An article I wrote for Farrago in 1981!
What if there existed a group of people who, for a sufficient amount of money, would use their persuasive skills to argue for any cause their employer wished? And what if these paid persuaders could influence the administration of justice, and the outcome of judicial inquiries, be there a fine, a jail term or a death sentence at stake? What would you call such people? Amoral, putting money before justice? Intellectual prostitutes?
In fact, they are called lawyers.
Harsh perhaps, but it remains that under our “common law” legal system, or that part of it known as the adversary process, lawyers are in the position of having a financial interest in the outcome of court proceedings. In effect, they are betting on justice, their argumentative skills determining the odds.
Put simply, the theory of the adversary process is that the head-on collision of opposing views in a dispute, presented by professional advocates skilled in rhetoric, should, in the manner of a dialectic, somehow produce the Truth in the minds of the judge and jury, all things being equal.
In practice, lawyers have differing levels of skill, and the litigation tends to become – to quote Sir Richard Eggleston – “much more a contest between advocates than between parties”. In the same vein, German legal expert Professor Dr W Zeidler wrote: “the English law judge is an umpire sitting at the sidelines watching the lawyers fighting it out and afterwards declaring one of them the winner”.
It seems that in this setting, finding a correct and just solution to a dispute becomes far less central than it should be.
The financial interest of lawyers in the outcome of court cases is a particular problem in the United States where fees depend on verdicts; but even in Australia, where the fee is set before the final fall of the gavel, lawyers’ incomes are still at stake: the more successful they are, the more briefs they will win in the future, and the more they can charge.
Thus, the more money one has, the better lawyer one can afford, a fact which becomes critical to outcomes in the adversary system.
This compounds, and is compounded by, lawyer monopolies on most forms of litigation. Lack of representation of a litigant is held to be unthinkable lest the judge “descends into the fray and has his vision clouded by the dust of conflict”, and indeed under such circumstances the adversary system does break down. It is further worsened by the legal code forbidding competition, which seems to stem from a pretence that justice is not a business – obviously, at least under the adversary system, it is.
The adversary system has other undesirable consequences, not the least of which is the style in which it causes witnesses to be examined. Says Sir Richard Eggleston: “although they have sworn to tell the…whole truth and nothing but the truth, they are constantly exhorted to confine their testimony to answering the questions they are asked…if they indicate that they wish to give an explanation, they must wait until they are re-examined by their own counsel…they are prevented from including any mention of facts they have heard from others, even though…those facts are in the mind of the witness essential to explain what he himself did and why he did it”.
Eggleston goes on to say that “the whole system of eliciting evidence by question and answer is calculated to persuade the witness that he must only tell the favourable parts of his evidence”.
In the words of Mrs Forman, a client of lawyer Douglas Rosenthal whom he quotes in his book “Lawyer and Client: Who’s in Charge?”:
“When the lawyer is questioning you, they twist your words; they don’t let you tell the story; they interrupt; they make you out to be a liar and a fool. I just cried and cried. You can’t explain what happened with just yes or no answers…if you are honest or tell the truth calmly, it isn’t enough. That’s terrible.”
Her story is common. A game of hyperbole is played by both sides; if one side plays with moderation and restraint, they lose.
Professor Dr Zeidler notes that in non-adversary legal systems, it is considered that allowing the questioning of witnesses by lawyers is “incompatible with the most important rule, namely that it is the chief function of a court of law to find out the truth and not merely to decide which party has adduced better evidence”.
Further, in the adversary system, a party is not likely to call witnesses at all who would adversely affect their case, and if the other party does not know about them (and we should not suppose that the first party is likely to inform them) then possibly vital testimony will not even be heard by the court.
Are we to blame lawyers for all this? Are they greedy, unprincipled, utterly unconcerned with justice?
That would be unfair. Anyone wishing to participate in the machinations of justice must contend with the system in which it is embedded. Radical lawyers Zenon Bankowski and Geoff Mungham summarise their predicament nicely: “the radical lawyer is entangled in a situation where he is committed to undermining the very structure that provides his own power base in the world”.
So what alternatives exist? Not the sole, but the most obvious is the European system of civil law, know rather pejoratively in English as the “inquisitorial” system (a better name would be “investigatory” or “judicial”). It is so named because the judges (who may sit as a panel) are able themselves to question and call witnesses, and make any investigations they consider necessary to arrive at the truth.
Contrary to English law, it is assumed that the judges know the law and that the presentation of the facts is enough; they are not restricted, like the common law judge, to passively absorbing whatever evidence is presented by the lawyers. Rather than an aloof “umpire”, the inquisitorial judge is like the director of an improvised play whose outcome depends on the actors’ responses to his or her directions.
To borrow Zeidler’s analogy, the adversary system is like a train driven by the advocates, who take turns deciding where the train will stop; its destination is ideally the due and equitable process of law. The European train, on the other hand, is driven by the judge, with the lawyers acting as co-drivers and stationmasters; its destination is uncovering the truth.
Despite popular myth, the defendant in an inquisitorial trial is not presumed guilty until proven innocent, rather, no assumption is made at all.
Under the inquisitorial system, there is nothing like the system of private practice we are familiar with: the function of lawyers, who may be state employees, is to delineate the area of dispute and to provide relevant facts and evidence. Each lawyer’s brief is available to the other. While they represent the litigants, they see themselves more as administrators of the law than as combatants in a battle of wits. They are there to help the court discover the truth, rather than to try independently to persuade it to their point of view. They are expected to obey the rules of the court even if this is not requested by the other party. The judges’ vision is unlikely to become clouded, because there is little “dust of conflict”.
There is little questioning or examination of witnesses, who make their statements freely in narrative form with minimum interruption, after which the judges ask questions designed to extract more detailed testimony. They may then summon any additional evidence they find necessary, including calling independent experts – as opposed to the experts called by adversary lawyers, who are notoriously as eager to affirm their lawyer’s questions as they are liable to contradiction by their opponent’s “counter-experts”.
Some may object that the biases of the judge may become too significant in this system. But the very same bias exists unacknowledged in the adversary process and is only further complicated by the personal and financial biases of the lawyers.
On a more pragmatic note, given the clogged state of our courtrooms, some thought should be given to the efficient use of legal time: the investigatory system leaves little room for legalistic procrastinations or plea bargaining. The investigatory judge is also obliged to encourage the parties to come to an early agreement if possible; something which is less likely in the adversary system since it would cost the lawyers a job of work.
The legal profession is slow to change; a lot of well-paid jobs are at stake. Whether or not he would agree with these remarks, these words from Mr Justice Kirby of the Law Reform Commission, are nonetheless appropriate: “according to some the requirements of change are such that we should abandon…lawyers’ monopolies, overthrow the adversary system, drastically modify the trial process, change fundamentally the…work lawyers do and commit the profession to service to the community… We may come to that.”