Thus a trial is a “forensic lottery,”
561
which means that going to court is an
uncertain business. So too is any legal advice about the prospects of success
in litigation. At best before trial, a lawyer, even an experienced litigation lawyer,
can make only an informed guess as to the ultimately established “correct”
version of the facts. Ideally, their prediction should be in the form of an
assessment of the probability that a court will accept a particular version of the
facts.
562
In making this guess the lawyer has to consider such possibilities as
the following –
the client may be an unconvincing witness, the witnesses may
not support the client’s testimony, cross examination may shake the testimony
of the client or of their witnesses, or the other side may contradict the evidence
by putting forward another account of the facts.
Since fact finding has this uncertainty, any advice to a client about the
prospects of success in litigation must acknowledge and cater for it. Thus the
lawyer should, as far as they are able, do the following – inform the client of
the uncertainty, indicate which other versions of the facts are possible, indicate
the legal consequences of those other versions, and for each version of the
facts make some assessment of the likelihood that it will be established.
Obviously the justice system would benefit if research could make fact finding
more accurate and more predictable. Unfortunately much of the desirable
research is bedevilled by the same uncertainty. If sometime after a trial it was
possible to know where the truth lay, it would enable social scientists to
analyse the cases where courts got it right and where courts got it wrong to
identify any differentiating factors –
these might provide a clue as to how
courts should approach fact finding. Sadly, this is not possible because
generally it is not possible to know the truth, so it is not possible to know if
the court was right or wrong. Of course there will be a few cases where
evidence comes to light that is fairly conclusive that a court made a major
error. But these cases aside, there is no certain knowledge. Consequently there
is no criterion or gold standard against which to measure how well or how
badly a court found facts in a particular case.
563
This is why there are no
statistics on how often courts err when they find facts. This is why there are
such constraints on the degree to which research on fact finding by a court
can make any progress.
Methods of Proof
Lawyers and courts use four methods to prove facts:
561
Twining, (1984) p 71
562
Eggleston (1983), Eggleston (1989)
563
Eggleston, Richard (1975) ‘What is wrong with the adversarial system?’ 49
Australian Law Journal 428, 431
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