Adversary System

Author:Jeffrey Lehman, Shirelle Phelps

Page 136


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...

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