Shanus-REA suit

[Kenny Cole]

Originally Posted by Peter_Spaeth

Clear and convincing evidence is a tough standard in and of itself. Way north of preponderance. But my point was simply I thought it would generate more discussion, not that the reaction would be cut and dried. You reacted, a few others did, but comparatively few I thought.

My practice is limited to fraud and insurance bad faith cases. I have tried two cases where the jury poured us out on the bad faith claim (preponderance of the evidence standard) and found for us on fraud (clear and convincing evidence standard). As a result, I'm not sure that most juries understand, or even care, about what the various evidentiary standards mean. What they care about, IMO, is the opinions they form early, sometimes even before the evidence begins.

If the jury think someone got screwed, they find in their favor. If they think someone acted bad, they generally find against them. Even in non-equity based cases, it is generally all about equity. That's why, at least here, plaintiffs prefer state court (where you get to voir dire the jury, tell your story, invoke the equity, and hopefully win the case right there) and defendants FAR prefer federal court, were the judge asks about six questions that provide no information about either the case or the prospective jurors, qualifies the jury panel, and tells you to make your strikes.

I have always read, and believed, that you win or lose most cases by the time opening statements are done. In a civil case, that occurs right after voir dire. I have only tried one criminal case in my life -- a murder case -- when I was a young lawyer as second chair -- so I have no idea if that belief holds true there. I didn't watch the Shanus-REA trial so I am really hesitant to make any assumptions about who was right, whether the evidence supported the verdict, whether the judge screwed something up, etc. That's why I have not commented about the result or what it might mean, although I obviously have my own opinions. But I will say that I very much believe that juries generally get it right. Not always, but mostly. My .02, which is exactly what its worth.