Non Element 3
Fact 3D
Evidence 3D
Figure 4.10 Issue of Fact
In this hypothetical case the plaintiff
has Evidence 3P that
might prove Fact
3P, while the defendant has Evidence 3D that
might prove Fact 3D. This
shows the basic point, that an issue of fact is a contest between two sets of
evidence. One will establish a fact that satisfies an element of the
cause of
action, while another will establish a fact that
will not satisfy this element.
Thus, the question is, in simple terms, whether the court accepts Evidence 3P
rather than Evidence 3D. More precisely, factoring in the standard of proof,
the question is whether the court is sufficiently satisfied of the existence of
Fact 3P by Evidence 3P to discharge the relevant standard of proof.
Questions of fact are resolved according to a model for proving facts.
141
Resolving the Issue
Model for Proving Facts
Trial lawyers and judges have a practical understanding of the task of fact
finding. For this reason, the account here of fact finding is brief and simply
tries to state in a formal way a model for proving facts that courts are using,
even if just implicitly.
142
This model for finding facts consists of three steps:
#
Step 1 Versions of Truth. Parties present versions of truth to the
court.
#
Step 2 Probability of Truth. The court assesses the probability
that each version is true.
#
Step 3 Standard of Truth. The court compares the probability
that each version of the facts is true with the probability required by the
relevant standard of proof.
This model should be used by trial lawyers to predict how a court might find
facts. It should be used by a court to guide it in the actual task of finding facts.
And in keeping with the proposition that underlies this chapter, this model
should structure the judgment of a court when it writes up how it decided a
question of fact. In short, if the task is performed by reference to a structure it
should be recounted by reference to that same structure.
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
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141
Christopher Enright Legal Method Chapters 21-25
142
This model is explained in more detail in Christopher Enright Legal Method
Chapters 21-25.
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