NJ Laws Directions to Ken Vercammen and Associates Ken Vercammens Resume Ken Vercammen articles

Kenneth Vercammen & Associates
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Civil Model Jury Charge 1.19 BURDEN OF PROOF - CLEAR AND CON

1.19 BURDEN OF PROOF - CLEAR AND CONVINCING EVIDENCE

With regard to (state here the factual issue(s) to be proved) it is the obligation of (state here the party or parties upon whom the burden of proof rests) to prove those allegations by clear and convincing evidence. Clear and convincing evidence is evidence that produces in your minds a firm belief or conviction that the allegations sought to be proved by the evidence are true. It is evidence so clear, direct, weighty in terms of quality, and convincing as to cause you to come to a clear conviction of the truth of the precise facts in issue.

The clear and convincing standard of proof requires that the result shall not be reached by a mere balancing of doubts or probabilities, but rather by clear evidence which causes you to be convinced that the allegations sought to be proved are true.

Note:

Clear and convincing establishes a standard of proof falling somewhere between the traditional standards of preponderance of the evidence and beyond a reasonable doubt. It is an exception to the rule requiring proof by a preponderance of the evidence in civil cases and proof beyond a reasonable doubt in criminal cases. Although the committee does not recommend it, it nonetheless recognizes that some judges may feel more comfortable in defining the usual civil standard, preponderance of the evidence, as well as the criminal standard, beyond a

reasonable doubt, as an aid to the jury in understanding what clear and convincing evidence means. If such an election is made, the judge should consult the standard civil charge for preponderance of the evidence and criminal charge 1.104 for proof beyond a reasonable doubt. Accordingly, depending on the specific circumstances, this standard is mandated by both case law and statute. The following is a non-exclusive list of the instances where the clear and convincing standard is the applicable burden of proof; please note that most of the following citations involve matters ruled upon by a judge without a jury. They have been listed solely for any research benefit they might provide.

-- to prove a claim under Statute of Frauds, Statute of Wills, or the parole evidence rule. Herman and MacLean v. Huddleston, 459 U.S. 375, 74 L.Ed.2d 548, 549, 103 S.Ct. 683 (1983).

-- the adverse parties are at a gross disadvantage in disputing an allegation. State v. Sugar, 100 N.J. 214 (1985).

-- when the threatened loss resulting from civil proceedings is comparable to the consequences of a criminal proceeding. In re Polk License Revocation, 90 N.J. 550, 563 (1982).

-- before a decision is made to withdraw a life sustaining treatment from an incompetent nursing home patient. Matter of Conroy, 98 N.J. 321, 382 (1985).

-- in a civil commitment proceeding. Addington v. Texas, 441 U.S. 418, 60 L.Ed.2d 323, 99 S.Ct. 1804 (1079).

-- whenever the interests of the natural parents in the care, custody and management of their child are threatened. Santosky v. Kramer, 455 U.S. 754, 71 L.Ed.2d 599, 102 S.Ct. 1388 (1982).

-- where the circumstances or issues are so unusual or difficult that proof by a lower standard will not serve to generate confidence in the ultimate factual determination. In re Polk License Revocation, supra at 568.

-- cases involving defamation or where the defendant has a qualified immunity or privilege. Burke v. Deiner, 97 N.J. 465, 481 (1984).

-- discipline or disbarment proceedings against an attorney, In re Pennica, 36 N.J. 401 (1962); In re Racmiel, 90 N.J. 646, 661 (1982).

-- proving fraud. Minter v. Bendix Aviation Corp., 26 N.J. Super. 268, 274 (App. Div. 1953). When the allegation of fraud is presented as an affirmative defense and is actually a claim of non-entitlement to alleged contractural benefits or is tantamount to a claim of breach of contract on the part of a plain-tiff, the standard of proof is the usual greater weight of the evidence standard. See Italian Fisherman v. Commercial Un. Assur., 215 N.J. Super. 278 (App. Div. 1987) (defendant insurance companys affirmative defense of arson on the part of the insured, as well as the incidental torts of fraud and false swearing involved in the presentation of the claim for fire damage, must be proved by the preponderance of the evidence and not by clear and convincing proof). However, see also Batka v. Liberty Mutual, 704 F.2d 684 (3 Cir. 1983) which held that where insurance company asserts fraud in the inducement to the contract the allegation must be proved by clear and convincing proof.

-- proving a public nuisance. Township of Cherry Hill, N.J. v. N.J. Racing Commission, 131 N.J. Super. 125 (Law Div. 1974), affd o.b., 131 N.J. Super. 482 (App. Div. 1974).

-- challenging special assessments. McNally v. Township of Teaneck, 132 N.J. Super. 441 (Law Div. 1975), mod. 75 N.J. 33 (1977).

-- amending an election petition. Lepre v. Caputo, 131 N.J. Super. 118 (App. Div. 1974).

-- showing that sterilization is in the best interests of an incompetent person and that the person to be sterilized lacks the capacity to consent or withhold consent. In re Grady, 85 N.J. 235 (1981).

-- establishing that officers of a corporation seeking a casino license or an applicant for a casino key employee license possess good character, honesty and integrity. In re Boardwalk Casino License Application, 180 N.J. Super. 324 (App. Div. 1981), mod. on oth. grds. 90 N.J. 361 (1982), app. dism. 459 U.S. 1081, 74 L.Ed.2d 927, 103 S.Ct. 562 (1982); In re Tufi Application, 182 N.J. Super. 631, 638 (App. Div. 1981), certif. den 91 N.J. 189 (1982).

-- demonstrating that persons connected with an applicant for a license for the collection, transportation, treatment, storage and disposal of solid wastes, who have been previously convicted of a serious crime, have since been rehabilitated. N.J.S.A. 13:1E-133.

-- overcoming the presumption that the facts related in a sheriffs return of service are true. Garley v. Waddington, 177 N.J. Super. 173 (App. Div. 1981).

-- demonstrating that government action constitutes a taking of property. Matter of Egg Harbor Associates (Bayshore Centre), 94 N.J. 358, 374, showing that a rent control ordinance has a widespread confiscatory effect upon efficient landlords. Helmsley v. Borough of Fort Lee, 78 N.J. 200 (1978), app. dism. 440 U.S. 978, 60 L.Ed.2d 237, 99 S.Ct. 1178 (1979); Orange Taxpayers Council, Inc. v. City of Orange, 169 N.J. Super. 288 (App. Div. 1979), affd. 83 N.J. 246 (1980).

-- showing that an attorneys extrajudicial speech truly jeopardized the fairness of an ongoing trial. In re Hinds, 90 N.J. 604, 626 (1982).

-- justifying the debarment of a contractor from doing any further business with the State. N.J.A.C. 17:12-7.3(a)5; Keys Martin & Co. v. Director, Div. of Purchase, 99 N.J. 244, 263 (1985).

-- establishing that a contract should be reformed. St. Pius X House of Retreats v. Camden, 88 N.J. 571, 580-581 (1982).

-- overcoming the presumption that the value of a partners interest in a professional partnership is accurately reflected by the value ascribed to it in a buy-sell agreement. Stern v. Stern, 66 N.J. 340, 346-347 (1975).

-- showing that there was inadequate consideration for a mortgage. Continental Bank of Pa. v. Barclay Riding Acad., 93 N.J. 153, 170 (1983), cert. den. 464 U.S. 994 (1983); Federal Beneficial Assn. v. Eastern Land Co., 96 N.J. Eq. 628, 631 (E. & A. 1924).

-- overcoming the presumption that the last of two or more marriages is valid. Newburgh v. Arrigo, 88 N.J. 529, 538 (1982).

-- showing a waiver of the newspersons privilege. N.J.S.A. 2A:84A-21.3B (Rule 27).

-- overcoming the presumption of validity attaching to a certification received by a municipality for its plan for providing for its fair share of low and moderate income housing from the State Council on Affordable Housing. N.J.S.A. 52:27D-317.

-- a trial judge should not set aside a jury verdict as against the weight of the evidence unless it clearly and convincingly appears that allowing the verdict to stand would work a manifest denial of justice under the law. R. 3:20-1; R. 4:49-1(a). The same standard applies to an appellate court which is asked to overturn a trial courts denial of a motion for a new

trial on the ground that the verdict was against the weight of the evidence. State v. Carter, 91 N.J. 86, 96 (1982). See State v. Sims, 65 N.J. 359, 373-374 (1974); R. 2:10-1.

CAUTION: MOST OF THE FOREGOING CASES ARE NON-JURY CASES; THESE CASES ARE BROUGHT TO YOUR ATTENTION AS EXAMPLES OF THE APPLICATION OF THE CLEAR AND CONVINCING STANDARD.

SEE ALSO:

-- Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162; In re Boardwalk Regency Casino License Application, 180 N.J. Super. 324, 399 (App. Div. 1981), modified on other grounds, 90 N.J. 361 (1982); Lepre v. Caputo, 131 N.J. Super. 118, 124 (L. Div. 1974); New Jersey Rules of Evidence, Comments 5 and 7 to Rule 1(4), at 35 and 46 (1986 ed.).

Model Civil Jury Charges

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Kenneth Vercammen was the Middlesex County Bar Municipal Court Attorney of the Year
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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies, KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for many injured clients over the years I am proud to have worked on cases in various capacities, small and large. While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you case will receive the same degree of dedication and hard work that went into each of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurance companies is the soft approach we take toward our clients. I am proud of my compassionate staff as I am of the outstanding financial results they have achieved. For many years, I have watched them treat our clients with patience, dignity and respect. I would have it no other way.

Many years ago, I attended a seminar sponsored by the American Bar Association on Law Practice Management. This was to help insure that each of our clients is always treated like a person -- not a file! We recognize that you are innocent victims and that you have placed your trust in us. Please understand that we understand what you are going through. Feel comforted that we are here to help you.

If you retain KENNETH VERCAMMEN to represent you, we will give you the same advice we give each of our clients -- concentrate on your life, you family and your health. We will take care of everything else. Leave all of the work and worry about your legal rights to us. Trust us. Believe in us. Have faith in us as your attorneys. Understand that we will always to do what we believe is best for you and your case. Helping you is our job. In fact, it is our only job -- guiding injury victims like you through one of the most difficult times of your lives, with care and concern -- while fighting aggressively to the limits of the law to obtain compensation and justice for each of you!

Print our Personal Injury Questionnaire on our Website, Fill it out and Fax back, so we can determine if we can help you obtain an injury settlement. We would welcome an opportunity to prove to you what we have proven to thousands of injured clients -- that you can feel comfortable and secure in the fact that KENNETH VERCAMMEN - Trial Attorney We Fight To Win.

When you have been injured in an accident or collision, you are worried about who is going to pay your medical bills, lost wages, and other damages. The last thing you want is to be taken advantage of by an insurance company. If you dont protect your rights, you may not be able to make a claim.

Insurance companies have attorneys and adjusters whose goal is to pay you as little as they can. You need a New Jersey personal injury lawyer to fight for you. I am dedicated to helping your recover as much money as possible under the law.

You need an attorney who will work hard to protect your rights, maximize your insurance settlement and minimize the hassles of dealing with the insurance companies. You need an experienced and aggressive New Jersey trial lawyer with PROVEN RESULTS who will fight for you. Having an experienced personal injury lawyer can make the difference between getting what you deserve and getting nothing.

Without the threat of a lawyer who is willing to go to trial and seek a big jury verdict, why would an insurance company pay you what your claim is really worth? Lawsuits can be expensive, and many people do not have the money to pursue their claim. In every case, I advance all costs associated with pursuing your case and I do not ask you for a penny until we recover from the other side.

I am an experienced aggressive trial lawyer and a 3rd degree Black Belt. I am not afraid to take your case to trial if that is what it takes to maximize the amount of money your recover for your personal injury. I offer one-on-one service, and I will not hand your case off to an inexperienced lawyer or a paralegal.

Reduce the stress of making a claim.

Personal injury accidents can turn your life upside down. Making a personal injury claim can be difficult and time consuming. Once I take your case, you can stop worrying about dealing with the insurance companies and focus on recovering from your injuries. I take care of all of the paperwork, phone calls, and negotiations, so you can get on with your life.

p.s. For those clients who are afraid or reluctant to go to Court, KENNETH VERCAMMEN also offers a special -- For Settlement Only -- program. This means that if we are unable to settle with the insurance company, we will not go any further -- unless you want us to. You have my personal assurance that there will be absolutely no pressure and no obligation.

We handle personal injury cases on a contingency fee basis.

This means: YOU DONT OWE ME A LEGAL FEE UNLESS I RECOVER MONEY FOR YOU.

Call our office to schedule a "confidential" appointment 732-572-0500

Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the American Bar Association Tort and Insurance Committee Newsletter.

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