Jottings By An Employer's Lawyer

Monday, January 03, 2005

When Is a Scintilla Not Enough? When the Standard Is Clear and Convincing

On the last day of 2004, the Texas Supreme Court affirms a workers compensation retaliation jury verdict in all respects, except for its finding of punitive damages. Southwestern Bell Telephone Co. v. Garza (Tx. 12/31/04) [pdf]. Under Texas law in order to sustain a finding of punitive damages, there must be a showing of malice based on clear and convincing evidence. The question for the Court: does this heightened standard of proof at trial mean there should be a heightened standard of appellate review?

In answering yes, the Court had occasion to discuss Texas' dearly beloved scintilla rule, which is best summed up in the revered former Chief Justice Calvert's law review article on the topic:

The scintilla rule, although having its origin at a much earlier date, was firmed up in Texas in Joske v. Irvine [44 S.W. 1059 (Tex. 1898)]. The rule may be stated in these words: when the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is, in legal effect, no evidence, and will not support a verdict or judgment.
But when the standard is clear and convincing, more than a scintilla of evidence is needed. The Court had already decided this issue, albeit in a totally different context. When parental termination decisions were questioned, clear and convincing evidence was the constitutionally mandated standard, and the same test that was applied there should be applied here.

The new test, first conduct the legal sufficiency examination (see opinion for explanation of that process), then: "If, after conducting its legal sufficiency review of the record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient." Heightened standard at trial, heightened standard of appellate review. Makes sense to me.

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