UCLA School of Law professor emeritus Michael Asimow has published a paper pondering an apparent contradiction in American’s views of lawyers and the adversary system:
Lawyers and lay people in the United States generally believe that the adversary system is the best way to deliver justice in a civil or criminal trial. Broadly speaking, adversarial procedure leaves most critical pre-trial and trial decisions such as discovery, the framing of issues, choice of witnesses, the questions directed to witnesses, and the order of proof in the hands of lawyers. The central precept of the adversary system is that the sharp clash of proofs presented by opposing lawyers, each zealously representing the interests of their clients, generates the information upon which a neutral and passive decisionmaker can most justly resolve a dispute. In contrast, legal systems outside the Anglo-American world employ inquisitorial pre-trial and trial procedures that leave critical elements of the process under the control of a judge rather than the attorneys.
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The unquestioned dominance of the adversarial system seems paradoxical because the general public despises and distrusts lawyers. In an ABA poll conducted by M/A/R/C Research, only 14% of the public were extremely or very confident in lawyers and 42% were only slightly or not all confident. People had far more confidence in judges: 32% were extremely or very confident in judges and only 22% had slight or no confidence in judges. Why, therefore, would people want to turn over something as important as control of the pre-trial and trial processes to lawyers whom they thoroughly distrust, rather than to judges whom they distrust much less? Why would they prefer a system whose objective is to generate ‘trial truth’ rather than real truth, substantive justice rather than procedural justice? This article speculates about some possible solutions to these puzzles. [Footnotes omitted; emphasis in original.]
Professor Asimow suggests that attitudes toward the real life adversary system have long been shaped by the stories of purely fictitious advocates. "Popular culture has taught us that the adversarial system uncovers the truth about past events. According to familiar pop culture narratives that we absorb from the cradle onward, lawyers working within an adversary system are champions of justice and liberty."
Asimow’s Exhibit A is the greatest criminal defender of them all, Perry Mason. Exhibit B? A rather less polished upstart from the outer boroughs of New York:
A staple of lawyer movies is the brilliant cross-examination that destroys a lying, deceptive or mistaken witness and reveals the truth. Although many such movies are instantly forgettable, some are exceptionally vivid. Just to name a couple, take the immortal My Cousin Vinny. Vinny Gambini has recently passed the New York bar exam (after numerous failures) before traveling to Alabama to defend his young cousin and a friend in a murder trial. Vinny is clueless about Alabama culture and criminal procedure, but nevertheless morphs into a brilliant trial lawyer. His cross-examinations are devastating. For example, one eye-witness claims he saw the two ‘utes’ enter the Sack o’ Suds grocery store and exit five minutes later in a green car. He knows it was five minutes because he looked up just as he started and just as he finished cooking his morning grits. Vinny points out that in the rest of the grit-eating world, it takes 20 minutes to cook grits. The witness is destroyed. Vinny also deploys his girlfriend Mona Lisa Vitto, an unemployed hairdresser, as an expert witness on auto mechanics to devastating effect. This scene effectively validates the existing system of partisan expert witnesses. [Footnotes omitted.]
The entire paper, (M. Asimow, "Popular Culture and the Adversary System"), with many more examples, can be downloaded as a PDF from Social Science Research Network. Link via Christine Corcos at the Law & Humanities Blog ("Michael Asimow on the Image of the Adversarial System in Popular Culture," Dec. 1).
2 Comments
It’s rather like someone wanting a large and aggressive dog to guard their own property, but complaining about the neighbor’s watchdog…
I don’t see the cognitive dissonance.
Let’s assume, for the sake of argument, that 80% of judges are trustowrthy, and 80% of lawyers are untrustworthy.
In an inquisitorial system, that means 20% of cases will bee decided essentially entirely by an untrustworthy person, who has complete control of the proceedings. What are the incentives of the judge? What can the agrieved party (by the judge) do about it?
In an adversarial system, that means I probably have an untrustworthy lawyer, but one whose incentives line up with mine. My opponent also has (most likely) an untrustworthy lawyer, but one whose incentives line up with his. There is a judge, who might not be trustorthy, but who doesn’t have full control of the proceedings – each lawyer gets their turn.
It’s not about individual trust – it’s about how oftn the system produces a just result. It’s about how well the system limits damage by bad actors.
Our system used to handle it moderately well. A loser-pays system would help steer us back to that.
An inquisitorial system handles bad actors very poorly.