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To build your case, you need to answer these four questions:
1. What Am I Asking For?
Judges make decisions on the issues brought to court. Ask yourself: what do I want the judge to decide? You need to be realistic. Deciding what you ask for depends on what you are legally entitled to. A judge can only make an order that follows the law. For instance, a judge won’t award you spousal support if you don’t meet the definition of a spouse.
You need to understand the law and your legal rights before you decide what order you are asking the judge to make.
To figure out what to ask for you need to know:
You can learn these things through reading and researching the law or asking a lawyer. As an example, take a look at the case study to see how you can use legal knowledge to determine what to ask for.
You must include what you are asking for (the order you seek) in your pleadings (court forms such as your application or notice forms). The judge cannot grant youan order for something that is not found in your pleadings. If your application is for child support, you shouldn’t go to court trying to get a division of your bank accounts.
2. What is the Law?
Legal research will help you answer this question. It’s good to know the law that supports your claim. You’ll want to be able to refer to the specific section of the law that gives you the right to what you want. For instance, if you want an order giving you spousal support, you’ll be relying on s.160, 161 and 162 of the Family Law Act which gives spouses the right to claim spousal support.
3. What Do I Need to Prove?
Through legal research you found the law giving you the right to what you are claiming. This next step is to determine what you need to prove so that the law applies. When thinking about what you need to prove, you have to think like a judge. What will the judge want to know? Remember, a judge can only make orders that follow the law.
If the law says you’re entitled to a free horse only if you’ve lived on the moon for a year, a judge can’t give you a horse if you’ve never lived on the moon. If you want a free horse, think “how can I prove that I should get one”. Break the law down into its elements.
You get a free horse only if you’ve lived on the moon for a year.
Broken down, there are 2 elements you need to prove to get that free horse:
Showing the judge how good of an owner of the horse you will be won’t help your case.
This is a very silly example, but it shows how you need to work within the legal requirements set out in the law. The best way to do this is by breaking down the law into its legal elements. Once you’ve figured out what elements you need to prove, you can start thinking about proving them.
4. How am I going to prove it?
Once you’ve figured out what you need to prove, you can think about how best to do this. You will need to bring in evidence to prove your position. Refer back to your Evidence Inventory Worksheet. This should give you a good idea of what evidence you have. If there is evidence you’re missing, make note of it and try to obtain it. For each point you’re trying to prove, you should have some evidence to prove it.
IMPORTANT: This page provides legal information, not legal advice. If you need legal advice consult a lawyer.
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