Elements 1-n because Fact 1 fits within the category delineated by Element 1,
Fact 2 fits within the category delineated by Element 2 and so on.
(3)
Conclusion. Column 3 displays the conclusion. Since the rule applies to
Facts 1-n the Consequences designated by the rule apply to those facts.
Column 3 lists Facts 1-n. Beneath these is located an arrow leading to the row
containing ‘‘Consequences.’’ This is how the diagram portrays the conclusion
to the syllogism, namely that Facts 1-n cause Consequences.
Model
This account portrays the essential task of applying law to facts. For
convenience, however, in this chapter an expanded view is taken of the scope
of the task of applying law to facts – it considers some preliminary tasks and
builds a framework to show the possibilities. This enables us to locate the task
in its wider context which helps the reader better to understand how the
process of using law works in problem questions in their academic career and
in litigation in their legal career. This model contains three steps:
(1)
Performing some preliminary tasks.
(2)
Building a framework to show the possibilities.
(3)
Checking each element of each cause of action against the facts.
Preliminary Tasks
Before law can be conclusively applied to facts three preliminary processes
must be performed. First, the facts of the case or transaction must be
established. In the obvious situation, a court hears a case, finds the facts then
applies the relevant law to those facts as so found, the outcome being to
determine whether the initiating party has made out their cause of action.
However, in litigation prior to trial the facts have not been proved. A lawyer
accounts for this when applying law to facts by assuming, for the sake of the
exercise, that the facts will be proved. This enables them to advise their client
of their prospects of success on the basis that they can prove their case. In an
analogous process, a student answering a problem question generally assumes
that the facts given in the question are proved.
Second, if the law is ambiguous, the decision maker must have already
interpreted the law to resolve the ambiguity. However, this happens only when
the decision maker adjudicates the case.
Therefore a lawyer in practice does
one of two things. They interpret the provision by deciding that one meaning is
legally correct. Then they apply the law to the facts based on this
interpretation. Alternatively, they apply the law to the facts as a separate
exercise for each meaning of the ambiguous provision. In this way they cover
all bases. This is a more realistic way to proceed than the first option because
it is not always possible to predict how a court will decide a question of
interpretation.
 |
 |
 |