In a recent article in TRG Personal Injury Litigation News(March 2012), Kelly Kirkland argued that a clear and convincing standard of proof should be adopted in tort cases where large damage awards were at stake. In other words, the more seriously injured the victim, the more difficulty the ability to recover. According to the article, an increased standard of proof is necessary because the outcome of these suits . . . affect . . . the distribution of existing wealth. A necessary predicate to Mr. Kirkland's proposal is that a tort crisis exists. The problem is that Mr. Kirkland's predicate is simply an urban myth and not based on reality. The number of tort (personal injury) cases has been in steady decline. In 1985, 3,600 tort trials were decided by a judge or jury in U.S. District Court. By 2003, that number had dropped to less than 800.1 According to the National Center for State Courts, tort cases accounted for just 4.4% of all civil cases filed in 2008 and declined by 25% between 1999 and 2008.2 The truth is that most jurors hate lawsuits. The idea that 12 jurors will run amok and vastly overcompensate an injured party, while good politics, is extremely unlikely. Like the Easter bunny, it is talked about a lot but rarely seen.
Leaving urban myth aside, the preponderance of the evidence standard has been a part of the common law since the adoption of the jury system.3 The function of a standard of proof is to instruct the fact finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.4 As Justice Harlan explains: [I]n a civil suit between two private parties for money damages . . . we view it as no more serious in general for there to be an erroneous verdict in the defendant's favor than for there to be an erroneous verdict in the plaintiff's favor. A preponderance of the evidence standard, therefore, seems peculiarly appropriate for, as explained most sensibly, it simply requires the trier of fact to believe the existence of a fact is more probable than its nonexistence before he may find in favor of the party who has the burden to persuade the (fact finder) of the fact's existence."5
Further, this standard normally applies to each element of proof. Thus, the more complex the case, the more occasions where an element must be proven by a preponderance of the evidence, thus decreasing the likelihood that a seriously injured party will be fully compensated.
The "clear and convincing" standard has generally been required only in those cases where the interests at stake are deemed more substantial than the loss of money, such as those involving a significant deprivation of liberty or moral stigma.6 To equate the loss of money to loss of liberty may be fashionable, but it still defies logic.
Mr. Kirkland argued that increasing the standard of proof was necessary because a plaintiff could recover damages under "such vague legal standards" as whether the defendant has acted with "reasonable care." Respectfully, presuming that "reasonable care" is a vague standard, one is hard pressed to understand how it is made less vague if reasonable care is required to be proven with "clear and convincing" evidence as opposed to a preponderance. To the contrary, this simply adds an additional layer of confusion.
Also, who gets to determine what is a "large damage" award? Is this done in hindsight after the award is rendered? Often, the reason that a matter has gone to trial is a dispute between the parties as to the value of the case. Should the jury have different levels of proof depending on how much money they decide to award? For example, if a jury awards less than $500,000.00, the jurors are only required to find with a preponderance, but, if the jurors decide to provide more compensation than that, the level of proof would increase?
Presuming, however, that the level of proof should depend on the amount of economic turmoil confronting the country in any given year, should we adopt a sliding scale of proof depending on the level of the Dow? Perhaps if the Dow Jones Average is trading above 14,000 we could use "preponderance," and if the Dow is below 6,000, we could require "beyond a reasonable doubt" with "clear and convincing" reserved for the remainder.
Notably, Mr. Kirkland focused his proposition solely on tort cases. As we know, the largest verdicts in the country are those in business versus business litigation. Verdicts in business disputes certainly have a much larger impact on the distribution of existing wealth than damage awards to injured victims. Perhaps, then, we could simply be straight forward and have the clear and convincing standard applied only to lawsuits by the poor against the wealthy. That would be easier to determine at the outset and achieve the desired goal of the article.
1AAJ, Debunking the Myths.
3See Riley Hill General Contractor, Inc. v. Tandy Corp., 303 Or. 390, 394-395,737 P.2d 595, 598 (1987).
4Addington v. Texas, 441 U.S. 418, 423 (1979).
5In re Winship, 397 U.S. 358, 371-372 (quotations and footnotes omitted).
6Riley Hill, supra, 737 P.2d at p. 602.