Twining, W --- "Taking Facts Seriously Again" [2006] LegEdDig 39; (2006) 14(Spec Ed) Legal Education Digest 11

Taking Facts Seriously — Again

W Twining

(2006) 14(Spec Ed) Legal Education Digest 11

55 J Legal Educ 3, 2005, pp 360–380

In 1980 I delivered a paper called “Taking Facts Seriously” which is quite well known but has made almost no impact. My thesis was that the subject of evidence, proof, and fact-finding (EPF) deserves a more salient place in the discipline of law. The paper argued that the fact investigation, fact management, and argumentation about disputed questions of fact in legal contexts (not just in court) are as worthy of attention and as intellectually demanding as issues of interpretation and reasoning about questions of law. Addressed to a general audience, it was an argument about the importance of the study of facts in legal education.

Here, the intended audience is both specialists in evidence and academic lawyers generally. My aim is threefold: First, to restate the original thesis and to argue that it deserves support, not mainly or solely to mitigate curricular pressures, but rather because many of the issues are important to understanding and practicing law. Second, to consider how a coherent single law school course on evidence can be constructed in conditions of curriculum overload and neglect of evidentiary issues in other parts of the curriculum. Third, to suggest some ways in which the recent emergence of evidence as a multidisciplinary field in its own right might affect the study and teaching of evidence. I will briefly re-state the reasons why our subject is important.

Evidence is important in legal theory because it raises a range of theoretical issues that generally are not included in the agenda of most legal theorists. The practice of treating ‘legal reasoning’ as being solely concerned with typically hard questions of law is merely symptomatic of more fundamental distortions in the agendas of jurisprudence, as I have argued at length elsewhere.

Jurisprudence needs to take issues relating to evidence more seriously within a balanced conception of what is involved in understanding law. Neglect of those issues results in a distorted picture of adjudication, litigation, legal reasoning, and legal practice. Questions of fact and other evidentiary issues arise in every field of law. Discrimination, land disputes, and rape are standard examples. This point is widely recognised, but unevenly acted on.

When Jerome Frank argued that over 90 per cent of adjudication and pre-trial work is more concerned with doubts and uncertainties about facts than with disputed questions of law, he partly understated the case because he was only concerned with litigation and his main focus was on the contested jury trial. But the general message is basically correct — that inferential reasoning and other aspects of information processing are important in most contexts of legal practice and have been relatively neglected in legal education and training.

Skill in inferential reasoning is as much a part of ‘legal method’ as questions of law and as demanding. Within EPF, the main ingredients are: (1) managing complex data and constructing and criticising complex arguments, including such techniques for marshalling evidence as chronological tables; classifying evidence by source; Wigmore charts; and stories; (2) skills of inferential reasoning and microscopic analysis; (3) some basic numeracy skills; (4) constructing, communicating, and countering persuasive stories; and (5) ethical questions relating to all of these. Some seek to develop such skills in evidence courses.

Increasing attention has been given to comparative procedures and evidence and to the implications of globalisation of the study of law. I am told by civil lawyers that the idea types of ‘The Rationalist Tradition’ seem to fit civilian systems better than common law ones.

The thesis that EPF deserves a more central place within the discipline of law implies that the subject deserves more space within undergraduate and post-graduate degree programs. Either more attention should be given to evidentiary issues under the rubrics of legal method, jurisprudence, legal system, comparative law, or the like, or there should be room for at least two courses in the general area. However, until that thesis gains acceptance, we have to confront the problems of designing coherent single courses on evidence in a context of curriculum overload. In an interesting lecture entitled ‘Rethinking the Law of Evidence,’ Paul Roberts supported my argument, but criticised my advocacy.

Roberts sets out foundational principles for evidenced teaching based on an orthodox view of the first law degree as the final formal stage of a liberal education. It can contribute to this enterprise by ‘inculcating relevant, robust, and adaptable (more or less) transferable skills, helping students to become life-long learners, and promoting responsible citizenship.’

Wigmore divided the subject of evidence in legal contexts into two complementary parts: The ‘Principles of Proof’ (‘as given by logic, psychology, and general experience’) and ‘the Trial Rules.’ He argued that the Principles of Proof are anterior to the Trial Rules, are more important in practice, and had been neglected by scholars and teachers of evidence.

To construct a coherent framework for the study of evidence in law requires two further steps: a coherent picture of each of the two component parts and a coherent conception of the relationship between the two parts. I suggest that ‘The Rationalist Tradition of Evidence Scholarship’ model provides the most coherent view of the principles of proof. This can be encapsulated in the Benthamite proposition that the direct end of legal procedure is the pursuit of justice under the law through achieving rectitude of decision by rational means.

The Rationalist model provides a starting-point for considering the subject of evidence in law (EPF) as a coherent whole, including giving a context to the logic of proof, which in our tradition has its roots in the empiricist tradition of Sir Francis Bacon, Jeremy Bentham, John Stuart Mill, Stanley Jevons, and Henry Sigwick, since carried on by Jonathan Cohen, Stephen Toulmin, Douglas Walton, and David Schum.

There are, no doubt, several ways to present the rules of evidence within a coherent framework. My view, which is quite orthodox, is that our law of evidence is based on the Thayerite theory that rules of evidence are a series of disparate exceptions to a principle of free proof, where free proof means ordinary principles of practical inferential reasoning. One needs to understand the principle before studying the exceptions. That means understanding the logic of proof. A clear distinction needs to be drawn between learning about reasoning and learning how to reason. Basic skills of inferential reasoning about questions of fact need to be as much a part of ‘legal method’ or ‘thinking like a lawyer’ as basic skills of constructing and criticising arguments about questions of law. It is one thing to describe, interpret, and analyse the reasoning of judges or counsel; it is quite another to master the skills involved in constructing valid cogent, and appropriate arguments on questions of law.

If inculcating basic skills of inferential reasoning is desirable, how is this best done and how much time is needed? What Wigmore called ‘the logic of proof’ involves applying general principles of inferential logic in legal contexts. One possibility might be to require students to take a course on logic either as part of their degree or in a pre-law program (which is a more likely option in the United States). Another possibility might be to use a standard book on logic or critical thinking, supplemented by a few legal examples.

To sum up: understanding the logic of proof is a pre-condition to understanding the subject of evidence in law; understanding logic is best developed by a combination of theory and practice; mastering the methods of analysis involved in the chart method is laborious and time-consuming; learning the basics is less so. Despite its image, the chart method used intelligently and selectively is an efficient way of dealing with complex arguments about questions of fact and provides a foundation and a context for understanding and using the rules of evidence. Perhaps the most important development regarding evidence in the past ten years or so has been the emergence of evidence as a distinct multi-disciplinary field with a high public profile.

Undoubtedly the most influential development has been the fall-out from September 11, 2001. A common judgment has been that the intelligence services had enough information to anticipate the event, but lacked the capability to analyse it and ‘to connect the dots’. During the same period there have been developments in academic disciplines that have paralleled or responded to these stimuli. Not surprisingly, there is a movement to draw all of these disparate elements together into a single, coherent multi-disciplinary field.

It may be some time before their implications for teaching evidence in law schools become apparent. But evidence teachers would do well to watch this space. By establishing links with other disciplines, the range of accessible ideas and concrete examples is becoming much wider. Of course, non-legal and quasi-legal examples have been used in evidence teaching in the past: the judgments of Solomon, the Rosetta Stone, famous historical puzzles and mysteries, and Sherlock Holmes have been features in evidence courses and texts. The stock of examples that might be used in teaching is rapidly increasing.