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Journal of the Institute for the Study of Legal Ethics

Publication Date

10-1-1996

Introduction

In this presentation I want to suggest the heretical notion that the adversary system may no longer be the best way for our legal system to deal with all of the matters that come within its purview. If the learning of the late twentieth century has taught us anything it is that truth is illusive, partial, interpretable, dependent on the characteristics of the knowers, as well as the known, and most importantly, complex. In short, there may be more than two sides to every story. Thus, the binary nature of the structure of the adversary system and the particular methods and tactics of its use in the legal system may often thwart some of the essential goals of any legal system. In this paper I will argue that our epistemology has sufficiently changed in this era of post-structural, postmodern knowledge so that we need to reexamine the attributes of the adversary system as the "ideal type," as well as the practice on which our legal system is based. While the adversary system has been justified for the ways in which it satisfies a variety of truth and justice criteria, I believe that how we consider those criteria are themselves contingent and must be historicized and reconsidered as our knowledge base changes.

I will argue here that the adversary system is inadequate, indeed dangerous, for satisfying a number of important goals of any legal or dispute resolution system. My critique operates at several different levels of the adversary system--epistemological, structural, remedial and behavioral. I would like to suggest that we re-think both the goals that our legal system should serve and the methods we use to achieve those goals. For those who cleave to the adversary system I want to shift the burden of proof for them to convince us that the adversary system still does its job better than other methods we might use.

My critiques are briefly as follows (to be further elaborated below): Binary, oppositional presentations of facts in dispute is not the best way for us to learn the truth. Polarized debate distorts truth, leaves out important information, simplifies complexity and obfuscates where it should clarify. More significantly, some matters (mostly civil, but occasionally even a criminal case) are not susceptible to a binary (right/ wrong, win/lose) conclusion or solution. This may be so because we cannot with any degree of accuracy determine the facts, because conflicting, but legitimate, legal rights give some entitlements to both (or all) parties, or because human or emotional equities cannot be sharply divided (parental rights in child custody, for example.)

Modem life presents us with complex problems which often require complex and multi-faceted solutions. Courts, with what I have called their "limited remedial imaginations" (limited by statute and common law to the powers of granting monetary damages or injunctions) may not be the best institutional settings for resolving some of the disputes we continue to put before them.

Even if some form of the adversary system were to be defensible for purposes of adjudication in particular settings," the "adversary" model of the courtroom has inappropriately bled into and infected many other aspects of lawyering, such as negotiating both "in the shadow of the court'" and outside of it in lawyers' transactional work.

Even where there are simply facts to be determined, the complexities of modem life (such as the strong race issues implicated in a variety of our more notorious recent cases) make it problematic that even the same "facts" will be interpreted the same way by different people . Thus, it is not only the structures of the adversary system that I find wanting, but how we think about the people within them.

Assumptions underlying the use of the adversary system-objectivity, neutrality, argument by opposition and refutation, appeals to common and shared values and fairness-have all been questioned by modem scholars outside of (as well as inside) law and in my view, it is time that we examine how these assumptions, which are often not "true" have affected our legal system. Lay people claim a crisis of legitimacy in the legal system (when the "race card" is deemed more important than any other factor in a trial) when jury verdicts are often not trusted and we as scholars must take these critiques seriously.

Multi-culturalism, and all of the controversy it has spawned in the universities, has at least reminded us that there is demographic, as well as epistemological "positionality" and we do not all see things the same way. Thus, with a healthy respect for the new knowledge about knowledge, we need to examine whether the adversary system helps or hinders the way in which we sort out disputes, differences, misunderstandings and wrongdoing.

Furthermore, the complexity of both modem life and modem lawsuits has shown us that there are often more than two sides to a dispute in the sense that many more than two parties are involved in legal disputes and transactions. Thus, procedures and forms like interpleader, joinder, consolidation and class actions have attempted to allow the voices of more than plaintiffs and defendants in, all the while still structuring the discourse so that parties must ultimately align themselves on one side of the adversarial line or another. Multi-party, multi-plex lawsuits or disputes may be distorted when only two sides are possible. Consider all of the multi-party and complex policy issues before courts in environmental clean-up and siting, labor disputes in the public sector, consumer actions, antitrust actions, mass torts, bankruptcy, school financing and desegregation and other civil rights issues, to name a few examples.

Finally, modem adversarialism has been criticized for the ways in which it teaches people to act toward each other. While I share some of the views of the critics of the incivility of lawyers I am more concerned that the rhetoric and structure of adversarial discourse prevents not just better and nicer behavior, but more accurate and open thinking.

A culture of adversarialism, based on our legal system, has infected a wide variety of social institutions. While I will focus primarily on the legal system and legal ethics here, consider how debate, argument and adversarialism have, in recent years, dominated journalism, both print and electronic media, political campaigns, educational discourse, race relations, gender relations, labor and management relations, to name only a few examples.

After I complete my critique of the adversary system, you will wonder what I seek to substitute in its place. It should be obvious that as a post-modern, multi-cultural thinker I have no one panacea, solution or process to offer-instead, I think we should think about a variety of different ways of structuring process in our legal system when our goals and objectives are multiple. The determination of guilt may not require the same process as allocating human, parental or civil rights or money. There are situations where mediation, inquisitorial-bureaucratic investigation, public fora or conversations, "intermediate sites of discourse," private problem-solving (negotiation) or group negotiation and coalition and consensus building would better resolve the legal and other issues involved. Thus, I am suggesting variety and diversity in our legal process which will, in turn, require more diverse and complex thinking about what legal ethics would be appropriate in different settings. Some might prefer to reform the adversary system to keep it protean enough to remain inclusive, as a model, for all of our legal system. In my own view this will not be adequate and we need to explore alternative models of legal process and ethics that will better meet the needs of more complex post-modern, multi-cultural disputes and issues.

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