Facing Facts: The Teaching of Fact Construction in University Law Schools

AuthorDonald Nicolson
Publication Date01 Jul 1997
DOI10.1177/136571279700100303
SubjectArticle
Facing facts: the teaching
of fact construction in
university law schools
By
Donald
Nicolson
University
of
Bristol
he crusade to persuade university law schools to devote more time to
facts and fact-finding has a long and sorry history (Twining, 1990:
13-19). William Twining, the most eloquent and persistent of the
British crusaders, has likened this task to that of Sisyphus condemned
perpetually to push a boulder to the top of a hill, only to find it always rolling
back down again
(ibid.
15).
It would seem as if law schools simply do not want
to face facts. In the hope that the launch of this journal might represent a
more receptive atmosphere, and that weight of numbers might succeed
where Sisyphus’ lone perseverance failed, this article adds another voice to
those who believe that the study of fact-finding is as important as the study
of
law and legal methods. In particular, it argues that all university law students
should learn of the importance of facts and fact-finding in law, some basic
factual skills and the contexts in which fact-finding takes place.
Why
law students should face facts
If an important, albeit not exclusive, aim of university legal education is to
help prepare law students for legal practice, then the need to study
fact-finding in law seems obvious. It is indisputable that most lawyers spend
far more time dealing with facts than with law (Frank, 1973; Maughan and
Webb. 1995: 69-70). According to one survey, practising lawyers only spend,
on average, an hour a week using technical legal knowledge (Campbell, 1976:
209). Similarly, if an important task of lawyers is to predict the outcome of
their clients’ cases and to investigate all determining factors (e.g. Holmes,
1897). then attention ought to be given to the process of fact-finding which is
far more influential over the outcome of cases than factors affecting the
interpretation and application of law (see e.g. Frank, 1949: ix-xiv; 1973).
Despite this, British legal education has traditionally either ignored
or.
at
132
THE
INTERNATIONAL JOURNAL
OF
EVIDENCE
81
PROOF
FACT CONSTRUCTION TMCHING IN
LAW
SCHOOLS
best. provided a misleading impression of the process of fact-finding.’ Thus,
notwithstanding their titles. evidence courses and textbooks have tended to
focus almost entirely on the law relating to the proof
of
facts in court (but c.f.
McEwan. 1992).
Hours
are spent on technical, complicated and often
contradictory rules, the exceptions to these rules, and sometimes even the
exceptions
to
these exceptions. Consequently, apart perhaps from some
discussion of issues like miscarriages of justice, and psychological research
on eyewitness testimony and confessions, the skills students learn largely
replicate those in substantive law courses (c.f. Twining, 1990: Ch.5).
Indeed. it is in the latter courses that most students encounter facts and
fact-finding. Perhaps the first and most enduring contact is through decided
cases. Snails in ginger beer bottles, carbolic smoke balls and cricket loving
cows) help law come alive and live in the memory of first-year students.
Students may learn that the facts of cases are important in influencing their
outcome, perhaps even that ‘everything depends on the facts’. Facts also play
a more concrete role in the distinguishing of cases and reasoning by analogy.
Finally, students will encounter facts
-
albeit of a notoriously artificial nature
-
in numerous tutorial and examination problems.
However, both case reports and problem questions tend to convey the
impression that facts exist pregiven, ready for the application of the only
skills worth teaching
-
the interpretation and application of law? Competent
law lecturers teach that the legal rules are neither static nor always clearly
defined. They have to be interpreted and applied by judges and other legal
actors, who in doing
so
frequently make new law. In short, law is constructed
rather than merely applied. By contrast, influenced by the ‘upper court myth’
(Frank, 1949: xii-xiii; 1973: especially Ch.
xv)
or
suffering from ‘appeal
courtitis’ (Twining, 1990: 157). law schools treat facts as concrete entities
which arrive neatly prepackaged in appeal courts. They may affect the way
appeal courts construct the law, but they are not themselves constructed.
Even
if
one does not go as far as Nietzsche, who denied the very notion of
‘facts-in-themselves’ and asserted that instead of ‘facts’ there are only
interpretations from specific perspectives (Nietzsche, 1968: especially book
1
The
following description is intended as an ‘ideal type’ and hence of necessity runs the risk of
caricature. Many law schools now have courses on legal practice
or
legal skills which raise issues
of fact-finding. although these tend to be optional.
2
See Lord Denning
MR
in
Miller
v
Jackson
119771
3
WLR
20.
3
Some lecturers may leave the facts in problems open-ended
so
that students may explore how
the legal solution will differ according to what facts are found
to
exist. but this only ameliorates
the problem. The continuing focus on legal construction tends to overshadow any message
regarding the amorphous nature of facts.
THE INTERNATIONAL JOURNAL
OF
EVIDENCE
&
PROOF
133

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