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Is an Adversarial Legal System Well Suited For

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Is an Adversarial Legal System Well Suited For could probably chalk up the results to any number of imperfections—dispro- portionate access to evidence, disparate On Reconsideration advocacy skills, a misunderstood ques- tion, a mis-phrased answer, a key docu- ment that somehow disappeared and nev- IS AN ADVERSARIAL er became part of the evidence, a witness whose distorted memory was persuasively LEGAL SYSTEM WELL communicated and unjustifiably believed, an ambiguous email that created a false SUITED FOR DELIVERING impression, a litigation budget that sank under the weight of crippling discovery, JUSTICE? 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- KENNETH R. BERMAN den biases led to an erroneous credibility Kenneth R. Berman is a partner at Nutter McClennen & Fish LLP in Boston and the author of Reinventing assessment or a mistaken legal ruling. The Witness Preparation: Unlocking the Secrets to Testimonial Success (ABA 2018). 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 “On Reconsideration.” That’s the banner of narratives, each of which is then put adversary system favors the better story, this new column. Here, we’ll test our as- through intensive questioning and critiqu- not necessarily the truer one. Emotion sumptions about how justice is dispensed, ing by the opposing lawyer, who fires ver- prevailing over logic. how truth is proven, how we litigators are bal cannonballs at everything attackable. Fact finders believe the story they want supposed to do our jobs. We’ll look at the That process—so the thinking goes— to believe, the one that’s easier to imagine. behavior of participants in the justice tests the evidence, exposes falsehoods and That becomes their truth. If they don’t feel system—judges, jurors, lawyers, parties, mistaken memories, and reveals which good about some other story, they won’t witnesses—and how different behaviors party has more of the truth on its side. believe it, even if it’s the actual truth. influence results. We’ll also spotlight liti- But our system has flaws that some- One hallmark of our system is the in- gation challenges and opportunities that times allow a party to lose when it ought terplay between passive actors and active lurk in the shadows, ones that can make to win. Regrettably, the system that deliv- ones. Adjudicators are passive; lawyers big differences in outcomes if we were ers true justice also on occasion miscarries. and witnesses are active. For the most only aware of them. The consequences can be devastating. part, adjudicators are spectators, watch- This column is meant to rethink what Innocent people go to jail or face death ing the lawyers and witnesses make their we do and why we do it. Why don’t we do sentences. Victims deserving of compen- presentations until it’s time to reflect on it differently? Should we change it up? It’s sation get nothing. Defendants who did what was presented, decide the case, and meant to offer a fresh perspective, question nothing wrong are forced to pay huge announce the winner. the status quo, and make us ask: Is this right? sums or go into bankruptcy. The final decision might or might not Does this need fixing? Is there a better way? When the legal system delivers the be the same as what a faithful applica- So let’s begin. As this is the first col- wrong result, money, property, liberty, tion of the law and a fair assessment of umn, we’ll start at the macro level: Is an and life can be lost and society will suffer. the merits would produce when applied adversarial legal system well suited for to the real facts. It will only be what the delivering justice? adjudicator thinks is the right outcome Our system is grounded on the idea that Why Justice Goes Awry based on however the adjudicator inter- justice is most effectively delivered when If a morbidity and mortality analysis were prets the evidence that the litigants were dueling advocates present competing done on each miscarriage of justice, we able to present, interpretations influenced 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 1 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. by the adjudicator’s life experience and no empirical way to know the degree and become the nominee or the president, so personal biases. frequency of disparity between perceived the thinking goes. Adjudicators will resolve conflicts truth and actual truth—in essence, what But that’s not the reality. What the about the facts in the privacy of their own we should understand is our adversary process illuminates well is not what type thoughts. Fairness assessments will be system’s margin of error. Is it better or of president the candidate would be, but shaped by personal standards and an indi- worse than, say, a polygraph machine? something else: how effectively a candi- vidual sense of right and wrong. Any evidence we have about this is date can answer loaded questions. Or ar- But how is the adjudicator’s interpreta- purely anecdotal. It rests on unreliable gumentative questions. Or how skillfully tion of the facts also shaped by the adversarial sources—disgruntled litigants, or lawyers a candidate can deliver those kinds of process that develops them? Do aggressive who contend that, in the cases they lost, questions, hoping the opponent will give questions that are put to nervous witnesses, the adversary system did not do its job. a bad answer or tender up an unflattering and summations that appeal to emotion rath- The winning side always thinks the system sound bite. Or how cleverly a candidate er than logic, really deliver objective truth? worked correctly. The losing side, not so can smear an opponent. Or, despite the good intentions of law- much; perhaps never. yers who genuinely believe that their And in a close case, the winning side questioning is in service of the actual might think that, but for a twist of fate, the Generally, our truth, does the process instead show the adversary system could have failed them adjudicator, on occasion, only a distorted terribly as well. adversary system version of it? Or two distorted versions? Or a truth represented by only some key favors the better story, facts? Or a truth with makeup on it? Or Presidential Debates a truth without important context? Or Perhaps we can draw some meaningful not necessarily the something far afield from the truth? opinions about the reliability of adver- If we can rationally accept that, at least sary systems generally by looking not at truer one. on occasion, the adversarial process shows the adversary justice system but at a dif- the adjudicator a version of the truth that ferent adversary system: the presidential Look, for example, at how the meaningfully departs from the actual truth, election system. Like judges and litigators, Democratic candidates in the early debates then we must confront this question: How politicians are also accustomed to the idea this year tripped over themselves to show often does that happen? that the best way to choose a winner is to how aggressively they could attack each Could we say with any measure of con- put the contenders through an adversary other or grab airtime. The debates had the fidence that the adversary system reliably process, not a trial but a debate. feel of a verbal free-for-all or boxing match. leads the adjudicator to the actual truth at The modern custom began in 1960 The morning-after headlines were not pret- least 95 percent of the time? Or 75 percent with a staid and civil debate between John ty: “Bloomberg rivals pounce on stop-and- of the time? Less? More? Kennedy and Richard Nixon. In current frisk.” “Things turn ugly between Klobuchar And if we could measure not just fre- versions, these debates are more rough- and Buttigieg.” “A whiff of desperation in quency but the degree to which outcomes and-tumble. In primary season, they look the Democratic pile-on.” “Democrats hurl diverge from the actual truth in any given like a chaotic circus, with candidates el- stinging attacks across the stage.” case, how often would that divergence be bowing out each other for precious airtime For those who were hoping that the de- greater than, say, 25 percent? Or 50 percent? to elevate their signal above the noise. bates would show the Democratic field at All of which leads to this essential ques- In that process, the candidates answer its best, what they got was a Democratic tion: What are the acceptable metrics of un- tough questions from journalists or each field at its worst. A triumph of short-term reliability? How much disparity between other, and the decision-makers—voters tactics over longer-term strategy. Of self- outcomes and actual truth should we toler- and pundits—assess those answers not interest over collective public good. ate before we conclude that the particular just by their content but by how well they Of course, questions in a political debate truth-finding mechanism is flawed? Or needs were presented. The process assumes are more loaded and leading than those at refinement or fixing? Or needs to be swapped that each candidate, through adversarial a trial, if such a thing is possible, and the out altogether in favor of something else? questioning, will give answers that prove rules of engagement more ad hoc.
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