Elements are generally regarded as basic principles or fundamental parts of something. Abstractly we might think of the letters of the alphabet as the elements of a word. Words then become the ‘parts of speech’ used to compose a sentence. Groupings of sentences are used to create paragraphs and then chapters and then books and then volumes and then libraries. I think you get the point.

More concretely, think of a periodic table from your chemistry class. The periodic table identified elements. In turn, these elements are used to make up compounds.

Interestingly, while law uses the complexity of the former – i.e. there are volumes and libraries dedicated to the law – at bedrock any legal claim must satisfy a particular set of legal elements. So …

Think of legal elements as a checklist.

A claimant must check off every fundamental part – i.e. element – of a legal claim in order for the claimant to carry the burden of proof. When this happens, the claimant has demonstrated the other party has failed to fulfill the duty of restraining from doing that which is claimed against them.

This also means that if the party resisting a claim can nullify – i.e. demonstrate the absence – of any element, then that party has successfully defended against the claim because the claimant hasn’t satisfied the burden of proving that failure of legal restraint.

To digress further to regard tactical matters for those resisting claims (generally known as “defendants”), note except for the extraordinarily odd cases in which concentration on nullifying one or two specific elements would diffuse the fact-finders understanding of the facts, all the elements of any claim made against a defendant should be challenged.

Why? Again, because it just takes “knock down” of one element to destroy the claim altogether.

Now on the other side for the claimant, is this idea of seeking to “cover the waterfront” a wise strategy? The answer generally is that it is not.

There may be several differing claims, but at least in boundary disputes, it is generally best to make sure that each claim is distinct and supported by its own facts.

In this way, the facts can be focused to make sure that they are presented most persuasively. Why?

When one is making a claim, one is seeking to persuade that the facts – which we must remember can be undermined – should be recognized in such a way as to demonstrate that each element of the claim are made.

True, the advantage of making inconsistent pleadings is that if certain facts don’t hold up, there might be another way to interpret the facts to allow a similar legal endpoint.

But, if the facts are wishy-washy, perhaps the case is too. In that situation, do you really want your claim to be passed up to the judge to then ask essentially: “Though we don’t know what is going on here, will you figure it out … to our advantage.”

That’s just not real world. And yet, often we see alternative pleadings. Why?