Section 1.32 Final Thoughts on Problems of Proof

• Library: Sources of Proof (2014 Ed.)

In the second edition of this deskbook, §1.21, entitled ‘“Untruisms’ of Proof,” set forth certain “truisms” about the trial of cases for which there was no empirical foundation or to which rebuttal was offered. There are so many, both true and false, that the author does not feel compelled to address them. On the other hand, there are certain general thoughts involved in the problems of proof that do seem to have a universal application. All involve perhaps the most difficult exercise for the busy trial lawyer: clearing the desk and mind of all distractions and thinking about the case. Before counsel makes a final decision, the following should be considered.

1. Does the theory of the case or defense make sense? This does not require total consistency or the exclusion of alternative avenues; rather, does the presentation of the gathered evidence that one believes to be admissible compel the conclusion desired? If counsel knew nothing about the case and overheard the theory being expressed by one stranger to another on a bus, would counsel reach the same conclusion? If not, perhaps the proof of counsel’s case should be reexamined along with the theory behind that case. It should be

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