The fourth step in legal reasoning is to research the facts to which the law must be applied. In a real sense, it is misleading to suggest that factual research follows the process of analysis and synthesis described in the prior chapters. As should have been clear from the introduction, the lawyer cannot even begin the legal reasoning process without a general idea of the circumstances to which the law is to be applied. Thus, a limited factual inquiry is, in fact, the first step of the legal reasoning process.


There is a constant interplay between factual research and the other steps of legal reasoning. The lawyer uses the basic facts known at the beginning of the inquiry to identify the likely sources of applicable law. As potentially applicable general rules are identified, the lawyer may realize that additional facts are needed to determine the applicability of the more specific rules defining, applying, or limiting the general rules. Thus, the lawyer continues to alternate between legal and factual research until all of the plausibly applicable rules have been identified.

At some point, the lawyer believes that the governing rules have been identified and synthesized into a framework. It is at this point that the lawyer must complete the factual research to make certain that all the relevant facts have been discovered. Thus, the fourth step really marks not so much the beginning as the end of the lawyer’s factual investigation.

While the factual research determines which rules of law may plausibly apply, the rules of law identified by the lawyer in turn shape the factual research. At the very beginning of the research, the lawyer conceives of the process as an attempt to determine simply what happened. As the legal research progresses, however, the lawyer comes to understand the potential legal consequences of the facts being researched. Very quickly, the lawyer begins to ask not simply what happened, but also whether the elements of the rules have been met.

Assume, for example, that the lawyer’s client was injured while on the land of another person. The lawyer is attempting to determine whether the landowner had a duty to warn the client about the particular hazard that caused the injury. Legal research identifies a rule providing that the landowner would have had a duty if the client was an invitee but not if the client was a trespasser. The lawyer’s factual research now shifts to determining whether the client was an invitee. If a factual detail does not make it more or less likely that the client was an invitee, then the lawyer regards that fact as irrelevant to the inquiry. The rules of law thus guide the attorney’s selection of facts.

The rules also shape the lawyer’s characterization of the facts. The lawyer cannot usefully characterize the facts in any way that seems intuitively appealing. Rather, the facts must be characterized as demonstrating that the elements were or were not met. Thus, in the example, the lawyer would characterize the facts as establishing that the client either was or was not an invitee.


The law has its own unique rules for factual investigation. To a scientist, a fact is that which can be empirically observed. To a lawyer in a dispute, a fact is that which can be proved to a jury or to a judge sitting as the finder of fact. Although a scientist may find it highly probable as an empirical matter that the accused was present at the scene of the crime, if a jury finds otherwise, then it is a “fact” for purposes of the trial that the accused was not present.

One way to keep this point in mind is to draw a distinction between evidence and facts. In a trial, evidence is the empirical information that the lawyer presents to the jury.1 A fact is that which the judge or jury finds to be true, which may or may not be consistent with most of the evidence.

The facts found by the jury may differ from the evidence adduced by the lawyer for at least three reasons. First, the law of evidence may exclude from the trial some of the information in the lawyer’s possession, and thus the jury may know less about the client’s situation than the lawyer does.2 Second, even assuming that all available evidence is admitted at trial, the evidence is very often incomplete, uncertain, or contradictory, and thus fact-finding will require some degree of inference and judgment, about which reasonable people can differ. Third, fact finders are influenced by predispositions that may cause one to perceive facts differently than another. The balance of this section discusses each of these three problems.

A. The Law of Evidence

The law of evidence prescribes rules that govern factual investigation in a court of law.3 A lawyer engaged in legal reasoning can assume that a fact is true only if that fact can be proved in court using admissible evidence. Like any rule, the rules of evidence may lead to injustices in a particular case, but they exist because they are thought on balance to result in more accurate fact-finding in most cases and, thus, to produce more justice in the trial courts.4 Although space does not permit a detailed summary of the rules of evidence, a description of a few of the main principles of evidence law will illustrate the kinds of restrictions on the use of information at trial that the law imposes.


In general, the jury is permitted to consider two types of evidence: oral testimony and physical objects, such as a document, a photograph, or a knife. Nontestimonial evidence must be authenticated. This usually requires that a witness identify the object. In this way, the jury knows that all evidence is what it is purported to be—the contract between Smith and Jones, a photograph of the intersection where the collision occurred, the knife found at the scene of the killing.

Further, the witness testifying or authenticating an object must lay a foundation for the testimony; that is, the witness must explain how he or she knows the information about which he or she is testifying. For example, if a witness is going to testify that Frank shot Ned, that witness must first testify to being present at the time of the shooting and being able to see it occur or must give some other acceptable explanation for having obtained the information. The witness can testify only to facts gained through observation and is usually not permitted to inject opinion or speculation.

A witness’s opinion is admissible when the witness is testifying as an expert. For example, the court would admit testimony by an expert in the field of surgery to the effect that a surgeon’s failure to utilize a particular procedure caused the patient’s injury. Expert opinion testimony is admissible because it is thought that, in deciding certain kinds of issues, lay jurors can benefit from the assistance of those with specialized knowledge or training.


Evidence is admissible only if it is relevant, that is, it tends to prove or disprove a fact of consequence to the action. This rule has two elements. First, the fact to be proved must be of consequence to the action. That is, the fact must be “material.” Second, the evidence must make it more probable or less probable that the fact is true.

For example, assume that the defendant is alleged to have committed a battery by punching the plaintiff in the face. The defendant’s testimony that he eats a hamburger every day for lunch would not be material because the defendant’s diet is not a fact of consequence to the claim of battery. A lab technician’s testimony that the plaintiff’s blood was found on the defendant’s hand would be admissible. First, touching is an element of a battery. That is, the occurrence of a touching is a fact of consequence and, therefore, is material, to the battery action. Second, evidence that the plaintiff’s blood was on the defendant’s hand makes more probable the fact that the defendant touched the plaintiff. Accordingly, the evidence is relevant.


Even though evidence is authenticated and relevant, it may nevertheless be excluded because of concerns about its reliability or its potential to prejudice the jury, or for other reasons. It may be useful to consider an example of evidence that is excluded for each of these reasons.

a. Unreliability: The Example of Hearsay

Hearsay is the classic example of evidence excluded because of its unreliability. Hearsay is an out-of-court statement offered into evidence for the truth of the matter asserted in the statement. Because the statement was made out of court, the jury cannot assess its reliability, and thus it is excluded.

For example, assume that an issue at trial is whether the gun belonged to the defendant. Assume, moreover, that the defendant’s ex-girlfriend Marsha told a police detective that the gun did belong to the defendant. The detective nevertheless could not testify in court about Marsha’s statement because her statement is hearsay. That is, her statement was made out of court and is being offered into evidence as proof of the matter asserted in her statement, which is that the gun belonged to the defendant.

Like most hearsay, Marsha’s statement is of questionable reliability. Perhaps Marsha was intoxicated at the time she asserted this, perhaps she lied because she was angry with the defendant, or perhaps she was merely mistaken. If the prosecutor wishes the jury to conclude, based on information available to Marsha, that the gun belonged to the defendant, he should call Marsha as a witness and have her testify under oath, allowing defense counsel the chance through cross-examination to test the reliability of the testimony.

The statement would not be hearsay if it were offered to prove something other than the matter asserted in the statement. For example, assume that the prosecution wished to prove that Marsha feared the defendant because she thought he was a gun-toting gangster and thus was testifying against him reluctantly.5 Her statement that the gun belonged to the defendant would be admissible to show not that the gun actually did belong to him but only that she believed that it belonged to him and thus feared him. In that situation, the fact that her statement about gun ownership is unreliable is unimportant because it is being admitted only to show her belief, not the actual fact of ownership. Because the unreliability of the statement with respect to the defendant’s actual gun ownership does not undercut its reliability with respect to her belief about his gun ownership, the court is likely to admit it into evidence for the purpose of showing Marsha’s belief. The statement would continue to be inadmissible for the purpose of proving ownership of the gun.
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