The model presented in this article has emerged through the work at the Norwegian Research Center for Computers and ´Lawª and the projects carried out as part of the research program In legal informatics, NORIS. 1 am indebted to many of my colleagues for suggestions and comments. A number of earlier versions of the model has been developed, cfr. Bing/Harvold 1973: 240, Bing 1974: 100402, and Bing 1975. This article is mainly a somewhat elaborated version of the first chapter in a book on legal information systems to be published by Trygve Harvold and myself, summing up some results of the NORIS program. The book will be entitled Legal Decisions and Information Systems, Oslo University Press.
The purpose of presenting this model of the legal decision process is twofold: Firstly, it is an attempt of relating the different elements of a legal decision in a coherent and systematic manner. Secondly, it is an attempt of constructing a frame for discussing legal information systems as part of the decision process.
It is generally accepted that legal research is just part of the legal decision process. A legal information system must therefore by perceived as part of a more comprehensive decision process. In discussing the possibilities of new technology for improving that process, the use of computerized legal research has been given considerable attention. Improvement of an information retrieval system has, howewer, only value to the extent that the decision process as a whole is improved.
This has been stressed by Slayton (1974: 21), who has suggested ´ that electronic legal retrieval systems designed to assist in, or substitute for, a key part of the legal thought process has been developed with little understanding of what the process is, and what the consequences of changing it will beª. Without taking a stand on the justification of Slaytom's criticism, 1 agree that he outlines the only adequate perspectiwe for describing legal information retrieval1.
In this article, I will therefore take as my subject the legal decision process. This will be outlined, and the aspects which have relevance to legal information systems will be discussed in some more detail.
Before moving to the subject proper, I would like to stress the inherent limitations in the description presented in this article. There is, of course, a rather strong reservation in the term ´modelª. It is,not an attempt to describe the psychological process in a lawyer's mind, but rather to distinguish between the different elements of the decision process as they may be sorted out after a decision is made. Actually, the term ´ justification model ª may be' more accurate, as the description' will be more akin to an autopsy of a decision already made than the recording of this decision in the making.
The elements of the model will in real life often be difficult to catch, they may be intuitive leaps of the mind - and it may seem somewhat artificial to have them laid out in a model. Also, the model grossly understates the interaction between the different elements as the problem is solved in the mind of the lawyer, in spite of these awkward points, the model will from representional reasons be presented as a sequentional process with one beginning and one end, though interactive stages will be indicated.
Another major limitation is my own lack of knowledge in comparative law. This model is formulated on the basis of Norwegian law, The legal decision process is, i think, to a high degree independent of the substantive law basic to the decision. But certainly there is a very strong interdependence between the substantive law and the meta-norms governing the decision process. Therefore lawyers with their background in other legal systems than the Norwegian, may find some of my remarks puzzling.
@2. From problem to facts
A legal problem is something which emerges out of the interaction between humans, it is part of the society and exists by itself alone before it is brought to the attention of a lawyer. We are here, of course, onlyPage 261 concerned with legal problems which are solved by a legal decision process, In respect to our model, we will call the person (or persons) experiencing the problem a ´ client ª, while we will call the person' solving the problem a ´ layer ª2.
According to this view, the lawyer is not himself part of the problem, but rather some sort of spectator giving advice to his client. This is typical, but does not always hold true. For instance a legal researcher may himself search out the problems which are the raw material for his studies, or he may be the person experiencing the problems, combining the roles of client and lawyer.
The most common example of a legal problem solver is the judge. The judge may be regarded as the lawyer of our model. His client will then 'be neither of the two contesting parties before the court, but rather the case which these parties jointly represent. Though a common example, the judge is today hardly the typical lawyer. In respect to this article, the lawyer may be typically pictured as a civil servant.
The problem, as experienced by the client, is not primarily classified as ´legal ª or otherwise. The first step of the lawyer is to determine whether the problem - as presented to him through his client - is legal or partially legal. This is not as trivial as it may sound. If a client complains about health, housing, his family and his economy, it is not evident that the best solution is an invalidity pension, housing grants, and a divorce. The legal problems may be part of a more complex problem situation - or, indeed, symptoms of other problems. The client might be better aided by medical care, reschooling and contact with a social adviser than by extensive legal assistance.
As a lawyer, one is nevertheless restricted to extract the legal problems out of the totality. This presupposes that the lawyer can identify a legal problem. This will in most cases be second nature to a lawyer. He is an expert with background knowledge of the legal system - and is consequently able to grasp the legal problems that are part of the totality. As a characteristic, one may say that a legal problem is a problem to whose solution legal argumentation may contribute. This is a pragmatic characteristic, but it will suffice for our purpose.
Looking a bit closer at the nature of a ´ legal problem ª, one may specify three typical examples:
1) There exist valid norms prescribing that a certain type of problems may be solved by legal reasoning. Typical examples are decisions made by the publicPage 262 administration - statutes governing these activities will imply that decisions are results of legal decision processes.
2) The problem is 'a dispute which may be brought to court. The possibility of a trial will throw a shadow across the problem and make a legal decision the normal solution even when settling out of court.
3) The parties (or the environment) accept that a legal decision process is a valid way of settling the problem. This acceptance will depend on several factors, for instance the social prestige of the lawyer or lawyers in general, or the effectiveness of a legal decision process (which is a rather effective way of arriving at a solution).
When the lawyer has settled which are the legal issues of the problem of his client, he sets out to describe the facts of the case. Having no direct knowledge of the case, he has to rely on evidence - primarily discussions with his client, but also with other persons concerned with the problem, examination of documents etc.
Some facts will be evident (like the identity of his client). But here exist a few meta-norms3 prescribing how the. lawyer is to arrive at the probable facts of the case. These meta-norms are most evident in a courtroom, where there may be a considerable body of law of evidence to take into account. In the Norwegian legal system this body of law is rather modest, and does only rarely come into play. But in Anglo-American legal systems they have a more prominent role.
The law of evidence should not, however, distract us from observing that the lawyer mainly bases his assessment of the evidence on general human knowledge. When in doubt, he will choose the set of facts which, as he sees it, most probable is true.
But also normative attitudes of a different order may be introduced at this stage - for instance meta-norms of client loyality. The lawyer may feel inclined to accept the version of the fact presented by his client even though another version may appear more likely to be true. Also, client loytlity may iniuence the lawyer's assessment of what is probtble. - The sort of influence exemplified by client loyality, may also be viewed as a feedback loop from later stages of the decision process, indicating the dynamic aspect of the process which our model does not wholly justify.
In most legal systems there exist mett-norms which introduce special qualifications regarding the probability. A set of facts is not regarded as proven unless it is qualified as more probable than any other sets of
This group of mete-norms is, however, not too well defined. It is for instance proposed in Norwegian legal theory that norms governing the burden of proof may be generated by the special facts of the case itself, for instance built on an assessment of the consequences of alternative decisions. Once again we see that this set of meta-norms may be influenced by feed-back from later stages in the decision process.
Through the meta-norms governing the burden of proof, the lawyer arrives at a set of facts which are proven. These may differ from the probable facts of the case to the extent...