What you think, what you know, and what you can prove

One goes into a hearing or trial trying to establish various facts that will hopefully lead the court to rule in the desired manner. However the court is looking for “proof” of these facts. Merely alleging these facts exist is insufficient to convince a factfinder. One might think of three confidence levels in evidence: thinking a fact is true; knowing a fact is true; proving a fact is true. Much disappointing litigation stems from overconfidence in one’s evidence. In developing litigation strategy, one should distinguish thinking something is true from proving something is true.

As an example, consider a custody modification case in which one parent contends that the child’s school teacher is unhappy with the other parent’s attentiveness to educational issues. That parent might present to the attorney’s office saying, “the school teacher thinks the other parent is a disaster and custody should be changed.” If one could prove this, one might have a good chance of getting custody changed. Merely alleging this fact without proof won’t change custody–and might result in that parent paying both parties’ attorney’s fees for bringing a meritless case.

One might increase the confidence level in this allegation by talking to the teacher. That teacher may well say that the other parent isn’t paying attention to the child’s educational needs and the teacher is unhappy about that. Talking to this teacher has increased the confidence level in this fact: before one thought this fact was true; now one knows it’s true. However this is still insufficient to prove one’s case. Often school teachers are willing to say something but unwilling to provide an affidavit to confirm it. That teacher might also be reluctant to testify at trial. In many cases, one might know various helpful facts but not have the present ability to prove them.

There are methods to go from “knowing” facts to “proving” them. In this example, one might depose the teacher and provide a transcript of the deposition at a motion hearing. One might subpoena that teacher to trial and hope that teacher testifies consistently with what that teacher previously said. If one has the budget, one might even depose the teacher prior to trial to confirm under oath what that teacher said, and then have the teacher testify at trial. While there’s always the possibility of the teacher testifying inconstantly with his or her deposition, this is likely a low risk.

To go from thinking something to being able to prove something requires investigation and, often, discovery. There are both temporal and budgetary concerns in moving to an increased confidence level in one’s evidence. Litigants often want immediate results and it takes times to develop increased confidence that one can prove factual allegations. Further a delay in seeking substantive relief can allow the other party to alter behavior in a way that reduces the likelihood of successful results (in this example, the other parent might use the delay in developing proof to improve his or her attentiveness to the child’s education). Often the amount of attorney time and litigation expenses necessary to develop proof of alleged facts might be greater than that party’s budget.

One can initiate litigation based upon facts one “thinks” or “knows” if one has a realistic plan and budget to prove these facts by the time substantive relief is sought (either a motion for temporary relief or trial). However seeking substantive relief on a foundation of facts one cannot prove is foolish. Tales of disappointing results often stem from the gap between what a litigant claimed and what a litigant could prove.

A lack of cognizance of these increasing confidence levels in evidence leads to these litigation disasters. Don’t confuse what you think with what you know, or what you know with what you can prove.

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