Proofmaking Model. Legal Source eg. common law or statute. Level ONE. Cause of Action. Level TWO

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Cameron Burke
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Proofmaking Model Level ONE Legal Source eg.

breach of contract s18 Australian Consumer Law Level THREE The component parts

these items of evidence oral, written, some other form e.g.

1 Proofmaking Model Level ONE Legal Source eg. common law or statute Level TWO Cause of Action e.g. breach of contract s18 Australian Consumer Law Level THREE The component parts of the cause of action Level FOUR These are material facts only Level FIVE Are these items of evidence oral, written, some other form e.g. video Please see the notes on the following pages for a discussion of the proofmaking model. CL T1 A1 Proofmaking model ALL STATES 2015_06_04 Page 1 of 5

2 Proving the Case Litigation is about proving your case. It involves planning, preparation and performance. Together, these activities form part of a process that can be applied to all litigious matters. This process is encapsulated in the proofmaking model, a five level analysis of the relationship between a cause of action, relevant facts and the evidence available. The proof is the logical relationship between issues of law, fact and evidence. The Proofmaking Model In the analysis of the issues of fact and law operating in a client's litigious case, a lawyer should adopt a careful and systematic approach. The problem should be identified and each of its parts and all the available solutions identified. The five levels of analysis are: Level 1 - Legal source Having received comprehensive instructions, research the law thoroughly and identify every available legal remedy or cause of action available to the client. In respect of each cause of action, identify each issue of law which may arise and every contrary argument available to the opponent in relation to it. This process of identifying the precise legal source of the client s right of action or defence may be difficult. Whether the legal source is statute based or entrenched in the common law must be clear. Considerations such as when the cause of action accrues for example, may impact on what piece of legislation applies. Consider the example of a consumer matter where the timing of a misrepresentation (the conduct - a level 3 element) and the damage (another level 3 element) are critical in determining whether the action is brought under the Australian Consumer Law (for matters where conduct occurred and the cause of action accrues after 1 January 2011) or the Trade Practices Act 1974 (Cth) (for matters where the conduct occurred and the cause of action accrued, before 1 January 2011). Level 2 - Cause of action Translate the Level 1 right or defence into a clearly stated cause of action, charge (in a criminal matter), or application. There may be more than one. CL T1 A1 Proofmaking model ALL STATES 2015_06_04 Page 2 of 5

3 Identify: each cause of action with precision the particular jurisdictions and courts in which that claim or defence can be sustained the formal requirements for expressing the claim or defence in writing whether the claim is liquidated or unliquidated the proper plaintiff and the proper defendant in respect of each cause of action, the affirmative defences available at law to the opponent. Level 3 s In respect of each Level 2 cause of action, analyse the sections or principles to identify each of the matters which require separate proof, establishing the individual ingredients of the cause of action, charge, indictment or defence. These matters are commonly called the elements of the cause of action or defence. In a criminal case, they are called the elements of the charge. In respect of each available affirmative defence, examine and analyse it to identify each ingredient of the defence. Level 4 - Material facts Consider all of the facts and allocate them under the appropriate Level 3 element headings. Differentiate relevant facts, that is those which clearly go directly to the issue, and the irrelevant ones, based on the nature of the claim, concentrating on the material facts, only. Consider further: the direct facts which are closely connected to the elements of a case. Proving them directly, substantiates these elements, and the indirect facts, which, on the other hand, do not relate directly to the elements of a case, but they may be used to prove other facts, which in turn are directly relevant to the elements. Phrasing the material facts as that statements, might help eg. that there was a verbal offer and acceptance. When no apparent fact is available to support an element or where a fact is not a strong one, investigate what other evidentiary facts may be relied upon to support the case. At the same time, identify the propositions of fact known to be available to the defendant to answer the plaintiff's propositions of fact and to establish the defendant's defences. CL T1 A1 Proofmaking model ALL STATES 2015_06_04 Page 3 of 5

4 Level 5 - Organise the evidence under the Level 4 fact headings. Ensure that at least one piece of evidence, in whatever form, is available to be called to support each proposition of fact, whether by direct or indirect means. All facts proposed require proof, unless there is an admission by your opponent. Without evidence of the facts that support the element of the action, that element cannot be established, and, if all elements cannot be proved, there is no case. may be oral, written or some other physical means eg. video, USB stored material. Note that the same piece evidence may support more than one fact. At the same time, identify all evidence both direct and indirect known to be available to the defendant and marshal each item of evidence together with the like evidence of the plaintiff. Propositions of fact vs propositions of law Note the distinction between propositions of fact and propositions of law. Issues of fact are determined by evidence or admission. Issues of law are determined by authority and argument, based on the interpretation of statutes and case law. These issues are decided by the judge, with the assistance of submissions from the bar table. The proofmaking model and the defendant For the defence, the process of analysis starts with an originating document. All 5 levels of analysis in the model still apply to the defence, particularly in a civil claim where the defendant often also has specific responsibilities of proof. As lawyer for the defence, you have at least two proofmaking tasks: 1. consider whether it is necessary to respond to the facts raised by the plaintiff in the originating document, and 2. identify the facts of any alternative defence. For most causes of action, there are recognisable legal defences available, which go beyond merely denying or not admitting facts alleged by the plaintiff. Sometimes, defences are created specifically by the same legislation that created the cause of action. These are statutory defences. CL T1 A1 Proofmaking model ALL STATES 2015_06_04 Page 4 of 5

5 Often, the defence available to the defendant is one of the general law defences. The facts and law for a statutory or common law defences are analysed in the same way as the plaintiff's original cause of action. There are elements to be shown and facts to be proved, and the defence lawyer should work through the model very carefully. The defendant in a civil action may also make a cross-claim against the plaintiff or a third party, then the defendant will also have to establish facts to support that cause of action. CL T1 A1 Proofmaking model ALL STATES 2015_06_04 Page 5 of 5

The Importance of Legal Research and the Lack Thereof

The Importance of Legal Research and the Lack Thereof by Barry Weintraub, Partner, Rueters LLP, Toronto, September 27, 2016 I started researching legal cases as a summer student in 1986. Dinosaurs were