(left Column/point) the System Works (in Practice and in Theory)
| Publication year | 2011 |
| Pages | 95 |
| Citation | Vol. 40 No. 11 Pg. 95 |
2011, November, Pg. 95. (Left Column/Point) The System Works (in Practice and in Theory)
November 2011
Vol. 40, No. 11 [Page 95]
Point/Counterpoint: The Civil Adversarial System
Point/Counterpoint articles provide an open forum for the expression of ideas and address issues that are substantially related to the law, to the practice of law, or to lawyers (not matters of general interest). Any CBA member wishing to submit a Point/Counterpoint article should work with another CBA member to provide a companion article that argues for a significantly different conclusion. For further information and writing guidelines, to discuss topics in advance, or to get help finding someone to write an opposing viewpoint, contact Point/Counterpoint Coordinating Editor Fred Burtzos at fred.burtzos.gdz0@statefarm.com.
About the Author
Mark T. Bailey practices civil litigation with the Consumer Protection Section of the Colorado Attorney General's Office. Previously, he was an Associate at Reilly Pozner LLP and a clerk for Colorado Supreme Court Justice Nancy E. Rice-baileymt@gmail.com.
What do we want out of our system of resolving civil disputes? We want a forum in which trustworthy, neutral decision makers have the best tools at their disposal (1) to ascertain the facts underlying the dispute, and (2) to apply the correct rules of law to those facts.
On a purely theoretical level, the adversarial system seems to provide such a forum. First, it assures a neutral decision maker. Our system has its roots in the right to a jury trial, which was added to the federal and state constitutions in part because of the belief that the litigants' peers would be better at adjudicating their disputes than would judges, who were perceived to be beholden to political actors in the government.(fn1) Thus, the right to trial by jury is an expression of democratic values; it is the citizen jury, not the government, that resolves our legal disputes.(fn2)
The adversarial system permits the decision maker to hear each side's best case, which makes a fair and just verdict more likely. Each party reviews documents, interviews witnesses, conducts depositions, and makes strategic decisions about how to characterize-or, to put it bluntly, how to spin-the facts. The jury then observes as each side puts on its best case, from opening statement, to the presentation of witnesses and exhibits, to cross-examination, to closing argument. Through this process, the jury uses its experience and common sense to identify false assertions, faulty memories, and flimsy "spin" to ascertain...
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