Determine whether the parties' disputes center on facts or on legal evaluation. Clarify the content of the dispute—i.e., where the parties' claims differ. Distinguish between: differences of fact and differences of legal evaluation.
Factual disputed issues, often also called general disputed issues, are mainly facts about which the parties dispute the formation, modification, or extinction of a legal relationship. For example, in a private lending case, whether the borrower actually received the funds; in a creditor's subrogation dispute, whether the debtor neglected to exercise its own rights in a way that impaired the creditor's claim, and so on.
The most common legal disputed issues concern the correct interpretation and application of law. Their formulation is more specialized and often intertwined with facts, making boundary-drawing and characterization objectively difficult. When factual disputed issues encounter problems of legal application or evidence rules, they can easily convert into legal disputed issues, including allocation of the burden of proof, evidentiary validity and probative force, interpretation of legal provisions, and correct application of law.
Accurately grasping the core elements of what the parties are contesting, and appropriately summarizing the disputed issues, not only directly affects the outcome of the case but also has a directional effect on protecting the parties' substantive rights. For example, whether the parties constitute repetitive litigation involves both factual disputes over whether the parties, claims, and subject matter are the same, and legal disputes over how the parties understand each element differently, and directly determines the adjudicative direction of the parties' substantive rights.
