California Fire And Life

73

More likely than not.

Is the phrase that's running through Jack's head as he sits in his cubicle.

More likely than not.

"More likely than not" is the phrase that applies to the standard of proof in civil cases. In criminal cases the standard of proof is "beyond a reasonable doubt" and the distinction is important to Jack's consideration of the Vale file.

If I deny the claim, Jack thinks, we will – far more likely than not – get sued. At the end of the trial the judge will instruct the jury as to the burden of proof, and he'll tell the jury that the critical question is, "Is it more likely than not that Mr. Vale either set the fire or caused the fire to be set?"

That's the way the law reads.

In reality it's far more complicated.

The civil burden of proof is "more likely than not," so technically, if it's even 51 percent to 49 percent that your guy did it, the jury should come back and find for the insurance company. That's the way it's supposed to work, but Jack knows that's not the way it does work.

How it does work is that the jury is perfectly aware that arson is a crime. No matter what the judge instructs them, they are not going to apply the civil standard, "more likely than not," as the burden of proof. They're going to apply the criminal standard – "beyond a reasonable doubt."

So Jack knows that if you're going to deny a claim based on arson you had better be damn sure that you can persuade a jury that your insured set the fire or caused it to be set… beyond a reasonable doubt.

So Jack asks himself, Is it more likely than not that Vale set the fire or caused it to be set?

Yes, it is more likely than not.

Beyond a reasonable doubt?

Jack takes out a piece of legal paper and a ruler and draws two straight lines down the paper, creating three columns. At the top of the columns he writes: INCENDIARY ORIGIN, MOTIVE, OPPORTUNITY.

Nicky's up to his ears in debt. He's about to lose the house. He has a balloon payment coming up and no apparent resources to pay it. He owes money to the feds and to the state. His companies are in trouble, too. He sells his beloved boat at a loss to try to get some cash. He has a bundle sunk into antique furniture, and, according to Vince Marlowe, he can't sell the furniture he wants to sell. But he doesn't even try to sell the pieces he's attached to. His wife is about to divorce him and that would split his meager resources at least in half.

Motive, Jack thinks, is a dead solid lock.

So motive is a win, opportunity is a push, incendiary origin is a comer.

Unless Accidentally Bentley hangs in with his cig-in-the-vodka theory.

Jack draws a dotted line down the center of each column, then alternates plus and minus signs so that each category of proof is divided into pros and cons.

When he finishes the chart, it looks like this: