Ben Welch, a second year student at the University of South Carolina School of Law, co-authored an article featured in the February 2015 issue of the Tennessee Bar Journal. Titled “Concubines, Dead Partners and the Standard of Clear and Convincing Evidence,” the piece questions why the clear and convincing standard is the burden of proof in establishing an implied partnership in Tennessee.
In the summer of 2014, Welch clerked for Circuit Court Judge Thomas J. Wright of the Tennessee Third District. Wright is also a member of the Tennessee Pattern Instruction Committee, where he reviews instructions handed down from judges to juries. He was interested in discovering why juries are instructed in most civil cases to decide based on a preponderance of evidence, while implied partnership -agreements and a handful of other types of cases are decided on clear and convincing evidence, a more rigorous burden of proof. “The first assignment Judge Wright gave me was to research the clear and convincing standard in Tennessee and see where it originated,” Welch said. He discovered that it first appeared in that state in a 1932 case concerning an oral contract between former unmarried cohabitants. “I followed that to some other cases and found no real reason why the clear and convincing standard was limited to implied partnerships. Why couldn’t clear and convincing be the standard for all oral contracts in the state?”
Welch and Wright worked on the article together over the summer, and after Welch returned to Columbia, Wright finished it by elaborating on some points and adding personal notes. “One of the things that he added was the title, which I thought was funny. Judge Wright has a good sense of humor,” Welch said. While the Biblical connotation of “concubine” may be more well known, its purest definition is “unmarried people living together,” so it acts as a reference to that original 1932 case.
A native of Brooksville, Fla., Welch received his undergraduate degree from the University of Alabama, where he majored in math and minored in German. He earned a Masters degree in sports management from the University of Southern Mississippi. There, he took a sports law class that he enjoyed, and that led him to pursue a law degree at USC. While he has written sports articles that have appeared in school and local newspapers, this is his first published legal article. “I’d never really had to think about my writing before this,” Welch said. “Writing about sports is something that comes naturally to me, because I can talk about sports all day. This was very different, and it was surreal to see my work in print.”
Welch says he knew the article was special and that being published in the Journal was a big deal, but it didn’t really hit home until he was casually scrolling through his Twitter feed one day and saw that it was retweeted by someone he follows. “I clicked the link and started reading the article and then realized, ‘Hey, I wrote that,’” he said. “It really was very cool.”
To read the article, visit www.tba.org/journal/concubines-dead-partners-and-the-standard-of-clear-and-convincing-evidence.