Pre-Trial Hearings: Navigating the Establishment of Controversial Facts
The phase of identifying controversial facts in a pre-trial hearing is pivotal and complex for all involved parties. This phase determines which facts will require evidence and which will be accepted as agreed upon, thus not needing further proof. Both pre-hearing and during the hearing, meticulous attention is essential.
Understanding the Judge's Role
The judge's role in this phase can vary significantly. Ideally, the judge allows the parties to present their contested facts, distinguishing between those agreed upon and those disputed.
However, actual court practices reveal different scenarios based on the judge's approach:
Judge as a Facilitator: The judge gives each party the opportunity to outline the controversial facts. Following this, the judge finalizes the list, closely adhering to the presented facts.
Judge as an Active Participant: After hearing the parties, the judge actively engages in defining the facts, offering insights and assisting in their clarification.
Pre-Established Facts: The judge comes with a pre-determined list of controversial facts, allowing minimal input from the parties to modify or add to them.
Skipping the Phase: Sometimes, this phase is entirely omitted.
Importance of an Active Judicial Role
An active judicial role is crucial for clearly defining the dispute, aiding in the subsequent phases of evidence presentation and oral trials. Lawyers should ensure this phase is properly conducted, as it sets the foundation for the evidence to be presented.
Common Pitfalls to Avoid
A frequent mistake is confusing controversial facts with controversial legal arguments. Legal arguments are never subject to evidence. For example, determining if there was a six-month delay in the delivery of a property is different from debating whether this delay constitutes a breach of contract. It is incorrect to label "if the developer breached the contract" or "if the delay is a contractual breach" as controversial facts. Instead, it should be framed as "whether there was a six-month delay" or "if the delay was due to specific causes," such as adverse weather or strikes, which might be argued as force majeure.
Consequences of No Controversial Facts
If no controversial facts are identified, the case can be resolved without proceeding to the trial phase, simplifying the judicial process.
Final Thoughts
While the evidence phase in pre-trial hearings often receives significant attention, the phase of establishing controversial facts is equally, if not more, important. It is the precursor to evidence presentation. If a fact is not recognized as controversial, it is considered uncontested and not subject to further dispute. Therefore, lawyers must focus intensely during this phase to ensure all relevant facts are properly addressed.
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