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Adversary System

The Adversary System: Who Wins? Who Loses?

The legal system in the United States is known as an adversary system. In this system, the parties to a controversy develop and present their arguments, gather and submit evidence, call and question witnesses, and, within the confines of certain rules, control the process. The fact finder, usually a judge or jury, remains neutral and passive throughout the proceeding.

Critics pose some disturbing questions about the adversary system: Is justice served by a process that is more concerned with resolving controversies than with finding the ultimate truth? Is it possible for people with limited resources to enjoy the same access to legal services as do wealthy people? Does a system that puts a premium on winning encourage chicanery, manipulation, and deception?

The 1995 trial of O. J. SIMPSON, an actor, sportscaster, and professional football player accused of murdering his former wife and her friend, cast unprecedented scrutiny on the criminal justice system, and left many people wondering whether truth or justice play any role in its operation. Each day for over a year, the trial was televised in the homes of millions of people, most of whom had never seen the inside of a courtroom. They were fascinated and repelled by prosecutors and defense attorneys who argued relentlessly about seemingly trivial points. Even more disturbing to some viewers was the acrimonious name-calling that went on between the two sides as each attempted to discredit the other's evidence and witnesses. Likewise, the 1994 trials of Eric and Lyle Menendez, wealthy brothers who admitted killing their parents but whose first trials ended in hung juries, left many Americans bewildered and angry at a system that seemed unable to convict confessed murderers. Defense attorneys are quick to point out that the Constitution guarantees that the accused is innocent unless found guilty in a court of law, and it is impossible to protect the innocent without occasionally protecting the guilty. Lawyers are obligated to challenge the evidence against their clients, even if that means impugning the police or attacking a victim's or witness's character. It is their job to win an acquittal by whatever legal and ethical means within their power.

Disparaging the legal system has become something of a national pastime. Indeed, criticism of the system comes from all corners of the landscape, including the top of the system itself. The late Chief Justice WARREN E. BURGER was outspoken in his lambasting of the system and of lawyers, asserting that they are too numerous and too zealous, that they file too many frivolous lawsuits and motions, and that there is general failure within the system to encourage out-of-court settlements. Burger was a vocal proponent of ALTERNATIVE DISPUTE RESOLUTION (ADR). He advocated the use of nonlitigious solutions such as mediation or ARBITRATION as a means of reducing court congestion. Supporters of the adversary system point out that it is not clear that the savings reaped from ADR always outweigh the costs. In situations where the parties are not at equal bargaining strength, questions arise as to whether settlements are extracted through duress. Some attorneys and litigants have noted that ADR is often as adversarial in nature as litigation, with evidence presented and slanted by counsel. They further complain that there is no guarantee that an arbitrator will be informed about the subject matter of the dispute, and therefore no guarantee of a fair outcome.

Without doubt, during the 1980s and 1990s, the United States experienced tremendous growth in the number of civil suits filed. The results were clogged courts, trial delays, and increased legal costs. However, the experts disagree on how to solve these problems. Critics of the system clamor for reforms to address what they perceive as its deficiencies, whereas many commentators, particularly those within the legal profession, feel that the system, although imperfect, is actually working the way it is designed to work and should not be altered.

One criticism of the adversary system is that it is slow and cumbersome. The judge, acting as a neutral fact finder, can do little to accelerate a trial, and procedural and evidentiary rules further slow the process. Likewise, the wide availability of appellate review means that a final determination can take years. However, at least one study has shown that in courts where adversarial trials were discouraged and settlements actively encouraged, litigants still encountered substantial delays in resolution. And supporters of the adversary system maintain that a methodical, albeit cumbersome, system is necessary for protection of individual rights.

It is fair to challenge the ethics of a legal system that places a higher value on winning than on truth seeking. At least one commentator has characterized the system as one in which lawyers spend more time avoiding truth than seeking it. But proponents argue that the vigorous clash of opposing viewpoints eventually yields the truth, and that allowing the sides to fight it out under specific rules that guarantee fair play allows the truth to surface on its own.

Many other complaints have been leveled against the United States' adversary system. Some feel that because the parties control the litigation, they are encouraged to present only the evidence that is favorable to them and to suppress evidence that is unfavorable. Criticism of attorneys abounds. Some feel that the lawyers' ethics code encourages zealous representation at the expense of truth, making attorneys, in the words of Burger, "hired guns" (In re Griffiths, 413 U.S. 717, 93 S. Ct. 2851, 37 L. Ed. 2d 910 [1973]). Others complain that lawyers file too many frivolous lawsuits and have become too dominant in the adversary process. Some even say that the RULES OF EVIDENCE, designed to guarantee fairness to all parties, actually work against fairness by preventing important information from being presented to the fact finder.

Defenders of the adversary system are quick to refute each criticism lobbed at it. They contend that it is necessary for the parties to control the litigation in order to preserve the neutrality of the judge and jury. They point out that lawyers, although as susceptible to corruption as any other group, are governed by a code of ethical conduct that, when enforced, deals effectively with instances of overreaching. And, while conceding that evidentiary rules may be subject to manipulation, they vigorously maintain that such rules are the only means by which to ensure fairness and prevent judicial abuse.

The criticism of the U.S. legal system that may be most difficult to refute has to do with accessibility. It cannot be plausibly argued that an average criminal defendant has the same access to LEGAL REPRESENTATION as O. J. Simpson or the wealthy Menendez brothers, nor can it be argued that an injured plaintiff in a civil suit is in an equal bargaining position with a huge corporation. Yet, supporters of the adversary system counter that unequal access to legal services is the result of economic and social conditions, not the structure of the legal system, and that changing the way legal services are delivered would do nothing to address the root causes of the disparity. They also point out that the much criticized contingency fee arrangement, by which an attorney is paid a percentage of the award her or his client receives, opens the courts to members of the population who could not otherwise afford legal representation.

Most legal experts agree that, in the long run, the adversary system results in societal benefits that outweigh its inherent shortcomings. By allowing all sides of a controversy to be heard, the system protects against abuse of power, and forces those with the most at stake to focus on the issues in dispute. At its worst, it can be manipulated to the benefit of those least deserving, but at its best, it offers every injured party a forum for relief, sometimes against powerful odds. No doubt, the arguments about whether and how to change the system will go on into the twenty-first century. As a system that has evolved over three hundred years, it probably will undergo some changes. But the basic values at its heart, such as PRESUMPTION OF INNOCENCE, the right to trial by jury, and protection of individual rights, appear to be firmly cemented as the cornerstones of U.S. JURISPRUDENCE.

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