8 Trial Judges J. 1 (1969)

handle is hein.journals/judgej8 and id is 1 raw text is: JANUARY 1969                                  Vol. 8, No. 1
St                                 t  Tral  Judges-  @

FINDINGS OF FACTS AND
CONCLUSIONS OF LAW
By JUDGE MILTON B. CoNFORD
Appellate Division, Superior Court of Neu, Jersey
The heart of the decisional function of a judge hearing a
contested matter without a jury is his formulation of
findings of fact and conclusions of law. The understanding
by the parties and appellate courts of a trial court
determination is dependent dpon the clarity and thorough-
ness with which such findings and conclusions are made.
Deficiencies in findings and
conclusions motivate appeals, since'
parties are in such instances not
adequately apprised as to why they
have lost. And many appeals even-
tuate in remands to the trial courts
for more adequate findings. Appel-
late courts are generally loath to
substitute their own factual deter-
minations for those of trial judges
who have heard the witnesses and
they will therefore withhold final
determination until they can verify  Judge M, B. Contord
the precise findings of fact of the trial judge and thereby
become enabled to make appropriate application of the
pertinent law to such adjudicated facts and avoid explora-
tion of immaterial questions.
Sound techniques in the making of findings of fact and
conclusions of law will be promoted by a review of certain
fundamentals.
1. The essence of findings and conclusions in a con-
tested matter is an explanation of the judge's reasons for
arriving at the determination.
2. Since the determination of a case consists of an
application of the controlling principles of law to the
material facts, the judge must, specially find the facts from
the proofs and state them, but he must also ascertain the
controlling principles of law and render his conclusions as
to them.
3. If the foregoing is properly done it will be readily
possible for the losing party to pinpoint any allegation of
error in the determination and enable the appellate court
either to render its full and final adjudication in relation to
any error asserted or to affirm the judgment entered on the
determination.
By and large, adherence to the following precepts will
be found helpful.
1. The material facts are either admitted or disputed.
Findings should include facts in both categories.
2. Unless the findings are rendered in the form of a
memorandum or opinion it is unnecessary and undesirable
to refer to or discuss the testimony or evidence in the
findings of fact. A  common deficiency in trial court
findings of fact is the substitution of recitals of testimony,
frequently extended, for simple findings by the judge as to
the facts.

3. Findings of fact may include findings as to basic
(evidentiary) facts and as to conclusionary facts. E.g., The
defendant drove through a red light and The plaintiff
drove at 60 miles per hour are basic facts. The defendant
was negligent and John Doe was the agent of Richard
Roe are conclusionary facts. The soundness of findings as
to conclusionary facts ordinarily depends upon their
foundation in basic facts. E.g., in, The defendant drove
through a red light. He failed to make observation for
traffic entering the intersection from his right. Defendant
was negligent,  the conclusionary finding Tests upon the
findings as to the basic facts.
(continued on page 4)
Some Aspects of the
Thai Criminal Procedure
By JUSTICE CIITTI TINGSABADH
Supreme Court of Thailand, Bangkok
Although Thailand has its laws mainly codified as those
of civil law countries, it adopts the adversary trial system of
the common law which is the practice of the Anglo-
American   courts. Plaintiffs and
defendants stand, generally speak-
ing, on the same footing before the
courts. They conduct their own
examination and cross-examination
of witnesses, with presiding judges
as referees to see that the rules of
the game are strictly observed by
both sides. Judges will intervene in
the conduct of cases only when
they find it necessary in the interest
of justice.
Justice Tingsabadh   The law governing police power
and court procedure is to be found in the Criminal
Procedure Code (1934), with some later amendments. The
main difference from the Anglo-American method is that
there has never been a jury system in Thai courts. Judges
decide both questions of fact and law. Except for small
cases in which a single judge sits in the trial court, two
judges at least are required to sit together on cases at the
hearing of evidence. Because trained judges decide ques-
tions of fact, the rules on the admissibility of-evidence are
not as strict and narrow as those of the Anglo-American
laws, wherejules of laymen give their'verdicts on'facts of
the cases. The Criminal Procedure Code, Section 226,
broadly provides that any material, documentary or oral
evidence which may prove the guilt or innocence of the
accused is admissible, so far as the evidence has not been
obtained by inducement, promise, threat, deception or any
other wrongful means.
kcontinuea on page 4)
CONTENTS, page 2

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