n 1988, in an effort to restrict the availability of punitive damages in tort litigation, the California Legislature adopted what is arguably the most stringent standard in the country for awards of punitive damages. In addition to mandating that the defendant's conduct be either intentional or "despicable," the Legislature also significantly raised the bar by requiring plaintiffs to prove such claims by clear and convincing evidence. Civil Code Section 3284.

Unfortunately, the bar was promptly "lowered" by the Book of Approved Jury Instructions committee when it adopted a lukewarm definition of clear of convincing evidence.

Historically, courts have required proof by clear and convincing evidence in cases involving fundamental constitutional rights. Recognizing that the function of a standard of proof is to instruct the fact finder about the degree of confidence we should have in the correctness of factual conclusions for a particular type of adjudication, the courts require proof by clear and convincing evidence "where particularly important individual interests or rights are at stake." Weiner v. Fleischman, 54 Cal.3d 476, 487 (1991); Herman and MacLean v. Huddleston, 459 U.S. 375, 389 (1983).

For example, recognizing that "grave consequences flow from the permanent severance of the parent-child relationship" and that parenting is "a fundamental right which should be disturbed only in extreme cases," the California Supreme Court has held that the state must meet the clear and convincing evidence standard to terminate parental rights. In Re Angelia P. 28 Cal.3d 908, 916 (1981). The standard has also been used at involuntary civil commitment hearings, in deportation proceedings and in defamation cases where First Amendment rights are involved. Weiner, 54 Cal.3d at 487; Newton v. National Broadcasting Co., 930 F.2d 662 (9th Cir. 1990).

oth the California Supreme Court in Weiner and the U. S. Supreme Court in Huddleston, recognized that use of this standard demonstrates society's preference for the position of the party opposing the imposition of such damages. "A preponderance-of-the-evidence standard allows both parties to share the risk of error in roughly equal fashion. Any other standard expresses a preference for one side's interests," wrote the Huddleston court.

The California Supreme Court used powerful adjectives in describing the burden of proof that must be met: The evidence must be “so clear as to leave no substantial doubt” and “sufficiently strong to command the unhesitating assent of every reasonable mind.” Sheehan v. Sullivan, 126 Cal.189, 193 (1899). That precise formulation has been reiterated by appellate courts decade after decade. See, e.g., People v. Caruso, 68 Cal.2d 183, 190 (1968); In re Terry D., 83 Cal.App.3d 890, 899 (1978).

Imagine the dismay of civil defendants at learning that their jury will, instead, be instructed pursuant to BAJI 2.62, which states that clear and convincing evidence merely means “evidence of such convincing force that it demonstrates, in contrast to the opposing evidence,

a high probability of the truth of the facts for which it is offered as proof. Such evidence requires a higher standard of proof than proof by a preponderance of the evidence. You should consider all of the evidence bearing upon every issue regardless of who produced it.”

hat is particularly galling about this watered-down, lukewarm instruction is that it has been criticized

its present form, BAJI 2.62 reduces the protection that the clear and convincing standard was designed to create.

It was first criticized in Marriage of Weaver, 224 Cal.App.3d 478, 487 (1990), in which it was described as "misleading," "unnecessarily limited" and suggesting an evidentiary test "which is significantly less rigorous" than the proper formulation described by the Supreme Court in Angelia P. Thereafter, in Roberts v. Ford Aerospace 224 Cal.App.3d 793 (1990), the Court of Appeal ruled that BAJI 2.62 was technically a correct statement of the law and rejected the challenge to the instruction, which was raised for the first time on appeal, stating that if the defendant "desired a more expansive instruction on the issue, it could have submitted one."

In Mock v. Michigan Millers Mutual Ins. Co., 4 Cal.App.4th 306 (1992), the Court of Appeal again critized the instruction but, relying upon Roberts, held: "[W]e cannot conclude that it was error to give it in the absence of a request by Michigan Millers for a different instruction."

This "technical" endorsement of BAJI 2.62 continued in Weeks v. Baker and McKenzie, 63 Cal.App.4th 1128 (1998), in which the court noted that no previous decision had found that the use of the instruction was "so misleading as to require reversal." The only appellate decision unequivocally endorsing BAJI 2.62 is Mattco Forge, Inc. v. Arthur Young and Company, 52 Cal.App.4th 820 (1997), in which the majority cited the appropriate standard articulated by the Supreme Court in Sheehan and Angelia P., but then concluded that "without an additional mandate from the Supreme Court or the Legislature, BAJI 2.62 remains a correct instruction."

n declining to follow clear Supreme Court precedent, the Mattco majority—over a vigorous dissent—rather weakly offered that the Supreme Court had not clearly held that "to define clear and convincing correctly," the more powerful "phraseology is mandated." Presumably, the Supreme Court assumed, when it articulated the standard the lower courts would follow it without being specifically instructed to do so.

BAJI 2.62, in its present formulation, flies in the face of nearly 100 years of Supreme Court precedent and substantially reduces the evidentiary protection that the clear and convincing evidence standard was designed to create. The instruction should be revised to define clear and convincing evidence as "clear, explicit and unequivocal evidence that is so clear as to leave no substantial doubt and that is sufficiently strong to command the unhesitating assent of every reasonable mind." Until this revision takes place, defense practitioners should request this proposed instruction to preserve the issue for appellate review.