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Scottish courts and the law
Scottish courts and the law

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2.1 Factors to consider when building a case

The Blumen Lus Flowers scenario illustrates how even an apparently simple scenario can involve both the criminal and the civil justice system. It also illustrates the need for careful collection of the facts and evidence, and to consider all possible outcomes. Don’t worry at this stage if you aren’t familiar with all the terminology that has been used or if you did not follow every step in Floss’s and Victoria’s story. The purpose of the scenario was to illustrate why a starting point is necessary when thinking about building a legal case and why it can be likened to constructing a building, as a legal case also needs solid foundations.

In summary, the following must be considered:

  1. What event has happened?
  2. Was there an applicable law?
  3. What evidence is needed to prove breach of an applicable law?
  4. Are there any complete, or partial, defences.

If answers can be found to those four questions, then the process of building a case can begin.

In the scenario above, the answers to the four questions are as follows:

1. What event has happened?

Several identifiable events have happened.

  • Floss drove through a red traffic light.
  • Floss drove the wrong way up a one-way street.
  • Floss drove ‘too fast’.
  • Floss crashed into Victoria on a bend in the road.
  • Floss has no defence.

2 Was there an applicable law?

There are applicable laws to each event:

  • a number of driving offences appear to have been committed – criminal unlawful conduct
  • delict (in particular negligence) – civil unlawful conduct.

3. What evidence is needed to prove breach of an applicable law?

Evidence will be needed to prove that Floss has committed the driving offences (criminal unlawful conduct) and to prove that there has been a breach of duty of care and proof of the damage caused as a result (to establish grounds for a case based on the delict of negligence). This evidence will consist of some of the items already stated.

4. Are there any complete, or partial, defences?

A complete defence is one when its facts are proven completely absolves the defendant and ends the case. By raising a partial defence the defendant hopes to mitigate the outcome of the case against them. We are told Victoria is driving in the correct manner. There is, however, no indication of the speed of her vehicle. If the pursuer proves Floss was driving too fast and that this contributed in part to the severity of the accident the damages she receives may be reduced. In this sense Victoria has a partial defence.

Other procedural matters

An experienced lawyer will automatically consider a wealth of other procedural matters. These will include:

  • Is it a civil or criminal matter?
  • Who has the burden of proof?
  • What rules of evidence apply?
  • Who can bring the legal case (who is recognised by the court as having standing)?
  • What laws apply and what procedures need to be followed?
  • Is there an alternative to court action?
  • What remedy/punishment/settlement is being sought?
  • Is a courtroom the best place to resolve the matter?
  • Against whom should a case be brought?

However, the emotional costs of bringing or participating in a case and the merits or otherwise of individual legal cases are not matters that are often discussed. Lawyers tend to make decisions based on the evidence with which they are presented, by remaining impartial and by applying the law. These decision-making skills are important and have been developed to ensure that all sides are considered and weighted up when making decisions, and that those decisions are based on evidence and not emotion.

Whilst established procedures for bringing and conducting cases (case management) and progression of a case through the courts - court judgments are based on the facts and evidence presented. Here the individual deciding a case (usually a judge) has some discretion in weighing up the facts and evidence presented.