Browsing through the background data for this site I noted that someone came to the site two days ago using the query “How does a paralegal decide if there is a civil case?” as a search phrase. In light of the need for attorney supervision discussed here recently the technical answer for U.S. paralegals is that they don’t decide. However, if the intent of the question was “How does a paralegal assist an attorney in deciding if there is a civil case,” the answer is the topic of the about to be published The Empowered Paralegal Cause of Action Handbook ,” so the query is of particular interest to me and pretty well timed.
The long answer is, of course, too long to post here, since it is book length, i.e., the length of The Empowered Paralegal Cause of Action Handbook. A short answer of sorts is contained in this excerpt from the book:
Causes of Actions and their Elements
This requires a rudimentary understanding of legal underpinnings of the case itself: “causes of action” and “elements.” Each case involves one or more “causes of action.” For example, a case involving the sale of a defective product may have causes of action for breach of contract, breach of express warranty and breach of implied warranty. A case for defective construction of a home may have a cause of action for breach of contract, breach of statutory requirements, negligence and legal doctrines such as unjust enrichment.
Each of these causes of action has its own “elements,” that is, things that must be proved. The elements of a cause of action differ from the definition or description of that cause of action. For example, one might define the cause of action of negligence as, “the failure to exercise a reasonable amount of care in a situation that can cause harm to someone or something,” but this is not sufficiently helpful in determining exactly what must be proven in order to establish the cause of action. For that we look to the cause of action’s elements. An action for negligence is generally considered to require establishing four elements:
(a) The defendant owed a duty to the plaintiff,
(b) The defendant breached that duty,
(c) The plaintiff was harmed, and
(d) There is a causal relationship between the defendant’s breach and the plaintiff’s harm.
The plaintiff will win her case if she established each of these elements to the satisfaction of the factfinder. Doing so requires that the legal team understand facts, evidence, and proof.
Facts of a case are the bits and pieces that comprise what happened – the event which brought the parties to court; the particularities of the automobile accident, the assault, the boundary dispute, the contract dispute and so on. For example, it may be a fact of an automobile accident case that the defendant went through an intersection when the traffic light in his direction was red. However, this “fact” may be contested by the parties. One party will say the light was red and the other party will say it was green. Which version of the event is believed by the factfinder will depend on what evidence is presented and how it is presented.
Evidence is something that tends to show, confirm or verify a fact. It can be testimony such as the driver testifying he looked at the light before he entered the intersection. Not all evidence is equally convincing. Testimony from an uninvolved third party such as a school crossing guard that the light was red or green may be more convincing than the testimony of the driver of either car involved in the accident. A picture taken by a camera set up to track drivers’ speed may be even more convincing.
From the lawyer’s perspective, evidence is more important than actual facts. Cases must be evaluated and presented based on the evidence available for presentation rather than on the facts the attorney believes are true. We are more concerned about what can be proven than what occurred. We can assure our clients that we believe the doctor told them they would never be the same, but must make them understand that what matters is what the doctor says in his reports and on the witness stand. If the doctor’s report state, “Patient is fully recovered,” the fact the doctor said something else to the client at some point is likely to be outweighed by the evidence in the form of the doctor’s report.
Proof is simply whatever evidence is sufficient to convince a jury to accept a fact as true. Thus, a driver’s testimony that the light was green when she went through the intersection is proof if it is credible enough for the jury to accept it as a true statement of the facts and is not proof if the jury does not accept it. Evidence becomes proof when it convinces a jury. Regardless of the intrinsic value of the evidence, it is not convincing unless the jury hears or sees it, understands it and is persuaded by it.
Thus, the goal of the plaintiff’s legal team is to locate and present to the factfinder admissible evidence of each fact necessary to establish each element of the cause of action sufficient to convince the factfinder that the fact is more likely than not to exist, i.e., the preponderance of the evidence. The goal of the defendant’s legal team is to locate and present to the factfinder admissible evidence regarding each alleged fact sufficient to establish that one or more causes of action has not been established by the plaintiff. This is illustrated in the following diagram, which I refer to as an “evidence tree.” Both of these goals begin with a thorough understanding of the elements of the cause of action. An analysis of the facts as well as the evidence available to confirm each of the facts of the
underlying event, when taken together, establish each of those elements.
In this sense, the legal team is not, as trials are popularly characterized, necessarily searching for “the truth.” Rather it is searching for the best evidence and the best way to present evidence in order to convince a jury that the evidence is sufficient to constitute proof of facts which establish the elements of the causes(s) of action or defense at issue in the legal action. Since the search for evidence begins when the case starts, this process must start when the case starts: during, or even before, the initial client interview.
So the legal team determines which possible causes of action might apply to a given set of facts. They then analyze the facts in terms of the elements to determine whether there are facts that support each element. If there are, then there is at least a theoretical civil case. Whether there is a case in a practical sense, i.e., whether the legal team will decide to proceed with the case, will depend on the further analysis of whether there is evidence available or that can be obtained sufficient to constitute proof of those facts.
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