mo. Ct. App. 1993)].