The Adversary System: Who Wins? Who Loses?

The legal system in the United States is known as an adversary system. In this system, the parties to a controversy develop and present their arguments, gather and submit evidence, call and question witnesses, and, within the confines of certain rules, control the process. The fact finder, usually a judge or jury, remains neutral and passive throughout the proceeding.

Critics pose some disturbing questions about the adversary system: Is justice served by a process that is more concerned with resolving controversies than with finding the ultimate truth? Is it possible for people with limited resources to enjoy the same access to legal services as do wealthy people? Does a system that puts a premium on winning encourage chicanery, manipulation, and deception?

The 1995 trial of O. J. Simpson, an actor, sportscaster, and professional football player accused of murdering his former wife and her friend, cast unprecedented scrutiny on the criminal justice system, and left many people wondering whether truth or justice play any role in its operation. Each day for over a year, the trial was televised in the homes of millions of people, most of whom had never seen the inside of a courtroom. They were fascinated and repelled by prosecutors and defense attorneys who argued relentlessly about seemingly trivial points. Even more disturbing to some viewers was the acrimonious name-calling that went on between the two sides as each attempted to discredit the other's evidence and witnesses. Likewise, the 1994 trials of Eric and Lyle Menendez, wealthy brothers who admitted killing their parents but whose first trials ended in hung juries, left many Americans bewildered and angry at a system that seemed unable to convict confessed murderers. Defense attorneys are quick to point out that the Constitution guarantees that the accused is innocent unless found guilty in a court of law, and it is impossible to protect the innocent without occasionally protecting the guilty. Lawyers are obligated to challenge the evidence against their clients, even if that means impugning the police or attacking a victim's or witness's character. It is their job to win an acquittal by whatever legal and ethical means within their power.

Disparaging the legal system has become something of a national pastime. Indeed, criticism of the system comes from all corners of the landscape, including the top of the system itself. The late Chief Justice warren e. burger was outspoken in his lambasting of the system and of lawyers, asserting that they are too numerous and too zealous, that they file too many frivolous lawsuits and motions, and that there is general failure within the system to encourage out-of-court settlements. Burger was a vocal proponent of Alternative Dispute Resolution (ADR). He advocated the use of nonlitigious solutions such as mediation or Arbitration as a means of reducing court congestion. Supporters of the adversary system point out that it is not clear that the savings reaped from ADR always outweigh the costs. In situations where the parties are not at equal bargaining strength, questions arise as to whether settlements are extracted through duress. Some attorneys and litigants have noted that ADR is often as adversarial in nature as litigation, with evidence presented and slanted by counsel. They further complain that there is no guarantee that an arbitrator will be informed about the subject matter of the dispute, and therefore no guarantee of a fair outcome.

Without doubt, during the 1980s and 1990s, the United States experienced tremendous growth in the number of civil suits filed. The results were clogged courts, trial delays, and increased legal costs. However, the experts disagree on how to solve these problems. Critics of the system clamor for reforms to address what they perceive as its deficiencies, whereas many commentators, particularly those within the legal profession, feel that the system, although imperfect, is actually working the way it is designed to work and should not be altered.

One criticism of the adversary system is that it is slow and cumbersome. The judge, acting as a neutral fact finder, can do little to accelerate a trial, and procedural and evidentiary rules further slow the process. Likewise, the wide availability of appellate review means that a final determination can take years. However, at least one study has shown that in courts where adversarial trials were discouraged and settlements actively encouraged, litigants still encountered substantial delays in resolution. And supporters of the adversary system maintain that a methodical, albeit cumbersome, system is necessary for protection of individual rights.

It is fair to challenge the ethics of a legal system that places a higher value on winning than on truth seeking. At least one commentator has characterized the system as one in which lawyers spend more time avoiding truth than seeking it. But proponents argue that the vigorous clash of opposing viewpoints eventually yields the truth, and that allowing the sides to fight it out under specific rules that guarantee fair play allows the truth to surface on its own.

Many other complaints have been leveled against the United States' adversary system. Some feel that because the parties control the litigation, they are encouraged to present only the evidence that is favorable to them and to suppress evidence that is unfavorable. Criticism of attorneys abounds. Some feel that the lawyers' ethics code encourages zealous representation at the expense of truth, making attorneys, in the words of Burger, "hired guns" (In re Griffiths, 413 U.S. 717, 93 S. Ct. 2851, 37 L. Ed. 2d 910 [1973]). Others complain that lawyers file too many frivolous lawsuits and have become too dominant in the adversary process. Some even say that the rules of evidence, designed to guarantee fairness to all parties, actually work against fairness by preventing important information from being presented to the fact finder.

Defenders of the adversary system are quick to refute each criticism lobbed at it. They contend that it is necessary for the parties to control the litigation in order to preserve the neutrality of the judge and jury. They point out that lawyers, although as susceptible to corruption as any other group, are governed by a code of ethical conduct that, when enforced, deals effectively with instances of overreaching. And, while conceding that evidentiary rules may be subject to manipulation, they vigorously maintain that such rules are the only means by which to ensure fairness and prevent judicial abuse.

The criticism of the U.S. legal system that may be most difficult to refute has to do with accessibility. It cannot be plausibly argued that an average criminal defendant has the same access to Legal Representation as O. J. Simpson or the wealthy Menendez brothers, nor can it be argued that an injured plaintiff in a civil suit is in an equal bargaining position with a huge corporation. Yet, supporters of the adversary system counter that unequal access to legal services is the result of economic and social conditions, not the structure of the legal system, and that changing the way legal services are delivered would do nothing to address the root causes of the disparity. They also point out that the much criticized contingency fee arrangement, by which an attorney is paid a percentage of the award her or his client receives, opens the courts to members of the population who could not otherwise afford legal representation.

Most legal experts agree that, in the long run, the adversary system results in societal benefits that outweigh its inherent shortcomings. By allowing all sides of a controversy to be heard, the system protects against abuse of power, and forces those with the most at stake to focus on the issues in dispute. At its worst, it can be manipulated to the benefit of those least deserving, but at its best, it offers every injured party a forum for relief, sometimes against powerful odds. No doubt, the arguments about whether and how to change the system will go on into the twenty-first century. As a system that has evolved over three hundred years, it probably will undergo some changes. But the basic values at its heart, such as Presumption of Innocence, the right to trial by jury, and protection of individual rights, appear to be firmly cemented as the cornerstones of U.S. Jurisprudence.

The scheme of American Jurisprudence wherein a judge or jury renders a decision in a controversy between or among parties who assert contradictory positions during a judicial examination such as a trial, hearing, or other adjudication.

U.S. courtrooms have often been compared to battlefields or playing fields. The adversary system by which legal disputes are settled in the United States promotes the idea that legal controversies are battles or contests to be fought and won using all available resources.

The contemporary Anglo-American adversary system has gradually evolved, over several hundred years. Early English jury trials were unstructured proceedings in which the judge might act as inquisitor, or even prosecutor, as well as fact finder. Criminal defendants were not allowed to have counsel, to call witnesses, to conduct cross-examination, or to offer affirmative defenses. All types of evidence were allowed, and juries, although supposedly neutral and passive, were actually highly influenced by the judge's remarks and instructions. In fact, before 1670, jurors could be fined or jailed for refusing to follow a judge's directions.

The late 1600s saw the advent of a more modern adversarial system in England and its American colonies. Juries took a more neutral stance, and appellate review, previously unavailable, became possible in some cases. By the eighteenth century, juries assumed an even more autonomous position as they began functioning as a restraint on governmental and judicial abuse and corruption. The Framers of the Constitution recognized the importance of the jury trial in a free society by specifically establishing it in the Sixth Amendment as a right in criminal prosecutions. The Eight Amendment also established the right to a jury in noncriminal cases:"In Suits at Common Law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law."

The independent judiciary was somewhat slower in developing. Before the 1800s, English judges were still biased by their ties with the Crown, and U.S. judges were often politically partisan. U.S. Supreme Court Chief Justice John Marshall, who served from 1801 to 1835, established the preeminence and independence of the high court with his opinion in marburyv. madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803). Marbury established "the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution" (Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401, 3 L. Ed. 2d 5[1958]). By the early 1800s, attorneys had risen to prominence as advocates and presenters of evidence. Procedural and evidentiary rules were developed, and they turned the focus of litigation away from arguments on minute points of law and toward the resolution of disputes. The basic parameters of the United States' modern legal system had been established.

In the Anglo-American adversary system, the parties to a dispute, or their advocates, square off against each other and assume roles that are strictly separate and distinct from that of the decision maker, usually a judge or jury. The decision maker is expected to be objective and free from bias. Rooted in the ideals of the American Revolution, the modern adversary system reflects the conviction that everyone is entitled to a day in court before a free, impartial, and independent judge. Adversary theory holds that requiring each side to develop and to present its own proofs and arguments is the surest way to uncover the information that will enable the judge or jury to resolve the conflict.

In an adversary system, the judge or jury is a neutral and passive fact finder, dispassionately examining the evidence presented by the parties with the objective of resolving the dispute between them. The fact finder must remain uninvolved in the presentation of arguments so as to avoid reaching a premature decision.

The Anglo-American requirement of an impartial and passive fact finder contrasts with the requirements of other legal systems. For example, most European countries employ the Inquisitorial System, in which a judge investigates the facts, interviews witnesses, and renders a decision. Juries are not favored in an inquisitorial court, and the disputants are minimally involved in the fact-finding process. The main emphasis in a European court is the search for truth, whereas in an Anglo-American courtroom, truth is ancillary to the goal of reaching the fairest resolution of the dispute. It has been suggested that the inquisitorial system, with its goal of finding the truth, is a more just and equitable legal system. However, proponents of the adversary system maintain that the truth is most likely to emerge after all sides of a controversy are vigorously presented. They also point out that the inquisitorial system has its own deficiencies, including abuse and corruption. European judges must assume all roles in a trial, including those of fact finder, evidence gatherer, interrogator, and decision maker. Because of these sometimes conflicting roles, European judges might tend to prejudge a case in an effort to organize and dispose of it. Inquisitorial courts are far less sensitive to individual rights than are adversarial courts, and inquisitorial judges, who are government bureaucrats (rather than part of an independent judicial branch), might identify more with the government than with the parties. Critics of the inquisitorial system argue that it provides little, if any, check on government excess and that invites corruption, Bribery, and abuse of power.

The parties to an Anglo-American lawsuit are responsible for gathering and producing all of the evidence in the case. This challenge forces them to develop their arguments and to present their most compelling evidence, and it also preserves the neutrality and passivity of the fact finder. The adversary process is governed by strict rules of evidence and procedure that allow both sides equal opportunity to argue their cases. These rules also help to ensure that the decision is based solely on the evidence presented. The structure of this legal system naturally encourages zealous advocacy by lawyers on behalf of their clients, but the code of ethics governing the conduct of lawyers is designed to curb the tendency to attempt to win by any means.

The adversary system has staunch defenders as well as severe critics. The image of the courtroom as a battleground or playing field where contestants vie for victory is evident in the news media's preoccupation with who is "winning" or "losing" or "scoring points" in such highly visible cases as the 1995 trial of O. J. Simpson, an actor, sportscaster, and former professional football player who was tried for killing his former wife, Nicole Brown Simpson, and her friend Ronald Goldman.

The emphasis on "winning at all costs" without commensurate concern for truth-seeking dismays some U.S. citizens, and a growing number are demanding reforms in the legal system. During the 1980s and 1990s, the use of alternative forms of dispute resolution such as mediation and Arbitration grew dramatically. However, defenders of the adversary system note that these alternatives have been used all along, in the form of settlement conferences, minitrials, and summary jury trials, and that the vast majority of lawsuits are already settled before the parties ever appear in court.

When a dispute cannot be resolved without a trial, the adversary system is the established method of adjudication in the United States. Indeed, the organized bar remains committed to the notion that vigorous advocacy by both sides of a legal controversy ultimately leads the judge or jury to the facts needed for a fair resolution and that it is the process that is best calculated to elicit the truth and to protect individual rights. Although many concede that the adversary system is imperfect and that it may be subject to abuse and manipulation, the majority still believe that, by giving all parties and their advocates the opportunity to present evidence and arguments before an impartial judge, it promotes a free and pluralistic society with the best available means of settling disputes