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Where a record cannot be obtained, receiving bodies accept substitute evidence, but only where the unavailability has been established rather than asserted. That means a documented approach to the correct office, a written response or evidence of the absence of one, and where available a published statement that records of that kind and period do not exist.
Where a device is gone, provider-held account data is unaffected, backups may capture an earlier state, and the other participants in any conversation hold their own copies. The circumstances of the loss then matter separately: an ordinary loss is neutral, while a wipe performed after a duty to preserve arose is treated as spoliation.
A witness attests that a named person signed in their presence and appeared able to do so. Wills, deeds and health care directives commonly require witnesses; ordinary contracts generally do not. Who may act is restricted, most often by excluding anybody who benefits under the instrument, and a disqualified witness can void a gift or the instrument itself.
Opinion evidence falls into two categories. Lay opinion is admissible where it is rationally based on the witness's own perception and helps the decision-maker, which covers ordinary judgments about speed, condition and identity. Expert opinion requires specialized knowledge, a reliable basis and a qualified witness, and is admitted only where it would actually assist.
Expert evidence is subject to a gatekeeping decision before it is heard. The questions are whether the subject genuinely admits of expertise, whether the witness possesses it, whether the method is reliable and whether the opinion assists rather than usurping the decision-maker. Challenges have to be brought early to be decided properly.
Where a determination is made without material that later arrives, several routes may be available: review, reopening, reconsideration or a fresh application. Which one applies turns on whether the material is genuinely new, whether reasonable diligence would have produced it earlier, and whether it would have changed the outcome. Time limits are usually short.
Refusals fall into four groups: the request cannot be understood, the holder doubts the requester's authority, the material is claimed to be exempt or protected, and the holder says nothing exists. Each has a different answer, and identifying which one is being made is the first and most important step in responding to it.
Where primary evidence cannot be obtained, the obligation to establish the fact remains. The route through begins with proving that the material is genuinely unavailable, and continues with secondary documents, circumstantial support and statements from people with knowledge. Files fail when they skip the first step and simply offer substitutes without explaining why.
The burden of proof allocates the risk of an unproved fact. Whoever carries it loses on that issue if the evidence does not get there, which makes the allocation decisive in close cases and almost invisible in clear ones. Different issues within a single proceeding may be carried by different parties and judged to different standards, so the useful question is never who has the burden but who has it on this particular point.
A witness may be qualified by knowledge, skill, experience, training or education, and any one of them suffices. The enquiry is whether this person knows something useful about this question, not whether they hold a particular qualification. A separate and prior question is whether the claimed field is one in which expertise genuinely exists.
