Lawyers of all kinds – attorneys, solicitors, barristers, judges, tribunal members and member of the public service – need to prove facts for the purpose of making adjudicative decisions. But despite this widespread need, little attention is paid in law schools to the reasoning processes for proving facts. This book seeks to rectify this problem. It contains a four-step model for proving facts. These steps are located on a scale of proof running from 0% to 100%:
Step 1. Starting Point. This step identifies the point on the scale of proof where a prosecutor (in a criminal case) and a plaintiff (in a civil case) are located when the case commences. Each is located on 0%. This is the rule as to the onus of proof, or the burden of proof as it is also called. It is also the basis of the presumption of innocence. This is the point from which both a plaintiff and a prosecutor start the proof of their case.
Step 2. Versions of Truth. In Step 2 each party presents to the court their version of the truth of the case.
Step 3. Probability of Truth. In Step 3 the court, aided by submissions from the parties, assesses the prob- ability that each party’s case is true. It does this by reliance on cognitive science, induction, deduction and deeming provisions and sources such as intuition and common sense. This is the most intense, difficult and uncertain of the four steps. Ideally a court would make a numerical assessment of these probabilities. In practice this is not possible given the nature and complexity of a disputed case in law.
Step 4. Finishing Point. The finishing point is the point on the scale of proof that a prosecutor (in a criminal case) and a plaintiff (in a civil case) must attain in order to win their case. This is the standard of truth that a prosecutor or plaintiff must achieve. Lawyers conventionally refer to it as the standard of proof. Step 4 in- volves determining whether the prosecutor or plaintiff has reached this point. In other words, Step 4 involves determining whether they have determined their case to the required degree of proof. If they have reached the required finishing point. This means that they win the case. If they have not reached the finishing point, they lose the case.
The purpose of this book is to state the major principles of constitutional law in a simple and straightforward manner. It is designed as a first reader in the subject prior to attacking the intricacies of federal constitutional law later in a law course.
This book describes a structured approach to legal research consisting of 12 steps. The idea is to present a step by step approach to legal research that is as foolproof as human endeavour can make it.
Vast numbers of statutes rule our lives. Many of them are not easy to read. Parts of some are almost impossible to read. This book sets out some ways of drafting statutes that makes them easier to read.
This book starts from the ground up to explain the logical structure and function of a privative clause. It then considers in a critical way the reasoning of the High Court. It points out aspects that need further attention because the court’s reasoning is unsatisfactory. It also points out relevant legal considerations that the court has so far overlooked.
The skill of interpreting a statute is important for one good reason – the outcome of a case commonly enough depends on how a court interprets an ambiguous provision in a statute. Yet despite the importance of interpreting statutes there have been no serious attempts so far to describe an effective method for performing the task.
Lawyers tend to be skills averse. They absorb some way of performing various tasks with law but without explicit or proper instruction. This lessens their ability to learn law as students and to work with law as legal practitioners. This book aims to rectify this problem.
This book is written as an underpinning of the author's book Legal Method. These methods describe how to organise law, form law (that is make and interpret law), use law (in litigation and transactions) and communicate law (by writing and reading).
There are numerous sources of law in Australia, which possesses sixteen legal systems, being the Commomwealth, six states and nine territories. The purpose of this book is to explain the nature of the sources of law used in these legal systems.
The primary purpose of this book is to provide law students with the text of constitutional legislation and documents. Law students need these in several types of courses. The obvious courses are introductory law courses as well as public law courses on constitutional law, administrative law and human rights.
This book explains how to answers a problem question. It does this by providing a model. Naturally this model incorporates advice on how to perform the four fundamental skills that are needed to answer a problem question.