October 08, 2020 Feature

Is an Adversarial Legal System Well Suited for Delivering Justice?

Our system has flaws that sometimes allow a party to lose when it ought to win.

Kenneth R. Berman

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“On Reconsideration.” That’s the banner of this new column. Here, we’ll test our assumptions about how justice is dispensed, how truth is proven, how we litigators are supposed to do our jobs. We’ll look at the behavior of participants in the justice system—judges, jurors, lawyers, parties, witnesses—and how different behaviors influence results. We’ll also spotlight litigation challenges and opportunities that lurk in the shadows, ones that can make big differences in outcomes if we were only aware of them.

This column is meant to rethink what we do and why we do it. Why don’t we do it differently? Should we change it up? It’s meant to offer a fresh perspective, question the status quo, and make us ask: Is this right? Does this need fixing? Is there a better way?

So let’s begin. As this is the first column, we’ll start at the macro level: Is an adversarial legal system well suited for delivering justice?

Our system is grounded on the idea that justice is most effectively delivered when dueling advocates present competing narratives, each of which is then put through intensive questioning and critiquing by the opposing lawyer, who fires verbal cannonballs at everything attackable.

That process—so the thinking goes—tests the evidence, exposes falsehoods and mistaken memories, and reveals which party has more of the truth on its side.

But our system has flaws that sometimes allow a party to lose when it ought to win. Regrettably, the system that delivers true justice also on occasion miscarries.

The consequences can be devastating. Innocent people go to jail or face death sentences. Victims deserving of compensation get nothing. Defendants who did nothing wrong are forced to pay huge sums or go into bankruptcy.

When the legal system delivers the wrong result, money, property, liberty, and life can be lost and society will suffer.

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