New York law gives our courts the authority to hear and determine disputes involving foreign corporations or non-residents – where the amount in dispute is significant and the parties jointly submit to such jurisdiction by contract. As a result, our courts are often the venue of choice for major transactional and international disputes where the law of New York will be applied.

The combination of New York forum selection and choice of law provisions in an agreement means that a dispute may face some of the anomalies of our local practice. One such nuance relates to burden of proof.

But first: a brief tutorial.

Most common law jurisdictions have substantially the same burden of proof in a civil action, on the one hand, and in a criminal proceeding, on the other.

The standard of proof in a civil action is “the preponderance of the evidence.” Simply put, a “preponderance” means just enough evidence to make it more likely than not that the fact in issue has been established.

The standard of proof in a criminal proceeding is “beyond a reasonable doubt.” The burden is met where the evidence establishes a particular fact to a moral certainty and that no reasonable alternative is possible.

In New York, we often encounter a third, entirely different burden of proof: “clear and convincing evidence.”

The burden of proof is often “clear and convincing evidence” in cases involving fraud (in any of its manifestations); issues relating to (in)capacity and mental or physical health; real property actions; proceedings in which exigent or extraordinary relief is sought; efforts to change, challenge or enforce written contracts, agreements or understandings; or attempts to overcome historically established legal presumptions.

The “clear and convincing evidence” standard appears to be a cross between “the preponderance of the evidence” and “beyond a reasonable doubt.”

Thus, New York Pattern Jury Instruction 1:64 – entitled “General Instruction – Burden of Proof – Clear and Convincing Evidence” – provides as follows:

The burden is on the plaintiff to prove [here state the ultimate issue to be decided] (e.g., fraud, malice, mistake, a gift, the contract between the plaintiff and the deceased, incompetency, addiction) by clear and convincing evidence. This means evidence that satisfies you that there is a high degree of probability that there was (e.g., fraud, malice, mistake, a gift, a contract between the plaintiff and the deceased, incompetency, addiction), as I (have defined, will define) it for you.

To decide for the plaintiff it is not enough to find that the preponderance of the evidence is in the plaintiff’s favor. A party who must prove (his, her) case by a preponderance of the evidence only need satisfy you that the evidence supporting (his, her) case more nearly represents what actually happened than the evidence which is opposed to it. But a party who must establish (his, her) case by clear and convincing evidence must satisfy you that the evidence makes it highly probable that what (he, she) claims is what actually happened.

If, upon all the evidence, you are satisfied that there is a high probability that there was (e.g., fraud, malice, mistake, a gift, a contract between the plaintiff and the deceased, incompetency, addiction) as I (have defined, will define) it for you, you must decide for the plaintiff. If you are not satisfied that there is such a high probability, you must decide for the defendant.

Which burden of proof applies may be outcome determinative. For example, contract disputes often arise where an aggrieved party claims that a controlling provision was the result of mutual mistake and should be reformed. New York, as a matter of public policy, favors the enforcement of contracts as unambiguously written. Accordingly, a written agreement will only be subject to reformation by the court where the intent of the parties and the mutual mistake are established by “clear and convincing evidence.”

A preliminary injunction will be granted only where a party establishes a likelihood of success on the merits, irreparable harm if the relief sought is not granted and the absence of a remedy at law (e.g., damages). Because the relief sought is extraordinary, a preliminary injunction will be entered only where the movant establishes the required elements by “clear and convincing evidence.”

And “fraud” in several arguable forms, which seeks to alter the existing state of facts based on deception, misrepresentation or deliberate omission, is easy to allege. But because the after-the-fact accusations are always predictably one sided and self serving, the claim can only be sustained on “clear and convincing evidence” of wrongdoing.

When representing either a plaintiff or a defendant in New York, consider whether the burden of proof will be escalated from “the preponderance of the evidence” to “clear and convincing evidence.” Determination at the outset of a litigation of whether the more demanding standard may apply will lead to a more meaningful ability to evaluate the likelihood of success on the merits, on the one hand, and to manage expectations for summary judgment or trial, on the other.