I.
We will discuss about organizing facts, investigating facts, responding to
adversary’s facts, and other topics in line with fact analysis.
Fact analysis determines the relevant facts and helps to expose the legal
question and issue(s).
- Analyzing the facts of the case involves examining what evidence can be
supported to a legal argument, and then use that information as the basis
of a legal argument. The evidence that supports facts must then be
applicable as validating the legal elements being argued.
II.A fact is something that has already been done or an action in process.
It is an event that has definitely and actually taken place, and is distingui
shable from a suspicion, innuendo, or supposition. A fact is a truth as opp
osed to fiction or mistake.
- concrete basis by which any legal action can be undertaken.
A Question of
Fact in litigation is concerned with what actually took place. During a trial, q
uestions of fact are generally left for the jury to determine after each opposi
ng side has presented its case. By contrast, a Question of
Law is ordinarily decided by a judge, who must deal with applicable legal rul
es and principles that affect what transpired.
III. Paradigmatic
In order to develop a paradigm for the law, three preconditions must be
satisfied. First, legal researchers must recognise a category of objects where
they have a comparative advantage, relative to other disciplines in
establishing a paradigm. Secondly, legal researchers must perceive that
there are some characteristics of the set of objects that enables the
construction of a coherent theory. Thirdly, there must be an underlying
order exhibited by these objects; for without this order there can be no
theories or paradigms, as the primary purpose of a paradigm is to articulate
a perceived order that underlies the phenomena of interest .
Analysis
As a lawyer, you need to base your analysis on the law: judicial opinions,12
statutes and constitutions,13 and administrative law.14 These are called
“primary sources.” Some primary sources are “mandatory authority,”
meaning courts in your jurisdiction must follow them. An example is a
decision of your state’s highest court. Other primary sources are
“persuasive authority,” meaning courts in your jurisdiction may choose to
follow them. An example of persuasive authority is a decision of a court in
another state. Using your common sense again, you will realize that you
want to use current law, not outdated or repealed law. Thus, your research
plan must include updating the authority you locate. Updating means
determining whether the cases, statutes, or administrative regulations you
expect to rely on in your analysis have been accepted, modified, or rejected
by more recent law.
By using your common sense, you have developed an excellent research
plan. It includes secondary sources, primary sources, and updating. Which
of these sources you will use to begin your research and how you proceed
with your research plan are flexible. Others like to begin by reading cases.
As you gain experience researching legal issues, you will find that certain
approaches work better for you in most situations. This analysis will tell you
which issues to research and how to use the sources you find to solve the
client’s problem. Without understanding legal analysis, you may be able to
perform the mechanical functions of research, but you will not be able to
understand the results of the research.16 As your legal analysis improves,
so too will your ability to focus on the key issues present in a fact pattern,
find legal sources that address those issues, and decide which sources will
determine the outcome.
