The trial court is an escape valve for the excessive heat generated by conflicts within the society. Its role is to resolve disputes pursuant to procedures calculated to permit a full and fair hearing to the litigants. It is widely known among members of the bar that a lawsuit is not a scientific investigation for the discovery of truth. Rather, it is a mechanism by which society seeks to resolve the disputes which arise between or among its members and/or institutions. The litigants frame the issues and determine the matters to be studied. They marshall their own evidence and present only those facts which are of immediate moment and persuasive significance in the context of their case. Ordinarily, no search for broader truths is either attempted or permitted in this forum.
Although truth may be beyond the litigator's grasp, reasonably just settlements of disputes are not. At trial, such resolutions are left to the trier of fact. They depend upon the facts presented and the clarity and persuasiveness of the presentation. It is here that the process frequently comes apart, for the traditional modes of presentation of facts in our trial courts are inappropriate in many modern disputes.
The proposal which follows calls for the utilization of written narrative direct testimony in appropriate jury cases. These would include cases involving a substantial degree of sophisticated, technical evidence. Resistance to the introduction of written evidence is largely based upon traditional adversary concepts of jury trials and the hypertechnical forms of objections which have evolved to "protect" the jury within this framework. The aim of this proposal is to place factual exposition at the forefront of trial considerations while protecting the jury both from "tainted" evidence and from ourselves.
Ordover, Abraham P.
"The Use of Written Direct Testimony in Jury Trials: A Proposal,"
Hofstra Law Review: Vol. 2
, Article 2.
Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol2/iss1/2