Dream of: 20 August 2000 "Clear And Convincing Evidence"

I had been recruited to perform some legal work at a government agency. Sitting in a large room filled with desks and government employees, I was talking to a middle-aged black woman who was giving me the instructions of the work I was going to perform. She handed me a list of about 100 names of women who were being reviewed to determine whether they should be fired. I had the feeling all the women were school teachers and that my job would be to defend them in the review proceedings.

The black woman, who apparently was the boss of all the women on the list, assured me that none of the women were actually in danger of being fired, that the review process was simply undertaken as a matter of course. She even crossed off the names of two of the women, apparently favorites of hers, whom she didn't want to subject to the process. Just as I was about to stand up and leave, however, she suddenly pointed out the name of one woman on the list, and said that this particular woman might have a problem, that indeed the woman might be fired.

A bit taken aback, I stood and walked out of the room. I felt certain I could do a good job defending all the women on the list, even the one problem case, but I realized I knew almost nothing about this process. I had never handled this kind of case before, I hadn't even seen this kind of case. Why, I didn't even know what the burden of proof would be in order to determine if one of the women should be fired. Surely the burden wouldn't be "beyond a reasonable doubt", as in a criminal case, but would the burden simply be "by a preponderance of the evidence," as in a civil case?

I exited the building and I was headed to the building next door, where the procedures would take place, and as I crossed between the buildings, I suddenly saw ahead of me three old friends whom I knew, all of whom were lawyers. One was my old high school, classmate, Phil Waddell, and another was my old law school classmate, Clayton Blackstock. They all looked as if they were in their late 30s. We all smiled and greeted each other. I had not seen any of them in a while, and I was happy to meet them here. They were all happy-go-lucky guys, lawyers to be sure, but not consumed by the law. I had always enjoyed their company. As I stopped and chatted with them, I wondered if any of them might be familiar with the type of case I was handling, but when I asked, I was disappointed to learn they had never handled this kind of case.

We exchanged a few more words, and I moved on. Just as I reached the second building and was about to enter, I remembered the type of proof which would probably be required in these cases – "clear and convincing evidence." This degree of proof – a degree between "by a preponderance of the evidence" and "beyond a reasonable doubt" – was typically used in administrative hearings such as this one. "Clear and convincing evidence" – I kept repeating the words in my mind, trying to get the feel of the phrase and discover what it actually meant.

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