What is “clear and convincing evidence” and when does it apply?

The clear and convincing evidence standard is used in the Powers of Attorney and Similar Instruments (Chapter 709), Florida Trust Code (Chapter 736), the Florida Guardianship Law (Chapter 744), Florida’s Health Care Advanced Directives (Chapter 765), Adult Protective Services Act (Chapter 415), §732.615, F.S., §655.79, F.S. and in various common law causes of action/defenses. As a result, it is crucial to understand the definition of clear and convincing evidence and to know when to apply this standard.

DEFINED:  

The Standard Jury Instructions in Civil Cases defines clear and convincing evidence as follows:

411.3 CLEAR AND CONVINCING EVIDENCE

“Clear and convincing evidence” differs from the “greater weight of the evidence” in that it is more compelling and persuasive. “Clear and convincing evidence” is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction without hesitation about the matter in issue.

The Florida Supreme Court defined this standard as an intermediate level of proof that entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy. See Owens-Corning Fiberglas Corp. v. Ballard, 749 So. 2d 483 (Fla. 1999), citing In re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995).  It is something more than a simple preponderance and less than the standard applied in criminal cases, and that it is evidence free of substantial doubts or inconsistencies. See The Florida Bar v. Rayman, 238 So.2d 594, 596 (Fla. 1970).

In Reid vs. Estate of Edgar Sonder, 63 So. 3d 7 (Fla. 3rd DCA 2011), the appellate court defined clear & convincing evidence as an intermediate standard of proof between the “preponderance of the evidence” standard used in most civil cases, and the “beyond a reasonable doubt standard” of criminal cases, requiring the evidence to be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

APPLICATION: 

ISSUE

 STATUTE / CASE
Agent’s conflict of interest [in POA’s] §709.2116(4), F.S.
Reformation to correct mistakes [in Wills] § 732.615, F.S.
Evidence of oral trust § 736.0407, F.S.
Reformation to correct mistakes § 736.0415, F.S.
Revocation or amendment of revocable trust § 736.0602, F.S.
Limitations on proceedings against trustees § 736.1008, F.S.
Natural guardians § 744.301, F.S.
Procedures to determine incapacity § 744.331, F.S.
Procedure for extraordinary authority § 744.3725, F.S.
Procedure for making a living will; notice to physician § 765.302, F.S.
The proxy § 765.401, F.S.
Immunity § 415.1036, F.S.
Provision of protective services with consent; withdrawal of consent; interference § 415.105, F.S.
Protective services interventions when capacity to consent is lacking; nonemergencies; emergencies; orders; limitations §415.1051, F.S.
Interference with investigation or with the provision of protective services §415.1052, F.S.
Administrative fines for false report of abuse, neglect, or exploitation of a vulnerable adult §415.1113, F.S.
Deposits and accounts in two or more names; presumption as to vesting on death §655.79, F.S.

 
Equitable or virtual adoptions Williams v. Estate of Pender, 738 So. 2d 453 (Fla. 1st DCA 1999); Douglass v. Frazier (In re Estate of Musil), 965 So. 2d 1157 (Fla. 2nd DCA 2007)
Promissory Estoppel W.R. Grace & Co. v. Geodata Services, Inc., 547 So. 2d 919 (Fla. 1989)
Reformation on the basis of mutual mistake Roberts v. Pfeiffer, 135 So. 2d 246 (Fla. 2nd DCA 1961)
Constructive Trust Steinhardt v. Steinhardt, 445 So. 2d 352 (Fla. 3rd DCA 1984); Provence v. Palm Beach Taverns, Inc., 676 So. 2d 1022 (Fla. 4th DCA 1996); Harris v. Harris, 260 So. 2d 854 (Fla. 1st DCA 1972).
Intentional Interference With An Expectancy Murrey v. Barnett Nat’l Bank, 74 So. 2d 647 (Fla. 1954); Freedman v. Freedman, 345 So. 2d 834 (Fla. 3rd DCA 1977); Ladin v. Fisher, 418 So. 2d 440 (Fla. 3rd DCA 1982)
Civil Theft §772.11(1) , F.S.