The proof: friend or enemy?

Written by: Sergio Escobar


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


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


I) The design of the legal strategy, a task that corresponds exclusively to the lawyer and is executed once the conflict arose between the parties and there is clarity about what happened. This broadly 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 people who were directly involved in the business now in conflict. This task is often not given the importance it deserves, bringing with it disastrous results when structuring cases with legal support, but without support to justify the alleged facts. This work essentially aims to collect, classify and timely present the supports of the claim or defense that is presented. It is up to the lawyer in a special way to determine if said 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 that controversy.


Must not lose sight that the evidence is a patient friend for the plaintiff, since to a large extent it has all the time that is necessary to collect and present all the evidence that is at hand to justify a case, present a “robust” and “solid” claim like an oak tree. The worst enemy of a plaintiff is rushing to file a claim without sufficient support for it to be declared admissible. On the contrary, the evidence for the defendant is an impatient enemy, since the term to present the evidence is usually extremely short, a defendant can never be passive when seeking the supports of his defense, an aspect on which awareness must be created to adopt the measures that allow reducing the search curve of the elements with which it will be defended.

Now, the proof will be our best friend, as long as its credibility is robust enough to justify our case, on the contrary, the proof could be our worst enemy:


I) When it is not possible to obtain and present it on time;

II) When it is not enough to demonstrate what we request or;

III) In the worst scenario, it simply does not exist, which represents the maximum 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 compared to the counterpart that diligently documented the supports of your case.


With the experience gained, one of the most frustrating situations for a lawyer is when a person who is right requests advice, 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 you might imagine. The risks associated with the absence of supports can be reduced and, in many cases, overcome with an early participation of legal advisors whose purpose is to prepare adequately and timely the day-to-day supports for our clients’ businesses.


In this sense, contrary to what could be imagined, the supporting documents of the claims are born or generated in the day to day of a contractual or commercial relationship, which is why it is a recommended practice to involve legal advisors before the birth of the controversy. This is intended to provide immediate advice during the execution of the projects regarding how to support the background, centralize communications and pay attention to the language to write communications on non-compliance. In general, it contributes to the preparation of the different supports that will serve as a basis in the context of a future claim, it 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.


Due to the foregoing, early advice is appropriate for the handling of a dispute to come to fruition for the interests of our clients, in which we make ourselves available to work hand in hand in structuring an appropriate and satisfactory solution that can give response to the different controversies that you may face in the daily life of the economic aspects, in order to increase the chances of success in obtaining a resolution favorable to the interests of you as our clients.


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