The Law and You - Part Two - The Facts

kpaul.mallasch — Thu, 10 Apr 2008 18:25:14 -0700

By Sam Hasler

In The Law and You - Part One, I wrote about where lawyers get the law. Knowing the laws is only half of the game - and maybe even less than half. The facts make up the most important part of the case.

Think of the law like an empty glass. Like an empty glass, the law does not have any practical use until applied to the facts.

Many years ago when I was in law school, one of my professors said that clients do not come to lawyers with a contracts case or a torts case but with a problem. The lawyer has to take the problem - the facts of a case - and fit them into a legal category.

We take the facts given by the client and then we look at the statutes (if any apply) and the case law. The cases tell us how the courts have applied the law to the same or similar facts. The hardest cases are those where the facts are just a little bit different from the other cases.

Every type of case has certain things needing proven in court. If there is a statute, then the statute sets out what has to be proven but not all cases are based on statutes. Only the criminal law requires a statute but many civil cases have no statute. Contracts, personal injury cases are what we call common law cases. What has to be proven is to be found only in the case law. Where there is a statute - such as some commercial or consumer or family law cases - then the process starts with the statute.

People think of the law as a wholesale business instead of a retail one. So long as the facts are exactly the same, it is closer to a cookie cutter operation. Finding two exact cases is a lot like finding a four-leaf clover - possible but rare.

My first personal injury case taught me the problems with people’s expectations. An elderly couple injured by in a fender bender: minor injuries, no lost wages. The case lacked good damages. I explained the law of personal injury cases: the driver had a duty, the driver breached that duty, and the breach caused damages. The husband brought in news clippings of cases of people getting large sums of money. I went over the actual losses. He still went away shaking his head in disbelief.

Some people may think the legal system did them wrong. I cannot evaluate each and every case, but I do know that the first step for evaluating a case is to look at the facts. I do know that many clients never have their lawyers explain what has to be done in a case, or that some lawyers either never explain or do a poor job of explanation.

Remember that cases rise and fall on the facts. The best lawyer in the world will lose if the facts do not support their case.

Note: This column is not legal advice. If you have a legal problem, you need to get a lawyer and talk to them in person rather than rely on anything written here.

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kpaul.mallasch — Sat, 9 Feb 2008 00:50:18 -0800

Sam Hasler
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The Law and You - Part Two - The Facts

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