Once you have decided that you want to legal action, there is a law you can base your claim on, you are able to take legal action and you have identified the right defendant, you will have to prove your case.
By «prove your case», we mean that you will need to:
(i) Have evidence that supports your «version of events» (i.e. what you are saying has happened); and
(ii) Have a strong legal argument that shows that your version of events has involved a breach of the law.
Only when you prove your case can you get a judgement in your favour and secure a remedy.
A key concept in legal cases is the «burden of proof«. The burden of proof dictates who need to prove their case. It’s important you know who has the burden of proof before taking legal action.
If you bring a civil claim, you will need to provide evidence to support your claim. In other words, you have the “burden of proof” to prove your claim.
To succeed, you will need to:
Focus Point: A Shifting Burden of Proof
In some cases, the burden of proof can shift to the defendant. For example, in discrimination cases in many jurisdictions, the claimant has the burden of proof to show that the defendant treated them differently to persons in a similar position on the basis of a protected characteristic (e.g. race, sex). However, when the claimant proves this, the burden of proof shifts to the defendant to show there was is a legitimate and reasonable explanation for the differential treatment.
The shifting of the burden of proof in these cases makes it easier for the claimant to prove their case.
Usually, the public prosecutor (the state official seeking to convict the defendant) has the burden of proof to prove that a crime was committed and the crime was committed by the defendant. To prove this, they rely on investigative authorities like the police to collect evidence.
If you have the burden of proof, you have to prove that all the «elements» of the crime or civil wrong your claim is based on have been committed and that the defendant is responsible. Elements are the ingredients of the crime or civil wrong. They are the key acts, omissions, states of mind or circumstances that must occur for the crime/civil wrong to have been committed.
Identifying the elements that apply to your case is a key part of your legal analysis. Once you identified the laws that your claim could be based on (see What Laws Can I Enforce?), it is important to conduct research to find out the elements and make a provisional analysis on whether they could be proven in your case.
Once you have identified the elements, you have to prove that they have occurred to the appropriate «standard of proof«. This is the level of certainty with which you need to show that the crime/civil wrong was committed.
You will need to have evidence that shows:
- What: What was the nature of the harm? (e.g. pollution or physical injury)
- Where: Where did the harm take place? (e.g. the town, river, region)
- When: when did the harm occur, or is it still happening?
- How: How was the harm caused?
- Who: What businesses or individuals were involved in the activity that caused the harm?
The standard of proof in civil cases is often called the «balance of probabilities«. This means that you have to prove that it is more likely than not that the elements of the civil wrong your claim is based on has been committed.
What exactly you will need to prove will depend upon the type of civil claim that you bring. Below is an example:
In essence, this means you have to show one party to the contract offered the other party someone of value (e.g. money) for something in return (e.g. a service). You also need to show what the "terms of the contract" were (i.e. what precisely was agreed). For example, the defendant promised to pay you to build a wall.
This means that you held up your end of the deal. For example, you built the wall in the agreed time.
This means that the defendant did not do what they said they would do in the contract. For example, they did not pay you for building the wall.
You need to show the breach of contract caused you loss or damage. For example, the defendant's failure to pay you caused you to fall into debt.
To get a full remedy for the harm caused, you need evidence of the specific harm that flowed from the breach of contract.
The standard of proof in criminal cases is often caused «beyond reasonable doubt«. This means that the judge or jury has to be «sure» that the defendant committed the elements of the crime. This is a high level of certainty that means it can be difficult to successfully prove criminal cases.
The prosecuting authorities have to prove beyond reasonable doubt that:
These elements and the tests of causation (what is needed to show the defendant was responsible) depend on the particular criminal offence as defined in the criminal code.
For example, if the offence of theft is defined as “the taking of another person’s property without that person’s permission, with the intent to deprive the owner of it”, a prosecutor would need to prove the following elements:
It has to be proven that the thing you are arguing was stolen existed at the time. For example, there was 5 cattle in a certain field.
It must be shown that the property allegedly stolen was not the thief's. For example, you owned the cattle.
For example, the cattle were taken from the field.
For example, the owner of the cattle did not want the cattle to be taken away.
This means that the defendant meant to steal the property. They did not take it by accident or think it was ok for them to take it. For example, the defendant knew that the cattle belonged to you and he was taking them without your consent.
Once you know what you need to prove, you need to gather evidence to show that the crime or civil wrong was committed. Collecting evidence takes time and may involve contacting and meeting people (victims, witnesses, experts etc.), or going to the place where the wrong was committed. When collecting evidence to support your case, you have to respect the law and the rights of others (e.g. the right to privacy). Evidence obtained unlawfully often cannot be used in court.
The section will give you a brief overview on evidence gathering techniques. For more information, look out for the upcoming A4J Evidence Gathering Guide.
Before starting your research, it is important to decide which part individual company you want to sue (see Who Can I Sue?). If you add the want defendant to your claim, you may be able to amend this at a later date but it could lead to your case being struck out or dismissed. That’s why, if it is not clear who the precise identity of the defendant is, that you gather evidence to find this out.
Careful research is needed to ensure you have identified the correct target and that the company is worth suing (i.e. does it have enough assets to pay compensation?).
Names of people, companies and organisations are sometimes difficult to find.
The following sources of information may help you overcome these obstacles:
Company and business registers
Business registers may be produced by public or private bodies.
Using the register, members of the public can generally find out;
The content of company registers is usually regulated by law, and the information provided varies from country to country.
Sometimes fees are charged to access a register. If the fees are very high, you could ask (pro bono) corporate lawyers to help you; they often have annual subscriptions to company registers since they use them everyday.
For further information on company registers, see:
The main legal documents for state-owned companies may not be available in company registers, but may be held by the public bodies which set up the company.
In some countries, the organisational structure and operational rules of a state-owned company may be defined and detailed by national legislation.
Other “legal persons”: associations, foundations, trusts
These won’t be listed on national registers of companies, but details about such organisations may be recorded in other registers.
Some organisations are not “legal persons” and may not be registered anywhere. These are known as “unincorporated associations”. For “unincorporated associations”, you need to identify the natural persons associated with them. These individuals can be held responsible for the actions of the organisations.
Finding out who runs informal organisations can be difficult;
Company reports and filings
Companies often have to make reports and make information publicly available.
If you want to take legal action against an individual (sometimes called a “natural person”), the first question is in what capacity is he/she relevant to your case? For example, are you taking legal action against someone because of their role as a director of a company? Or because they are a public official or government minister?
When you have answered that question, the following sources may provide information on the individuals in question.
Association with an organisation
If you are looking for an individual who may be the owner, representative, or office holder of a company, or other organisation, check company registers to find out information about the company.
Office-holder in a public body
When senior public office holders are appointed, information on their positions are usually published. This often appears in official journals of the country.
Freedom of information laws also cover public bodies (see Access to Information);
Government bodies often hold databases which can help you research information on individuals.
You will first need to prove that you have a legal interest in obtaining information about that person.
When researching individuals, their right to privacy may limit what information you can access and use.
For a successful legal action, you need to know more than simply who has done something harmful. You need to know what has been done, and why and how it happened. This section outlines a number of sources that could help you find information about defendants’ activities.
You can find much useful information readily accessible in publicly available sources. Publicly available information could include:
In most countries, private companies and individuals can only operate certain industrial or trade activities if they obtain licences. The riskier a business is, the more licences are required and the more complex those licenses may be.
The details of these licences are normally held by the public office charged with oversight.
Sometimes, public offices have to publish license information:
When public bodies are reluctant to share the information you need, you will need to make a freedom of information request or turn to other sources, such as information from non-governmental organisations or international organisations.
Public funds and public contracts may be an important source of information for preparing your legal action. This includes Information on the financial transactions of public bodies, and individuals or companies involved in public contracts.
Try accessing this information through information requests to public bodies and through checking information in published sources.
Here are some examples of useful information sources you could try:
- Budgets of public bodies;
- Awards of concessions and contracts (common in communications, transport and extractive industries);
- Public procurement (process when public bodies purchase goods/services);
- Subsidies and loans by state-owned financial institutions;
- Privatisations or public auctions;
- Development projects;
- Organisations that monitor aid or development activity (e.g. Bankwatch; an organisation dedicated to monitoring use of international financial institutions operating in Central and Eastern Europe. Publish-what-you-fund; a not-for-profit organisation that campaigns for transparency in aid funding);
- Disaster recovery funds;
- Tax records; and
- Revenue and incomes data (e.g. the Extractive Industries Transparencies Initiative collects information on incomes in the extractive industry in some countries).
Other legal cases can be very important sources of information for your own legal action, where one of the defendants is involved. In any court case, evidence is provided and analysed before the court. The evidence produced in other cases can provide details about the nature of a company/person, its activities, and the broader issue.
In different countries and cases, rules vary on who can have access to courtrooms and case files;
However, the right to a fair trial generally means court hearings and case files are public. Therefore, most information about court cases can be accessed by the public.
Key Resources: General Investigative Research Tools
Check out and use the following toolkits designed for investigative journalists:
- Global Investigative Journalism Network
- Investigative Reporters and Editors | Resource Center
- Investigative Dashboard: helps investigators expose illicit ties that cross borders.
- Global Investigative Journalism Casebook, UNESCO
Documentary evidence is generally viewed as the best form of evidence. When compiling the evidence for your claim, prioritise the collection of documentary evidence.
Try and get the originals of the documents that you need. If you can’t get the originals, gather evidence showing that the copy is an authentic copy of the original.
Keep paper and electronic copies of all evidence.
Official documents are formal documents that have legal authority. These are highly reliable. These include:
Emails or letters you have with different actors (victims, the defendant, administration, organisations etc) counts as evidence.
Write down notes on all the meetings you have with the parties involved in the case, and make them sign the notes.
If you have suffered physical harm, a medical certificate, made by a doctor or other medical professionals, stating that you have suffered an injury can be useful.
Research by independent experts can also be very useful.
It is important that the date of all photos or videos evidence is clear and available.
It is also important that the picture or video can identify the place where it was taken;
You can use websites and other information found on the internet, by saving the address on a document, copying the article, printing it or even by taking a print screen.
Declarations made by the victims or witnesses, asserting the existence of some facts are very important (these can be called testimonies). They might be written or spoken.
While collecting the testimonies, you have to register the identity of the person who is testifying, by taking her name and identity information and having her sign the testimony.
Declarations or statements made by witnesses are very important evidence in legal cases. These are called «witness statements».
Key Resource: The A4J Guide on Witness Statements
The A4J Guide provides you with information on what should be included in witness statements, how they should be structured and formatted. This is a useful tool if you need to take a witness statement without the assistance of a lawyer.
If the person who testifies wants her identity to be kept secret, you still need to have her identity information, but you can ask the judge not to reveal this information to the accused/defendant.
Collecting evidence costs money. You will need to take this into account when deciding if you are going to undertake litigation.
The costly parts of gathering evidence include:
For further information, see How Can I Finance my Action?