Such evidence requires a higher standard of proof than proof by a preponderance of the evidence. However, three cases have criticized the BAJI instruction as an inaccurate statement of the law. This is a substantially higher burden than that imposed by the BAJI instruction. However, other cases state that BAJI 2.62 is a correct statement of the clear and convincing evidence standard. The phases of a bad faith case involving a punitive damage claim.
Bifurcation is mandatory where the defendant requests it.
However, the right can be waived if the defendant fails to timely assert it. In bifurcated trials, the jury typically first determines liability issues, such as breach of contract, breach of the implied covenant, compensatory damages, and whether the defendant acted maliciously, fraudulently or oppressively. Assuming the jury finds in plaintiff's favor on all these issues, the case proceeds to the second phase. But even if it previously found malice, fraud or oppression, the jury need not award any punitive damages at all. The jury is asked to evaluate the need for deterrence, if any .