Using Law in Litigation
Nature of Litigation
Law is used in litigation, where one party sues another using some legal rule
that creates a cause of action. Like other legal rules, this cause of action
consists of Elements 1-n and Consequences wrapped in a conditional
statement. When facts in a case satisfy Elements 1-n, the cause of action
applies to those facts. The facts to which Elements 1-n are, as already stated,
designated as Facts 1-n. There are two major tasks in litigation, applying law to
facts and proving facts.
Applying Law to Facts
One of two major tasks in litigation consists of applying law to facts. As noted
and explained above, the process of applying law to facts is a syllogism based
on the method of reasoning labelled deduction.
Proving Facts
In an actual trial of a case, Facts 1-n need to be proved. The evidence that
might be used to prove Fact 1 can be labelled Evidence 1, the evidence that
might be used to prove Fact 2 can be labelled Evidence 2, and so on.
Collectively Evidence 1-n is the evidence that might prove Facts 1-n.
In litigation facts can be difficult to prove because the evidence may be flimsy
and the other side produces contrary evidence. Several means are used to
prove facts. Some of these are relatively uncontentious. These means of proof
are the following:
(1)
Agreement. Parties to the case agree on some facts.
(2)
Admissions. One party admits that certain facts are true.
(3)
Presumptions. There are some common law presumptions that certain
facts are true or are true in certain circumstances.
(4)
Statute. A statute can deem certain facts as true.
(5)
Judicial Observation. A court can observe some facts for itself. These
consist of real evidence, facts that occur or are visible in the court, or facts of
which courts can take judicial notice because everyone knows them (for
example Christmas Day falls on 25 December).
(6)
Records of an Organisation. Records of an organisation are acceptable
as proof of the facts that they record.
(7)
Observation by means
of Technology. Evidence from a device that
records sound or records action as pictures is acceptable.
Two methods of proving facts are often contentious. These are:
(1)
Observation by a witness.
(2)
Patterns of behaviour. This relies in induction (or inductive reasoning).
For example if X, Y and Z commonly occur together and the court is satisfied
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