Thursday, June 23, 2011

Digging into evidence

In one of my recent posts I discussed the difference between information, data and facts. From my perspective as a trial attorney, facts are that part of the information and data I can use at trial to prove my case. Facts can either be probative or non-probative. Some facts are important to set the scene and introduce the parties, these would be non-probative facts. Probative facts support the client's claims either as proof of the claim or defense against the claim of another. Depending on the questions presented by the case, the facts necessary to prove the case may change.

Here is an example. Let's suppose that you are trying to prove ownership of a parcel of real estate. Since ownership is the issue, any facts about the claimant would likely be non-probative. Here is a hypothetical situation:
Doe lives in a house in a rural subdivision with a barn and horse pasture. There is a fence between his property and that of his neighbor, Roe. One day Roe approaches Doe and says that he believes the fence line is not really the property line, and that his property includes twenty feet past the fence line onto Doe's property. Doe obtains a survey and finds that Roe is correct, the actual boundary line of the property is 20 inside the fence and cuts right through Doe's barn.
Doe comes to me with the situation and asks what he can do about keeping his barn and what he thought was his property. Do I have enough information to answer Doe's questions? If you were an attorney, you would say, obviously not. What questions would you like to ask Doe? Obviously, nothing like this would ever happen to you or me, we would have checked the boundaries of our property before we purchased?

I would ask, at least, the following:
  • When did he buy the property?
  • How long has the fence been on the property?
  • When was the barn constructed?
  • How does Doe use the property and what has he done to maintain the fence?

You can see what kinds of information I need to advise Doe of his legal rights. Let's say I ask the questions and Doe says the following:
"I was born in Michigan in 1956, I am married with six children and work as an insurance salesman for a major insurance company." Doe also tells me the ages of each of the children and how they are doing in school.
Is the information I got from Doe probative of his claim to the property and the barn? Did he answer my questions? Do you think I get this kind of information all the time that isn't even vaguely related to the issues? To provide the answers, no, the information is not probative. No, he did not answer the questions. Yes, I get that kind of information all the time, usually in a long narrative format.

Now, how does this example relate to genealogy? I find exactly the same type of situations that I encountered every day in law practice. I help people with a particular question about an ancestor. They may have a lot of information but none of the information they have either answers the question or provides a way to discover the answer. In the case of Doe, the information about his family, occupation and birth are helpful, perhaps interesting and certainly useful for other purposes, but they do not address the problem I am trying to solve. In the case of Doe and the property line, I would just keep asking questions until I got the answers. In the case of genealogy I would just keep asking questions and doing research until I got the answers.

What would I need to prove Doe's claim to the property. First, you might want to know that there is a statutory claim for adverse possession. That means that if you have open and notorious use of a piece of property, with a claim of right, for the statutory period to the exclusion of others, you may obtain ownership of the property by adverse possession, in which case you would now have a good idea of which facts you would have to have to prove your client's case. You might want to know one more crucial detail, the length of time Doe has used the property. In Arizona, for example, the length of time it takes to obtain an interest in real property by adverse possession is ten years. It may be longer or shorter in other jurisdictions.

Answering genealogical questions is very similar. Before you can come to a conclusion as to the "facts" of your ancestor's relationship to you, you have to know what the questions are and also what is needed to "prove" the relationship. Just as with the law where I need to know the legal context i.e. the elements of a claim for adverse possession, in genealogy I need to know the historical context.

 What documentary evidence would you need from Doe? Which of the facts would get reclassified as "evidence" of Doe's claim to the twenty-foot strip?

This will obviously keep going for a while, so stay tuned.

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