September 01, 2018 Headnote

Uzbekistan Justice, American Style

Uzbekistan Justice, American Style.

Dan Small

Download a printable PDF of this article.

Lawyers often get caught up in the minutiae of litigation. Stepping back from the trees to view the forest can help us regain our perspective. A week spent in Uzbekistan recently, working with lawyers and judges on the adversarial system, has helped me to regain some perspective on our own system.

Uzbekistan emerged from the Soviet era with an authoritarian government and the ancient Byzantine system of justice. Judges there not only decided the case; they often determined the process as well. Standard adversarial tools, such as jury trials and cross-examination, were largely unheard of. Judges were appointed by the government and worked closely with the prosecutors. The role of defense counsel was minimal and passive by our standards.

Lawyers Push for Reform

Slowly and carefully, younger lawyers began pushing for reform. A nongovernmental organization, Regional Dialogue, began bringing small groups of American lawyers and judges to Uzbekistan, to work with lawyers and judges there. But in my first trip in 2013, early in the process, the potential for change was still very uncertain and fragile. Examples of countries that started to move toward reform and then pulled back hard—such as Turkey, Russia, and Ukraine—were vivid in the minds of would-be reformers.

Somehow, the Uzbek seeds of change continued to grow. In 2016, Uzbekistan’s president, who reigned for over 25 years, died and his successor began pushing for societal reform, including reform of the justice system. The pace of change, and the openness to it, increased dramatically. In my third trip, in June 2018, I was amazed to see how far they had come.

During a three-day workshop on trials near Tashkent, the delegation of U.S. lawyers and judges walked through each stage of the trial process, then helped the Uzbeks prepare and present a mock trial of a criminal corruption case. It was an intense and extraordinary session. Some of the lessons they learned are worth reflecting on here, and not just 6,145 miles away in Uzbekistan. For example, we taught them the words of the Greek fabulist Aesop, from almost 3,000 years ago: “Every truth has two sides; it is well to look at both, before we commit ourselves to either.” That idea is the basis for our adversarial system, but it is not an easy one to accept for those raised under an inquisitorial system, where there is generally only one truth. Through a series of presentations, demonstrations, and exercises, we had them learn about and try out cross-examination: the development of two sides to the story. Our mock trial involved witnesses who had changed their stories, and the Uzbeks got to both watch and experiment with this new process.

Dealing with Chaos

We also taught our Uzbek colleagues that trials are, by nature, chaotic. Throughout our two mock trials, witnesses forgot or changed their stories and lawyers argued and pulled out the wrong documents—we repeatedly wove in the same random events U.S. lawyers contend with in trying cases. The Uzbek lawyers learned to cope with these random elements, their judges figured out how to control a courtroom with active adversaries, and the trials went forward.

We also impressed on the Uzbeks the bright line between argument and presentation of evidence. They wanted to argue every question: with the witness, the judge, and the jury. “Question, pause, answer, stop” is not a normal way of communicating, not a normal conversation. It took real effort for them to grasp that questions and answers were the lawyer’s opportunity to develop the building blocks on which they can later base their arguments. The shorter and clearer the question, the more solid the building block it will provide.

Of course, they were nervous. Standing in the well of the courtroom we created, doing things they’d never done before in front of a large group, making mistakes, losing their way. They were surprised and relieved when we told them that was OK, that that’s how we feel too. And we related how helpful the energy and intensity that comes with being nervous can be.

No one knows just where Uzbekistan will end up with its system of justice, but they told us that they learned a lot. The U.S. judges and lawyers learned a great deal as well—about perspective on our own system. And about the courage of men and women who are willing to consider dramatic change to the system they have lived with all their lives, if that is the road to justice. Maybe that is the most important example to follow.

Dan Small

The author is a litigation partner in the Boston and Miami offices of Holland & Knight LLP. A former federal prosecutor, he is the author of Preparing Witnesses (ABA, 4th ed. 2014).