On Reconsideration. Is an Adversarial Legal System Well Suited for Delivering Justice?

• Author: Kenneth R. Berman
• Pages: 55-57

On Reconsideration

Published in Litigation, Volume 47, Number 1, Fall 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 55

KENNETH R. BERMAN

Kenneth R. Berman is a partner at Nutter McClennen & Fish LLP in Boston and the author of Reinventing

Witness Preparation: Unlocking the Secrets to Testimonial Success (ABA 2018).

IS AN ADVERSARIAL

LEGAL SYSTEM WELL

SUITED FOR DELIVERING

JUSTICE?

“On Reconsideration.” That’s the banner of

this new column. Here, we’ll test our as-

sumptions about how justice is dispensed,

how truth is proven, how we litigators are

supposed to do our jobs. We’ll look at the

behavior of participants in the justice

system—judges, jurors, lawyers, parties,

witnesses—and how different behaviors

influence results. We’ll also spotlight liti-

gation challenges and opportunities that

lurk in the shadows, ones that can make

big differences in outcomes if we were

only aware of them.

This column is meant to rethink what

we do and why we do it. Why don’t we do

it differently? Should we change it up? It’s

meant to offer a fresh perspective, question

the status quo, and make us ask: Is this right?

Does this need fixing? Is there a better way?

So let’s begin. As this is the first col-

umn, we’ll start at the macro level: Is an

adversarial legal system well suited for

delivering justice?

Our system is grounded on the idea that

justice is most effectively delivered when

dueling advocates present competing

narratives, each of which is then put

through intensive questioning and critiqu-

ing by the opposing lawyer, who fires ver-

bal cannonballs at everything attackable.

That process—so the thinking goes—

tests the evidence, exposes falsehoods and

mistaken memories, and reveals which

party has more of the truth on its side.

But our system has flaws that some-

times allow a party to lose when it ought

to win. Regrettably, the system that deliv-

ers true justice also on occasion miscarries.

The consequences can be devastating.

Innocent people go to jail or face death

sentences. Victims deserving of compen-

sation get nothing. Defendants who did

nothing wrong are forced to pay huge

sums or go into bankruptcy.

When the legal system delivers the

wrong result, money, property, liberty,

and life can be lost and society will suffer.

Why Justice Goes Awry

If a morbidity and mortality analysis were

done on each miscarriage of justice, we

could probably chalk up the results to

any number of imperfections—dispro-

portionate access to evidence, disparate

advocacy skills, a misunderstood ques-

tion, a mis-phrased answer, a key docu-

ment that somehow disappeared and nev-

er became part of the evidence, a witness

whose distorted memory was persuasively

communicated and unjustifiably believed,

an ambiguous email that created a false

impression, a litigation budget that sank

under the weight of crippling discovery,

an arbitrary evidentiary ruling, a confus-

ing jury instruction, an unfortunate gap

between what someone said and what that

person meant, an adjudicator whose hid-

den biases led to an erroneous credibility

assessment or a mistaken legal ruling. The

list goes on and on.

In an adversarial system, the search

for truth is a battle of narratives. The

side with the more sympathetic, more

plausible story usually wins, even if the

truth belongs elsewhere. Generally, our

adversary system favors the better story,

not necessarily the truer one. Emotion

prevailing over logic.

Fact finders believe the story they want

to believe, the one that’s easier to imagine.

That becomes their truth. If they don’t feel

good about some other story, they won’t

believe it, even if it’s the actual truth.

One hallmark of our system is the in-

terplay between passive actors and active

ones. Adjudicators are passive; lawyers

and witnesses are active. For the most

part, adjudicators are spectators, watch-

ing the lawyers and witnesses make their

presentations until it’s time to reflect on

what was presented, decide the case, and

announce the winner.

The final decision might or might not

be the same as what a faithful applica-

tion of the law and a fair assessment of

the merits would produce when applied

to the real facts. It will only be what the

adjudicator thinks is the right outcome

based on however the adjudicator inter-

prets the evidence that the litigants were

able to present, interpretations influenced