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.
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