On April 30, 1993, the Alabama Supreme Court released its opinion in Phillips Colleges of Alabama, Inc. v. Lester, 622 So.2d 308 (Ala. 1993), holding that a circuit court did not err in not instructing a jury on the substantial evidence standard codified at Ala. Code § 12-21-12 (1975). Later that year, ATLA printed an article entitled "Burden of Proof - What is the Plaintiff's Burden at Trial?" vol. 13, no. 4 Ala. T.L.J. 23 (Fall 1993), in which we argued (in keeping with Phillips Colleges of Alabama) that juries should not be charged that a plaintiff bears the burden of proving his case by "substantial evidence" but should, as was the case under the old scintilla rule, continue to be charged that the plaintiff's burden of proof at trial is to "reasonably satisfy the jury by the evidence."

The Alabama Supreme Court's release of Phillips Colleges should have put the controversy to rest. Unfortunately, prompted in part by the zealousness of the defense bar, circuit courts around the state continued to charge juries that the plaintiff bore the burden of proving negligence by substantial evidence and that when punitive damages were sought, the plaintiff had to reasonably satisfy the jury by clear and convincing evidence (pursuant to Ala. Code § 6I I -20(a)( 1975). These erroneous charges unfairly increased the plaintiffs' evidentiary burdens in the eyes of the jury and likely caused confusion during deliberations, as jurors struggled with the meanings of the concepts of substantial and clear and convincing evidence. Good defense advocates seized every opportunity to successfully argue these improperly heightened standards of proof to the plaintiff's detriment.

On April 18, 1997, the Alabama Supreme Court explicitly resolved the controversy with its release of Ex parte Gradford [MS 1951102, Apr. 18, 1997], __So.2d__(Ala. 1997) (Almon, J. and Shores, Kennedy, Cook, and Butts, J.J., concurring; Hooper, C.J. and Maddox, Houston, and See, J.J., dissenting). In Gradford, the 5-4 majority held that juries are not to be charged about either the substantial evidence or clear and convincing evidence rules; rather, as was the case under the old scintilla rule, juries are to be charged only that plaintiff's burden of proof at trial is to "reasonably satisfy the jury by the evidence."

The Court reiterated that the substantial evidence and clear and convincing evidence standards are legal standards to be applied solely by the circuit courts when testing the quantity and quality of plaintiff's evidence in connection with dispositive motions, such as a motion for summary judgment or motion for judgment as a matter of law. By surviving the defense motions, the circuit court has ruled as a matter of law that either substantial evidence or clear and convincing evidence exists to support plaintiff's claims. Thus, the jury need not concern itself with whether the evidence is substantial or clear and convincing, rather, the jury must simply determine whether the plaintiff has "reasonably satisfied them by the evidence" on the disputed issues of fact.

In Gradford, the circuit court instructed the jury as to the negligence claim that "The burden of proof is upon the plaintiff to reasonably satisfy you by substantial evidence" and as to the plaintiff's wantonness claim that "The law requires that the plaintiff prove the material allegations of one or more of his wantonness claims by clear and convincing evidence." Id. at * 2. Certiorari was granted to review the affirmance of the trial court's action by the Court of Civil Appeals' decision, the Supreme Court concluded:

"The giving of such a charge was error, both because the substantial evidence rule has no place in the jury's deliberations and because the charge has a tendency to mislead and confuse the jury. Although the circuit court here instructed the jury on the legal definition of 'substantial evidence,' the repeated use of that term may have confused the jury because of the ambiguity of the word 'substantial'. 'Substantial' may mean either 'real, material, not seeming or imaginary' or 'considerable in amount, value, or worth.' The former meaning seems to be what the 'substantial evidence' standard requires for an affirmative ruling on the question of sufficiency of the evidence, but the latter meaning is the one that is commonly understood. Thus, the jury might well understand 'substantial evidence' to mean 'more than a preponderance of the evidence."

Id. at p. 6. The Supreme Court also noted that the circuit court judges were more likely than jurors to be aware of the shift in Alabama law away from the old scintilla rule to adoption of the substantial evidence rule as part of the comprehensive tort reform package promulgated by the legislature in 1987. The Supreme Court observed:

"This possibility of confusion is exacerbated by the fact that the jurors will probably not know about the shift in Alabama law from the scintilla rule to the substantial evidence rule. When 'substantial' is considered in relation to 'scintilla', the term requires only that the evidence be material, of some substance. A circuit judge ruling on a summary judgement motion or a motion for a judgement as a matter of law will know this distinction and will look for substantial evidence with the correct threshhold in mind. A jury, not knowing that 'substantial' should be contrasted with 'scintilla,' may well think that the requirement of 'substantial evidence' requires the plaintiff to prevail by some margin of evidence greater than the mere preponderance of the evidence, which is the true burden of proof."

Id. at c6-7. The Court used Gradford to explain why giving the clear and convincing evidence charge for recovery of punitive damages under a wantonness count was also erroneous. The Court noted that requiring a jury to find by clear and convincing, evidence that the defendant is guilty of wantonness is "clearly prejudicial to the plaintiff." * 9. First, "a plaintiff is entitled, as a matter of due process of law, to have each properly supported claim submitted to the jury with a correct statement of the applicable law." Id. Second, the erroneous (clear and convincing evidence) burden "could prevent a jury from giving any recovery where the defendant has raised a defense of contributory negligence, which may bar a recovery in negligence but does not bar a recovery in wantonness." Id. at * 9-10.

In summary, the Supreme Court's release of Ex parte Gradford returns plaintiffs and defendants to a level playing field by correctly requiring the circuit courts to charge juries under the reasonable satisfaction standard.

Gregory B. Breedlove is a member of Cunningham, Bounds, Yance, Crowder and Brown, L.L.C. He is Presedent Elect of ATLA, and the author of numerous ATLA articles (including "Burden of Proof - What is the Plaintiff's Burden at Trial" vol 13, no 4 Ala TLJ 23 (Fall 1993)).

David G. Wirtes Jr. is a member of Cunningham, Bounds, Yance, Crowder and Brown, L.L.C. He is a co-editor of the ATLA Journal, author of numerous ATLA articles and a member of ATLA's Board of Governors.

ATLA thanks Mobile members Steve Moore and Mark Wolfe for their effors in obtaining the favorable result on appleal in Ex parte Gradford as highlighted above.

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Clarification

by David Wirtes, Jr.
Cunningham, Bounds, Yance, Crowder & Brown, L.L.C.
Mobile, Alabama

The Summer 1997 edition of the Alabama Trial Lawyers' Journal contains an article entitled "What Is The Plaintiff's Burden At Trial," where the authors argue that the Alabama Supreme Court's release of Ex parte Gradford, 699 So. 2d 149 (Ala. 1997), returned the plaintiff's burden of proof at trial to the old standard of "reasonably satisfy the jury by the evidence" in compensatory damage cases. The article also may be read as suggesting that the "reasonably satisfy the jury by the evidence standard" is applicable in wantonness cases where punitive damages are sought.

Opinions released following Gradford reveal that the Court has retained the "clear and convincing evidence" standard (see APJI 11.03) in wantonness cases where punitive damages are sought. See Flagstar Enterprises, Inc. v. Davis, [MS 1960141, Sept. 12, 1997], 1997 WL 564475, ___ So.2d___ (Ala. 1997) (punitive damages sought; wantonness standard stated as requiring a jury to find by clear and convincing evidence); Gulf States Steel, Inc. v. Whisenant, [MS 1951646, Sept. 12, 1997], ___So.2d___(Ala. 1997) (no punitive sought on wantonness count; trial court upheld for not instructing on clear and convincing evidence standard).

Given these intervening decisions, ATLA believes Gradford and its progeny should be interpreted as follows:

1. Jurors are to be charged in compensatory damages cases that plaintiff's burden is "to reasonably satisfy the jury by the evidence."
2. In wantonness cases where punitive damages are not sought, plaintiff's burden is to "reasonably satisfy the jury by the evidence."
3. In cases where punitive damages are sought, other than wrongful death cases, APJI 11.03 correctly states the law and requires that trial courts charge juries under the "clear and convincing evidence" standard.