See, e.g., my blog Is Proof in Litigation Predictable?: Some Obstacles to Systematic Assessment of Decisions about Proof in Litigation
They look not only to the immediate steps that might be taken but also to steps that might be taken after possible immediate steps, and these successor steps are also typically numerous.
See id.
Like chess players, litigators frequently must try to envision the possibilities to a depth of two, three, four, and more levels. (This is clearly not easy to do.)
See id.
If tools for the management of this complex activity are to be developed, it is necessary to spell out the ingredients of this complex activity.
The possibilities that litigators (imagine they) face in litigation are the result of a variety of factors. One of these factors is legal rules. This note attempts to spell out the role that certain types of legal rules play in decision making about proof in litigation.
The legal rules that play a role in lawyers' decision making in and about litigation and proof in litigation are of various kinds.
These legal rules that influence such decision making include substantive legal rules ("theories of liability"), affirmative defenses to substantive theories of liability, and procedural rules of various kinds.
Some substantive legal rules are primary substantive rules that either mandate or authorize the imposition of a legal remedy under various specified types of conditions. Legal professionals sometimes refer to these sorts of rules as "legal theories of liability."
There is another species of substantive rules. These rules create affirmative defenses or defenses in the nature of affirmative defenses. This species of substantive legal rules specifies the types of circumstances under which a set of conditions that is normally, or otherwise, sufficient for liability under some legal theory is overcome or defeated.
Procedural rules also figure in lawyers' decision making in and about litigation and proof in litigation. Many procedural rules are "interim" rules in the sense that many procedural rules specify whether and the manner in which further legal proceedings and further steps in litigation and proof may and may not be taken. Like substantive rules, procedural rules have definitions (whether precise or imprecise) that amount to requirements. These definitions, or requirements, or elements, specify the conditions under which some procedural step may (or may not) transpire. As in the case of substantive rules, each of these primary procedural rules is normally supplemented by a rule or rules that specify the kinds of circumstances or conditions -- the special conditions -- under which any authorization that flows from compliance with the requirements of a primary rules is defeated or overcome.
Interim procedural rules sometimes (but not always) include elements of substantive legal rules that may apply if a legal proceeding mutates into a final phase of adjudication such as a trial. Not all interim procedural rules have this forward-looking and substantive thrust, but in this meditation let's focus on procedural rules that govern proceedings prior to the final phase of adjudication on the merits and on interim procedural rules that do incorporate substantive rules that can in principle apply in a final phase of adjudication such as a trial. So here our focus will be on procedural rules such as those governing summary judgment in civil litigation and we will try to spell out how these sorts of procedural rules can affect or channel litigation and proof processes.
On this blog I have previously noted that proof in litigation involves both (i) the cognitive states (beliefs) of fact finders such as judges and jurors and (ii) the decisions, choices, or acts of such fact finders a/k/a decision makers. See Two Lawyers and a Judge Shape a Lawsuit (1:48. p.m., January 28, 2005). I also noted that actors such as trial lawyers present fact finders with evidence such as the testimony of witnesses in an effort to awaken certain cognitive states (beliefs about facts) and elicit certain decisions (e.g., verdicts) by such fact finders a/k/a decision makers. See A Witness, Two Lawyers, and a Trial Judge Form Some Beliefs, Make Some Statements, and Shape a Lawsuit (4:24 p.m., January 28, 2005)
Although it is useful to appreciate that forensic proof aims to influence both the cognitive states and the choices of fact finders such as jurors and judges, any adequate account of forensic proof should also help to explain which issues or questions become the frame of reference for the lawyerly and adversary battles over the fact finders' beliefs and choices. How does the legal process influence judgments about which beliefs and choices matter in processes such as litigation?
At trial -- in the final phase of factual adjudication -- substantive legal rules play a central role in determining which questions the fact finder must form beliefs and make decisions about. Even before trial, however, substantive legal rules can and normally do play an important role in determining the selection of issues for adjudication at trial. One way in which that happens is by the incorporation of substantive rules in interim procedural rules. Such interim procedural rules serve as gates that can open or close to certain kinds of substantive disputes and battles in later phases of legal proceedings such as trials. In the paragraphs that follow I sketch how "interim procedural rules with substantive content" perform this sort of gatekeeping function.
Consider some definitions and stipulations:
Legal Theory i = Legal Requirements for Liability under (Essential Legal Elements of) Legal Theory i
Affirmative Defense k to Legal Theory i = Legal Requirements (Essential Conditions) for Defeat of (Essential Elements for Overcoming) Liability under Legal Theory i
Proof (Disproof) of Legal Requirement, Condition, or Element = Evidence Showing an Event (Absence of any Event) Instantiating the Legal Requirement, Condition, or Element
Preliminary Proof (Disproof) of Legal Theory i = Provisional (Preliminary) Proof (Disproof) of Events Instantiating Some or All Essential Elements of Legal Theory i (Affirmative Defense k)
Final Proof (Disproof) of Legal Theory i = Final Proof (Disproof) of Events Instantiating Each Essential Element of Legal Theory i (Affirmative Defense k)
Final (Cognitive) Proof (Disproof) of Legal Theory i = Legally-Sufficient Degree of Persuasion (Strength of Belief) in Authorized Decision Maker of Occurrence (Non-Occurrence) of Events Instantiating Each Essential Element of Legal Theory i (Affirmative Defense k)
Final (Legal) Proof (Disproof) of Legal Theory i = Choice of Decision Maker to Declare Occurrence (Non-Occurrence) of Events Instantiating Each Essential Element of Legal Theory i (Affirmative Defense k)
The moral of the preceding definitional and conceptual story is relatively simple: whether a particular path to a possible final forensic battle -- to possible final proof or disproof of one particular set or sets of substantive legal requirements -- is open or closed frequently depends in part on the outcome of a preliminary skirmish or skirmishes about one or more of those substantive legal requirements, on the outcome of adversary attempts at preliminary proof and disproof of substantive legal requirements. But this simple insight is also basic: armed with this simple insight, it is possible for us to begin developing a tool (e.g. a visual tool), or a procedure, to depict how trial lawyers can organize some of their thinking about the relationship certain kinds of legal rules and the choice in and about proof in litigation that are available to trial lawyers who are engaged in litigation or contemplating the possibility of litigation.
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