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How Does The Clear and Convincing Evidence Standard Work in Texas?

How The Clear and Convincing Evidence Standard Works

When plaintiffs accuse defendants of committing especially bad acts, courts use a higher standard of proof to evaluate how compelling the evidence is. In this article, Texas personal injury attorney Michael Grossman will explain what the clear and convincing evidence standard is and how it works.

Questions Answered on This Page:

  • What is the clear and convincing evidence standard of proof?
  • How does this standard differ from the burden of proof required for other bad acts?


Before you can really appreciate the clear and convincing evidence standard, it helps to first understand the more lax standard called preponderance of the evidence.

In most injury cases, the injured party (the plaintiff) accuses the party who hurt them (the defendant) of violating a law or legal duty through some form of carelessness. In such cases, a jury must determine how credible they find the plaintiff's evidence of the defendant's misconduct to be. The standard that juries use to evaluate this evidence is called the preponderance of the evidence.

You can think of preponderance of the evidence to mean "more likely true than not." So, when a jury evaluates a plaintiff's evidence that a defendant did X, Y, or Z, the jury must only conclude that, more likely than not, the evidence establishes the defendant's fault. Mathematically, we'd say that the plaintiff wins their case if their evidence is 51% valid or more.

The reason this standard is used is because it would be impossible for a plaintiff to win if they had to furnish CSI-esque, made-for-TV-movie-like levels of evidence. That kind of evidence isn't available to most people of normal means, so the law doesn't require them to meet such a high burden when they're accusing someone of ordinary negligence.

However, when a plaintiff accuses a defendant of something more heinous, such as a willful or wanton disregard for the safety of others, they are required to provide more compelling evidence, and that evidence most certainly is judged by a harsher standard. Proving more aggravated conduct, what is termed "conscious indifference," requires the plaintiff to meet the elevated clear and convincing evidence standard. This primarily applies to personal injury and wrongful death cases wherein a plaintiff is alleging that a defendant was grossly negligent as opposed to ordinarily negligent.

The burden is on the plaintiff.

As is always the case, the burden to prove his or her case --including getting exemplary damages-- resides with the plaintiff. It is not enough to simply allege that the defendant behaved in an aggravated, consciously-indifferent manner. Further, the plaintiff cannot allege conscious indifference and make the defendant disprove it.

The burden is more difficult to meet.

It is a serious allegation that a defendant behaved with a willful disregard for other people's safety, and the additional money that the defendant could be on the hook for (called punitive damages) is substantial. The clear and convincing evidence standard requires the plaintiff to prove the allegations such that the jury has a firm belief, not just a more-likely-than-not belief, that the allegations are true.

It's worth noting here that this is the exact same standard courts use to take people's children away and put them into foster care. Think about that for a second. You essentially need the jury to be just as sure that the defendant was grossly negligent as a judge would require to be convinced a parent is so terrible that their parental rights should be terminated. Hopefully, that illustrates how elevated this standard truly is.

Our Attorneys Are Here To Help

It will take real work and skill for your attorney to prove that the person who hurt you or caused your loved one to pass away was grossly negligent, and the attorneys at Grossman Law Offices have successfully done so for years.

Call us today to learn whether you have a claim. You can reach us at (855) 326-0000.

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