(1)
The model for litigation structures accounts of litigation. There are two obvious
uses in this regard. One is writing a manual for litigation. The other is writing a judgment
that decides a question of fact.
(2)
The model for transactions should structure any account of how to perform a
transaction.
4.5 Model for Litigation
Litigation involves a dispute between parties over issues of fact, issues of law and issues
of discretion. There is a model for litigation that explains how litigation operates. In the
simple case and in the basic version of the model, a plaintiff wins because the elements of
a legal rule are satisfied by the material facts of a case and the facts are proved by
evidence. If the plaintiff fails in any of these tasks they lose and the defendant wins. Thus
the model bears directly on issues of fact. With some adaptation the model can explain an
issue of law where there are essentially two or more versions of one of the elements
because that element is ambiguous. With substantial adaptation the model can explain an
issues of discretion.
Layout of the Model
The main version of the model structures litigation by identifying and utilising the
relationship between the three components or constituents - law, facts and evidence. It
directly represents the plaintiff or the prosecutor’s case. Inferentially or derivatively it
also represents the defendant’s case because it shows what they must do to avoid civil
liability or criminal prosecution.
This model for litigation can best be explained by reference to a table that portrays
litigation based on a cause of action contained in a legal rule that consists of Elements 1-
n. While it would be sufficient to portray the model using just Element 1 and Element n,
the table also includes Element 2 to give a better sense that a cause of action is
constituted by a list of elements.
Elements 1-n are satisfied by the appropriate facts, labelled Facts 1-n. Facts 1-n are
proved by Evidence 1-n. When Elements 1-n are satisfied, various consequences follow,
labelled Consequences 1-n. Here now is the table:
Law
Facts
Evidence
Element 1
Fact 1
Evidence 1
Element 2
Fact 2
Evidence 2
Element n
Fact n
Evidence n
Consequences
Consequence 1
Con Fact 1
Con Evidence 1
Consequence 2
Con Fact 2
Con Evidence 2
Consequence n
Con Fact n
Con Evidence n
Figure 4.8 Model for Litigation
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