This model for proving facts contains components which are non negotiable because they
are founded on an inexorable logic which underlies the processes of deciding questions of
fact. But, despite this fixed foundation, performance of the tasks which these processes
entail is not generally scientifically determined; in practice it tends to involve human
rather than scientific judgments, even if these judgments can be made based on some
good reason.
In the first instance the model is used by the court for deciding which version of facts
wins out. In the second instance it provides a structure for writing the ensuing judgment
by invoking one of the basic rules for clear writing. Of all the characteristics a text can
have, the most vital is a clear overall structure. When a text consists of writing up how a
task was performed, as is the case with judgments on questions of fact, the method for
performing the task generates the structure for writing how the task was performed. In
short, how you do it becomes how you say it.
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10.3 Managing the Information
Introduction
Managing information can assist the court to write a clear and timely judgement in at
least two ways. It can organise the information so that the court can more easily survey
and understand the whole case and more easily locate specific types of information that it
needs to consider. It can also assist with assembling the text of the judgement.
To understand how this is so, consider the two key components of a judgment on a
question of fact. One is the textual component. The text of a judgement needs to contain
an account of the two (or more) competing versions of fact, along with an account of the
evidence that supports each version. The textual side is simple in principle and can be
made simple in practice by proper management of information. Paradoxical as it seems
on the surface, proper information management can expedite the writing of a judgment by
ensuring that much of the text of the judgment is written even before trial commences.
The other is the decisional component. This involves deciding between the competing
versions. On the surface this involves ticking the boxes. Having stated the competing
versions in the textual component, the decisional component says: “This version is
legally correct.”
At a deeper level, the decisional component involves the thinking process that has been
outlined above in the model for proving facts with its three steps. This model is
outwardly scientific in that the three steps are totally logical. However, performance of
the crucial step, Step 2 is scientific only to a small degree. Step 2 involves assessing the
probability that each version of the facts is true. For the most part, this comes down to a
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This, however, is not to suggest that all judgments on questions of fact
should follow this model in precisely the terms in which it is set out here. It may
be that an intelligent variation is needed rather than a facsimile. Nevertheless,
the judgment should easily reflect the structure that the model creates.
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