Saying he could find nothing in Rhode Island law that directly responds to the type of issues he faces with the paint suit, Silverstein ruled that the state needs only present a preponderance of evidence to win its case.

A preponderance of evidence is a legal term used in civil cases that directs a jury to rule for whichever side has the stronger evidence, however slight the edge may be.

The paint companies wanted the judge to raise the standard to "clear and convincing." According to Black's Law Dictionary, "this is a greater burden then preponderance of the evidence, the standard applied in most civil trials, but less than evidence beyond a reasonable doubt, the norm for criminal trials."

After reviewing arguments from both sides, Silverstein said it is clear that the state of New York goes with the higher standard, and New Hampshire does just the opposite.

But the Rhode Island cases cited by the defendants as precedents didn't really fit this case, Silverstein said. All applied to someone trying to stop someone else from doing something in the future, such as building an oil refinery in Jamestown or establishing a coal mine next to a food-processing plant.

"Here, there is no present conduct or contemplated conduct," Silverstein said. "Whatever it is they are alleged to have done took place years ago. Essentially, all the court will be asked for is to require them to undo something the plaintiff will have proven they did. The court finds nothing in Rhode Island law that directly responds to the issue before it."

Silverstein said his ruling would be novel, but he believed the better rule and the one the state Supreme Court would endorse would be to require a preponderance of the evidence.

John Tarantino, a lawyer for the paint companies, argued yesterday that the nature of the case requires a higher standard of evidence.

The state contends all lead paint is hazardous, he said, and it wants the paint companies to test every building in Rhode Island for the presence of lead, to abate the lead wherever it is found, to pay for a public-education campaign and to pay damages.

"The plaintiffs say they want a mandatory injunction to abate the public nuisance," Tarantino said. "The law is you need a higher standard of evidence for a mandatory injunction."

But Silverstein disagreed with Tarantino even as he made his argument.

None of the cases Tarantino cited seek relief similar to what the state wants in this case, Silverstein said.

Tarantino tried arguing that the state's case was based on speculation into future problems with lead.

"If I said that 35 years from now something was going to happen to my property, you'd say, 'Next case.' " Tarantino said.

"But what if you said next week 45 kids would get sick?" Silverstein replied, referring to projections of lead-poisoned children.

Deputy Atty. Gen. Linn Freedman argued that the preponderance of evidence standard was applied in the legal action taken by the state in 1996 against Robert and Peter Kalian. After a hearing, Superior Court Judge Richard J. Israel ruled their house in Providence created such a public nuisance that they had to put it in receivership and remove all the lead paint.

Israel's decision was supported by the state Supreme Court.

This morning, the paint company attorneys are expected to ask Silverstein to dismiss the case. They're also scheduled to present their first witness this afternoon.

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