statement from a witness needs to have one eye on the elements of the cause
of action. As the witness tells their story, guided by the lawyer, the lawyer is
first and foremost interested in the material facts. There are two pertinent
questions in the lawyer’s mind. Does the statement of the witness assert any of
the material facts? If it does, how might these facts be proved?
The lawyer may also be interested in some other facts. For example, these
facts may illuminate their case so that they can better explain it to the court,
they may portray their client as a good person to win the sympathy of the
court or they may assist in making their client’s story more credible in some
way.
Issues of Law and Fact
The simple form of the model for litigation can be developed or expanded to
explain both issues of fact and issues of law. Mention will also be made of
issues of discretion.
Issue of Fact
Let us use Element 3 of some cause of action to illustrate an issue of fact in a
hypothetical case. As set up for this illustration, there are two versions of Fact
3, Fact 3P alleged by the plaintiff and Fact 3D alleged by the defendant. Fact
3P satisfies Element 3. Fact 3D, however, does not satisfy Element 3. Instead
it establishes the absence of Element 3, namely Non Element 3. These can be
set out in a developed form of the model in the following way:
Element 3
Fact 3
Evidence 3
Element 3
Fact 3P
Evidence 3P
Non Element 3
Fact 3D
Evidence 3D
Figure 18.4 Issues of Facts
In this hypothetical case the plaintiff has Evidence 3P which might prove Fact
3P, while the defendant has Evidence 3D which might prove Fact 3D. This
shows the basic point, that an issue of fact is a contest between two sets of
evidence. One will establish a fact that satisfies an element of the cause of
action, while another will establish a fact that
will not satisfy this element.
Thus, the question is, in simple terms, whether the court accepts Evidence 3P
rather than Evidence 3D. More precisely, factoring in the standard of proof,
the question is whether the court is sufficiently satisfied of the existence of
Fact 3P by Evidence 3P to discharge the relevant standard of proof.
Questions of fact are resolved according to a model for proving facts.
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Chapter 21 Model for Proving Facts
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