Review of Clear and Convincing Evidence Standard

Ironically, I'm going into an evidentiary hearing tomorrow on an inter vivos gift which predated the death of the gifter (donor). The case law (circa 1955) is that such a gift must be proven by a "clear and convincing evidence." This probably isn't the real legal standard because there has been a series of cases in diverse cases (e.g., fraud) which have recharacterized the standard of proof as being "preponderance of the evidence." (Briefly, the modern view is that prepondeance of the evidence applies to virtually everything that doesn't have a statutory directive to the contrary. Although I may be surprised tomorrow to find that the judge applies the wrong standard.)

Nonetheless, relative to the "23" judges who have looked at the Schiavo case the reviewing standard probably is something like:

The 'clear and convincing evidence' rule is one for the guidance of the trial court and all that is required on appeal is that the finding finds substantial support in the evidence. Viner v. Untrecht, 26 Cal.2d 261, 267, 158 P.2d 3; Stromerson v. Averill, 22 Cal.2d 808, 815, 141 P.2d 732.

In re Raphael's Estate 115 Cal.App.2d 525, *530, 252 P.2d 979, **982 (Cal.App. 1 Dist.1953)

In other words, it is a "substantial evidence" standard, which means that once the trial court makes a decision, the appellate court's objective is to find a basis for affirming the decision ceteris paribus.

So, for anyone who wants to trot out all the judges who have decided in favor of Michael Shiavo's position, realize that the project of appellate courts is to find reasons to affirm the trial cout's decision. (Aside, of course, from Florida trial court decisions favoring Republicans during the 2000 election, in which case a completely different standard of review is applied. (I know, cheap shot.))