(2)
The model for transactions should structure any account of how to
perform a transaction.
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 issue 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’s 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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