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… of whatever flavor…

Reader David came across the reference in an 1877 court case he was trying to figure out.

And it made no sense to him whatsoever.

“The court,” he wrote, “appears to be drawing a distinction between facts and facts. And I don’t get it.”

Yep. The court was doing just that. And even those trained law more recently — like The Legal Genealogist1 — likely wouldn’t get it either.

The reference David was struggling with was to ultimate facts.2

And that’s pretty much a concept that’s gone by the wayside in the law.

But because it was something courts did talk about starting in the mid-1800s and on into the 1930s — meaning genealogists working with court cases from that time period may need to figure it out — let’s see if we can shed a little light on this.

First, the legal dictionary definition: “In pleading and practice. Facts in issue; opposed to probative or evidential facts, the latter being such as serve to establish or disprove the issues.”3

ultimate facts

Oh yeah right.

That’s a lot of help.

Let’s see if the history of this makes it any clearer:

“The concept of ultimate facts used to be an essential part of preparing a Pleading … These ultimate facts alleged the substance of the cause of action and were distinguished from evidentiary facts, which concerned the particular events of the case, and conclusions of law. The highly technical distinctions among ultimate facts, evidentiary facts, and conclusions of law created great confusion and often led to the dismissal of cases based on a pleading mistake.

… Judges and attorneys found it difficult, if not impossible, to draw meaningful and consistent distinctions among these three terms … (there was) no clear dividing line between a fact that demonstrated a cause of action and one that introduced specific evidence…”4

That’s a little better, but still not really understandable, especially when you add in the conclusions of law bit.5

So let’s try another definition, applying the notion to a specific fact pattern: “A fact that must be accepted for a claim or defense to prevail. For instance, a jury must accept the ultimate fact that X caused Y’s death to convict X of a homicide offense. An ultimate fact is usually inferred from a number of supporting evidentiary facts.”6

Ahhh… that’s better, isn’t it?

The ultimate fact that has to be proved is that X caused Y’s death. It’s the bottom-line issue in the whole case. If the specific acts taken by X didn’t ultimately cause Y’s death, then X isn’t legally responsible.

The evidentiary facts might be that X pointed the gun at Y — and pulled the trigger. That makes the ultimate fact pretty easy.

But maybe the evidentiary facts show that X pushed Y, causing Y to bump into Z. Z got angry and punched Y. That caused Y to stumble into the street where Y was hit by a car driven by A. Now the ultimate fact is a whole lot harder, isn’t it?

So yes, there was a distinction in the law between facts and ultimate facts.

Ultimate facts had to be specifically stated — set out — — claimed — alleged in the pleadings, the papers filed in the case. And then supported at trial by evidentiary facts so that a jury could determine if the ultimate facts had been proved.

Yeah, I know.

I know.

There’s a reason why we don’t try to draw these distinctions any more. There’s that whole “judges and attorneys found it difficult, if not impossible, to draw meaningful and consistent distinctions among these … terms” bit…

But if you come across a case that talks about ultimate facts, you now know what the court means.

Assuming, of course, that the court itself did…

Cite/link to this post: Judy G. Russell, “Just the facts,” The Legal Genealogist ( : posted 25 Jan 2022).


  1. No matter what my nieces and nephews claim, I was not going to law school in the Middle Ages…
  2. See Smith v. Acker, 52 Cal. 217 (1877).
  3. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1197, “ultimate facts.”
  4. The Free Dictionary ( : accessed 25 Jan 2022), “Ultimate facts,” citing West’s Encyclopedia of American Law, 2d ed. (Detroit: Thomson Gale, 2008).
  5. “Conclusion of law refers to a decision made by a judge regarding a question of law. … A conclusion of law is to be contrasted with a conclusion of fact which can be made by a judge or jury. Sometimes the distinctions between a question of law and fact are not clear because an issue may involve elements or questions of both.” Wex, Legal Information Institute, Cornell Law School ( : accessed 25 Jan 2022), “Conclusion of law.”
  6. Ibid., “Ultimate fact.”
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