Chapter 21
Model for Proving Facts
Introduction
Step 1: Versions of Truth
Step 2: Probability of Truth
Step 3: Standard of Truth
I believe that more injustices are created by erroneous findings of fact than
by errors of law.
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Introduction
The adversary system has evolved not to find the truth, but to find a
winner.
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Working with law in litigation entails working with facts and evidence in an
attempt to prove facts to a court. Moreover, sometimes in a transaction there
may be a past fact that is in dispute so that it has to be proved by evidence.
Typically, though, in a transaction facts are established or created by
processes, an operation that does not contain the inherent difficulty that
occurs with proving facts.
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Need for Proof
Proving facts, therefore, is largely a task for litigation. Facts of a case are
frequently in dispute and are never conclusively established until a court finds
them so. One party says that a fact is X, the other says that it is Y, and the
court must resolve the issue by making a finding of facts. This is a finding that
one version or another has been proved to the satisfaction of the court. When
the court does so, the facts are conclusively established for the purposes of
the legal system. However there is no general guarantee, and there never can
be, that facts have been correctly established as true in any absolute sense.
Uncertainty of Proof
In a case where facts are disputed, a party is required to prove them to a
required degree of certainty. This is the standard of truth that the facts have to
meet, which is referred to by lawyers as the standard of proof.
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556
Gibbs (1993) p 497
557
Richard Ackland “Triumphs and Disgrace of Law and Order” Sydney
Morning Herald 3 April 2009
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Chapter 19 Model for Transactions
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Chapter 25 Standard of Truth
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