If the
decision or judgment is affirmed, the case does not usually come up
again; the higher court has said the plaintiff has no case on the
evidence, and unless new evidence is produced he can never recover. In
certain accident cases the appellate courts have stated they would not
give their reasons for dismissing the complaint after the evidence is
all in because, they say, if they did so they were afraid the
plaintiff would supply the missing links by manufactured evidence on
the next trial and not quite honestly. This again is a commentary on
procedure.
Just at this point is where the law of the case comes in so
insistently. Before the case comes to court the lawyer is supposed to
know whether his client has a right of action. Every state of facts or
a breach of those rights does not give rise to an action that can be
maintained in a court of law. If you ask a man to dinner and he
accepts, but does not come, you can not recover your damages for
providing the dinner; or if you fall down your own well, you can not
sue the man who built it. The lawyer is supposed to have carefully
considered what elements of fact make an action. If the facts
themselves do not give him a right of recovery his case is dismissed;
or if he has a cause of action but has not proven the facts, it is
also dismissed.
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