The test, friend or foe?

By: Sergio Escobar

The evidence ideally constitutes the soul or essence of a process, allowing the Judge to have proven knowledge of what happened, that is to say, reasonable certainty about the facts presented by the parties. The person who settles a controversy must be convinced as to: What happened, so that based on the credibility of the case that was presented by the plaintiff or defendant, he will resolve what corresponds, this means that the absence or insufficiency of adequate proof constitutes a formula that will probably lead to an adverse resolution to the detriment of the party that has no justification of its position.

From an extraordinarily elementary perspective, the pillars of a judicial process are built around two axes:

I) The design of the legal strategy, a task that corresponds exclusively to the lawyer and is executed once the conflict was born between the parties and there is clarity about what happened. This, broadly speaking, aims to determine the allegations on the legal basis that justifies the claim or defense that is presented.

II) The design and implementation of the evidentiary strategy is a joint task of the lawyer and the business area of the company or the persons who were directly involved in the business now in conflict. This task is often not given the importance it deserves, bringing disastrous results by structuring cases with legal support, but without support to justify the alleged facts. In essence, the purpose of this task is to collect, classify and present in a timely manner the supports of the claim or defense that is presented. It is especially incumbent upon the attorney to determine whether such supports are adequate and sufficient to justify the position of the party he represents in order to have a clear perspective of the potential scenarios of such controversy.

It should not be lost sight of the fact that the evidence is a patient friend to the plaintiff, since to a large extent he has all the time necessary to collect and present all the evidence at hand to justify his case, that is, to present a “robust” and “solid” claim like an oak tree. A plaintiff’s worst enemy is to rush to file a claim without sufficient support to have it declared admissible. On the contrary, the evidence for the defendant is an impatient enemy, since the term to present the evidence is usually extraordinarily short, that is to say, that a defendant can never be passive at the moment of looking for the supports of its defense, aspect on which it must be created conscience to adopt the measures that allow to reduce the curve of search of the elements with which it will be defended.

Now, the evidence will be our best friend, to the extent that its credibility is sufficiently robust to justify our case, on the contrary, the evidence could be our worst enemy:

I) When it fails to be obtained and presented on time;

II) When it is not sufficient to prove what we are requesting or;

III) In the worst scenario, it simply does not exist, which represents the ultimate formula for failure, since what does not count in the case file, does not exist for the Judge of the controversy. These circumstances would place us in a situation of absolute disadvantage in front of the counterpart who diligently documented the supports of his case.

With the experience acquired, one of the most frustrating situations for a lawyer is when a person who is in the right, but unfortunately there is no human way to prove his position (someone who paid a debt in cash, but did not document the payment, etc.), an aspect that is more usual than could be imagined. The risks associated with the absence of supports can be reduced and in many occasions overcome, with an early involvement of legal advisors aiming to prepare in an adequate and timely manner the day to day supports of our clients’ businesses.

In this sense, contrary to what might be imagined, the justifications for claims arise or are generated in the day to day of a contractual or commercial relationship, which is why it is a best practice to involve legal advisors before the dispute arises. This is intended to provide immediate advice during the execution of projects on how to support the background, centralize communications and pay attention to the language for drafting breach communications. In general, it contributes to the preparation of the different supports that will serve as a basis in the context of a future claim, allows legal advisors to be steeped in the historical memory of the background of the case, thus reducing the risk of facing the scenario of an adverse resolution due to the absence or insufficiency of evidence.

Therefore, an early advice is adequate for the handling of a controversy to reach a successful outcome for the interests of our clients, with which we put ourselves at your disposal to work hand in hand in structuring an appropriate and satisfactory solution that can respond to the various disputes that you may face in the daily life of your economic life, in order to increase the chances of success in obtaining a favorable resolution to the interests of you as our clients.