Allegations and Elucidation: The Facts That Become the Object of the Trial

Abstract

This volume asks whether a fact in the materials can drop out of relief because it was not submitted as a party's assertion. A fact that exists in the record differs from an assertion placed before the court for adjudication. Elucidation exposes gaps, but it is not a power for the court to construct every assertion on a party's behalf. The path to relief opens where it is made clear which facts are asserted and disputed and the necessary opportunity for explanation and proof concerning unclear points has been afforded, and closes where a means of attack or defense whose purport is unclear has been dismissed because no explanation was given even after the statutory opportunity to supplement it. The six sections address, in turn, the distance between materials and assertions, elucidation of factual matters, the path to seeking the opposing party's explanation, the issues that preparatory proceedings leave behind, means of attack and defense whose purport is unclear, and the opportunity and limits for supplementing facts. The strongest counterargument is as follows. Requiring the form of assertion from a party without legal knowledge weakens the substantive right to be heard. The drafting of case requirement tables and general guidance on self-representation is not addressed in this volume.