the probability required by the standard of proof. When it does this there will
be one of two outcomes:
(1)
If the probability that the plaintiff’s version of the facts is true is equal
to, or greater than, the probability required by the standard of proof, the
plaintiff’s case is proved and she wins.
(2)
If it is not, the plaintiff loses the case.
Positive and Defensive Elements
Elements of a cause of action can be classified as (i) positive elements and (ii)
elements that are variously labelled negative elements, defensive elements or
just defences. These terms have been explained in discussion of organising
law.
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Labelling Parties
Commonly this chapter uses the generic terms “initiator” and “responder” to
cover the party who initiates a case and the party who defends the case.
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Sometimes when explaining or illustrating a point we refer just to civil cases
without specifically mentioning criminal cases. This is done for simplicity.
What we say about a civil case, however, applies equally to a criminal action,
subject to an obvious qualification –
it is necessary to adjust the standard of
proof from the civil to the criminal standard.
Outline of Step 3
Step 3 requires two things of a party or a court:
(1)
It is necessary to identify
the legal rules that determine the standard of
proof that a court requires for a party to win a case. These are described in
this chapter along with the rules that determine the onus or burden of proof,
since these are intimately connected with the rules for the standard of proof.
(2)
In Step 2 the court has made their estimate of the probability to which
the initiating party has made out their case. Now the court compares this
probability with the probability required by the rules for the standard of proof.
If the initiating party has made this standard they win the case. If they have not
made it, they lose the case.
Legal Rules
Discussion in this chapter travels over the territory occupied by two legal rules
conventionally known as the burden or onus of proof and the standard of
proof. These rules originated in common law and in most jurisdictions they are
still part of common law. However there are two possible changes. In some
jurisdictions judges have modified the rules so that the common law is not
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Chapter 3 Organising Law
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Chapter 17 Model for Using Law
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