Kaplow, Louis, Harvard Law Review
B. Nature of Facts
Facts are central to legal decisions not only in final adjudication but also, at least under current doctrine in U.S. civil litigation, at preliminary stages. Both Twombly and Iqbal focus intensively on the adequacy of the facts alleged in complaints, (195) and the standard for summary judgment under Rule 56 concerns the existence of a "genuine dispute as to any material fact." (196) Yet cases and commentary are insufficiently precise, sometimes inconsistent, and occasionally confused about the nature of facts, which inhibits analysis, understanding, and the ability to articulate rules and methods for decisionmaking. Accordingly, this section explicates some basic questions and distinctions, including the relationship between facts and evidence and the inputs that might provide the requisite information or ground the necessary beliefs that are at the core of existing tests. These matters are especially important for decisions on motions to dismiss due to the juxtaposition of, on one hand, the centrality of facts and the aforementioned relevance of probabilities under the plausibility test and, on the other hand, the conventional supposition that evidence need not be presented and should not be evaluated at this preliminary stage.
The distinction between a fact (something true about the world) and evidence (something that furnishes proof of a fact) is familiar. An allegation that the light was red is an assertion of fact, whereas reference to bystander Jones, who purports to have seen that the light was red, is an identification of evidence of that fact. Whether Smith was motivated by racial animus in taking an action is a question of fact; an email in which Smith uses a racial epithet in discussing the action is evidence of that fact. Also, there often exist intermediate facts, such as Smith having acted differently when dealing with situations that were comparable except for differences in race (itself something to be established by evidence), that might be a basis for inferring the ultimate fact. In light of this distinction, insistence on a statement of facts (notably, regarding allegations in a complaint) does not in itself constitute a demand for evidence. (197)
This conclusion, however, is substantially misleading -- that is, as long as allegations based on pure fantasy are impermissible. Proffering a fact entails holding some basis for acceptance of the fact as true, which in turn requires possessing some evidence. For example, Rule 11(b) refers generally to "knowledge, information, and belief," (198) and subsection (3) explicitly requires that "factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery." (199) Knowledge presupposes some evidentiary basis, information is tantamount to evidence, and belief in the truth of a fact presupposes evidence. (200) As a consequence, although insistence on particular facts is not per se a demand for evidence, for all practical purposes it requires evidence. Perhaps the evidence need not be stated, at all or in detail, but it is presumed to exist in some quantum. (If someone told you "the light was red" and, when pressed for the basis for the assertion, stated that there was none whatsoever, you would deem the speaker to be either playful or a liar, depending on the context.)
Moreover, it seems clear that Twombly and Iqbal demand more than this minimum to survive a motion to dismiss. Specifically, it is not sufficient to plead the ultimate fact (often a legal element in a claim), such as discriminatory intent as in Iqbal. (201) Pleadings must also contain some basis for believing the ultimate fact rather than accepting innocent explanations for the behavior in question. And this basis should be understood as involving evidence. As already suggested, one type of evidence for an ultimate fact is another fact or set of facts from which one may infer the ultimate fact. …