At the end of March, I spent five days in court conducting a trial. I was the lawyer for the Plaintiff, so the “burden of proof” rested on me (and my client). In practical terms, that meant that it was my responsibility to prove all the essential elements of my client’s case, on “a balance of probabilities.” Many people have heard that phrase, but for many people the notion of proof remains somewhat mysterious. What does it mean to say that something has been proven “on a balance of probabilities”?
Jean Chretien, the former Prime Minister of Canada (who was also a lawyer) famously said this about the notion of proof:
A proof is a proof. What kind of a proof? It’s a proof. A proof is a proof. And when you have a good proof, it’s because it’s proven.
The rambling, repetitive nature of the comment illustrates the problem. We all have a rough sense of what it means for something to be “proven”, but we don’t always know how to prove something. In a court of law, there are strict rules of evidence, and those rules will affect what the judge sees and hears, and how the judge ultimately decides what happened. One of my jobs is to think about what facts need to be proven, and how those facts are going to be proven.
In order to prove that something happened, it is sometimes enough to have a person tell the court what they saw or what they heard. In other cases, that may not be enough – instead of the account of a bystander, it might be necessary to hear from the person who was actually involved in the event.
There are also a variety of evidentiary rules when dealing with documents. You can’t assume that just because something is written down (in a letter or an email, for example), that the statement is true – or that the statement can be admitted into evidence. You might need to get the author of the letter or the email to come to court to explain what was said and why it was said. A different set of evidentiary rules apply when attempting to put a value on something – like a parcel of land, a piece of equipment, or the business loss that someone has suffered as a result of another person’s wrongful act.
What about blog posts, facebook status updates, text messages, or instagram photos? The rules of evidence will apply to each of those things in different ways – and again, you can’t assume that something found on the internet can simply be printed out and then used in court.
Credibility might also be an issue – a person might have relevant evidence, but there might be a reason why that person’s evidence is not believable. That is something the judge will decide – but it can’t be ignored when preparing a case for trial.
Each of these things needs to be looked at carefully, so that the best evidence is put before the court. If the judge hearing the case has access to all the relevant evidence, then it will be easier for him or her to determine what actually happened. If a party fails to lead the right kind of evidence, then there may be gaps in the factual record, making it harder for the judge to arrive at an accurate assessment of what happened.
At the end of the day, proving a case can be a detailed and complicated project – yet another reason to develop a clear, cost-effective legal strategy at the outset!