Some Remarks on the Importance of Evidence Outside Trials
26 Pages Posted: 24 Jan 2018
Date Written: January 23, 2018
The significance of evidence for trials tends to overshadow the important roles played by evidence throughout other litigation stages and, indeed, throughout the law. This article, prepared for a symposium in The Review of Litigation, discusses the significance of evidence and evidentiary considerations for non-trial legal issues. Part I unpacks the different ways in which evidence may be important and different senses of “evidence” (rules, doctrine, exhibits and testimony, the process of proof, facts, evidence courses, and evidence scholarship), and it discusses the roles that these categories play throughout the litigation process. Parts II and III focus in detail on the contexts of summary judgment and pleadings, explaining how these pre-trial issues are informed by the process of proof and the legal rules that structure this process. Part IV briefly discusses the importance of evidence outside of litigation.
Keywords: evidence, rules of evidence, litigation, facts, standards of proof, summary judgment, pleadings, motions to dismiss, judicial notice
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