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The U.S. Legal System The Adversary System System in which individual parties play the leading role in discovering and presenting evidence at trials, what has come to be known as the adversary system has predominated in the United States but criticisms of the way it works have been mounting In contrast to many European systems, the American legal system has often been described as adversarial rather than inquisitorial in nature. In inquisitorial systems, judges play an active role in investigating the truth of matters and in rendering decisions accordingly. In adversarial, or adversary, systems, however, judges play a role more like a referee at a sporting event in which the parties are the athletes. Adversary Versus Inquisitorial Systems An adversary system implicitly trusts that parties with opposing interests are motivated to discover and present all of the facts relevant to the dispute. Indeed, it is generally in the parties' best interest to do so. A system of adversarial justice therefore places chief responsibility on the parties to gather the facts supporting their respective cases and to present these facts at trial. In most cases, parties interview witnesses in advance, in search of those favorable to their causes. Although judges--and in some jurisdictions, even jurors--may question witnesses, parties choose which witnesses testify; they also conduct the main questioning of these witnesses. If a case requires expert testimony, the parties pay for, prepare, and call as witnesses experts who support their positions. In cases involving juries, judges in the adversary system mainly ensure that the fight between two parties remains fair. The jury decides a verdict based on the evidence presented by the competing parties. In cases without juries, judges add to their refereeing duties the work of pronouncing winners and losers. It is expected that they will do so impartially, after the parties have presented to them all relevant evidence. In contrast with an adversary system, an inquisitorial system places on judges the chief role in discovering and developing evidence in a case. Parties to a matter may disclose to a court relevant evidence, such as documents and witnesses with knowledge of pertinent facts. Judges, however, call and question witnesses. Parties are allowed to question the witnesses at trial, along with the questioning conducted by the judge, but are generally not allowed to interview witnesses in advance of their appearance at a trial. Instead of receiving testimony from expert witnesses paid by the parties, inquisitorial systems tend to rely upon experts chosen by the court, often from nationally recognized panels of specialists in particular areas. Modifications of the Adversary System Although the American system of justice remains adversarial in important respects, it has increasingly adopted practices more consistent with inquisitorial systems. In part, this transformation stems from recurring criticisms of the adversary system: for example, that zealous advocates conceal or distort the truth to advance the causes of their own clients. Modern discovery rules, which require parties in both civil and criminal cases to provide each other with information about cases in advance of trial, have attempted to abolish "trial by surprise" or "trial by ambush." Additionally, current legal ethics rules prevent attorneys from permitting their clients and witnesses to lie in court. "Rambo litigation tactics," the modern nickname for unfair litigation practices by lawyers bent on winning at all costs, face increasing scrutiny. Lawyers who engage in such practices are increasingly likely to be punished by courts. Furthermore, judges in some matters, especially family law matters and those involving especially complex issues, increasingly take active roles in managing the preparation of cases for trial and in encouraging parties to settle their disputes. These changes have not, however, subdued other criticisms of the adversary system. In particular, critics maintain that the system's reliance on professional advocates (lawyers) who vary in ability and motivation threatens the quest for truth and the likelihood that cases will yield just results. Since most of the preparation and presentation of cases lies within the hands of advocates, these critics maintain, inequality in their abilities or motivations will inevitably distort the capacity of courts to discover the truth. Similarly, parties with differing economic assets may have differing abilities to investigate their claims and support them by proof. These criticisms have continued to produce suggestions that the American legal system be redirected toward procedures relying less on the skill of advocates or the wealth of parties, and more on courts committed to an active role in discovering the truth. Adversarial Ethics A corollary of the adversary system is its reliance upon lawyers who play the role of advocates for the interests of their clients. Questions arise about what ethical rules should bind these advocates. For example, should they be given leave to pursue any ends necessary to help their clients to prevail without being held responsible for those ends, or should they be held morally accountable for the objectives of their clients and be severely constrained in the means by which they pursue these objectives? The American legal profession, basically committed to the adversary system of justice, has nevertheless attempted to moderate adversarial zeal in some respects. For example, modern principles of legal ethics stipulate that a lawyer's representation of a client does not necessarily mean the lawyer endorses the client's aims. Nevertheless, the same principles prohibit lawyers from helping clients pursue fraudulent or illegal objectives. Rules of legal ethics also require lawyers to maintain their clients' secrets in many cases, even when such secrets involve matters the lawyers themselves might find morally objectionable. However, these rules provide exceptions to the normal principles of confidentiality when sufficiently important interests are at stake. For example, in most jurisdictions lawyers cannot remain silent when they know their clients or witnesses have committed perjury in court. Furthermore, in most jurisdictions lawyers who know their clients are poised to commit crimes that may seriously injure or kill other persons are permitted to disclose this information when it is necessary to prevent the crimes. Additionally, courts have increasingly placed limits on excessive zealousness in the pursuit of a client's cause. Modern procedural and ethical rules prohibit litigation tactics designed simply to harass opponents or delay proceedings. Such rules attempt to tame at least some of the adversary character of the adversary system. Timothy L. Hall Suggested ReadingsGeneral treatments of American law containing discussions of the adversary system include Lawrence M. Friedman's American Law: An Introduction (rev. ed. New York: W. W. Norton, 1998), Robert A. Kagan's Adversarial Legalism: The American Way of Law (Cambridge, Mass.: Harvard University Press, 2001), and Jay M. Feinman's Law 101: Everything You Need to Know About the American Legal System (New York: Oxford University Press, 2000). The adversary system is defended in Stephan Landsman's The Adversary System: A Description and Defense (Washington, D.C.: American Enterprise Institute, 1984) and is criticized in Marvin E. Frankel's Partisan Justice (New York: Hill and Wang, 1980). A more balanced approach is Jay Tidmarsh's Complex Litigation and the Adversary System (New York: Foundation Press, 1998). The late twentieth century saw many thoughtful inquiries concerning the role of lawyers as advocates of their clients' causes. The most vigorous champion of an aggressively partisan role for lawyers has probably been Monroe Freedom, who stated his position forcefully in Lawyers' Ethics in an Adversary System (Indianapolis: Bobbs-Merrill, 1975). Charles Fried made a similar case in "The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation," in Yale Law Journal 85 (1976). For an investigation of whether lawyers practicing within the adversary system can be morally praiseworthy, see the essays in The Good Lawyer: Lawyers' Roles and Lawyers' Ethics, edited by David Luban (Totowa, N.J.: Rowman & Allanheld, 1983). See Also: Attorney confidentiality; Cross-examination; Discovery; Effective counsel; Evidence, rules of; Judges; Juries; Lawsuits; Officers of the court; Perjury; Public interest law; Trials; Verdicts; Witnesses. |
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