Dealing with Evidentiary Deficiency

Lack of information distorts litigation. Claims or defenses that a party might prove easily, or that might even be undisputed, in a world of perfect information can be difficult or impossible to prove in the real world of imperfect information. Some information deficiencies are inevitable, at least in the sense that we could not eliminate them without incurring undue social costs. In some cases, however, a person's conduct may have caused the deficiency.

More generally, the person may have had available a reasonable alternative course of conduct that would have eliminated, or at least mitigated, the deficiency.