The Adversary System: A Brief Philosophical Analysis

by

Brenda A. Dixon

Introduction

        A major criticism of our of adversary system is that its judgments are based not on truth, but upon the ability of attorneys to adduce the best evidence and put forth the best arguments while engaged in a rhetorical contest.  That criticism is misconceived in that it presumes that absolute truth can be ascertained.  Any system of jurisprudence, because it is based on imperfect human thought and communication, cannot be absolute.  "Indeed absolute justice like absolute truth is probably incapable of assertainment."¹  The most that can be hoped for is the determination of the most probable truth.  This paper explores the philosophical bases of the adversary system; in short, that "[t]ruth is best discovered by powerful statements on both sides of the question."²

Role of the Judge

        It is generally undisputed that in legal proceedings the decision should be rendered by an impartial and disinterested decision-maker.  But in order to maintain the highest level of impartiality, what relation to the proceedings should the judge have?

        In the inquisitorial system of jurisprudence characteristic of civil law jurisdictions the judge, and not the attorneys, maintains the most control over the proceedings.  While the attorneys "determine through the facts which they introduce and by application what the specific question in the litigation is,"³ the judge advances the course of the proceedings and conducts the hearings at trial.⁴  "He has the duty of finding out the law and to some extent even the facts of the case."⁵  The examination of the witnesses and experts is not in the hands of the attorneys but in those of the judge.⁶  This system is based on the idea that it is the chief function of the court of law to find out the truth and not merely to decide which party has adduced better evidence.⁷  It also rests on the presumption that the judge will be impartial, and that zealous representation of parties on either side will not promote such impartiality.  This presumption is considered incorrect by those who adhere to the adversary system philosophy for the following reasons:

        "[I]n absence of an adversary presentation, there is a strong tendency by any deciding official to reach a conclusion at an early stage and to adhere to that conclusion in the face of conflicting considerations."⁸  Generally, at some early point, a familiar pattern will seem to emerge from the evidence, an accustomed label is waiting for the case and, without waiting further proofs, this label is assigned to it.⁹  This may result from a tendency to attempt to bring the hearing into some order and coherence, for without some tentative theory of the case there is no standard of relevance by which testimony may be measured.¹⁰  "But what starts as a preliminary diagnosis designed to direct the inquiry tends, quickly and imperceptibly, to become a fixed conclusion, as all that confirms the diagnosis makes a strong imprint on the mind, while all that runs counter to it is received with diverted attention."¹¹  In this way the judge becomes somewhat of an advocate for his own view of the case and is hardly impartial.

Role of the Attorney

        The layman may say "surely something must be wrong when, on the one hand, we have courts that are supposed to find out whether a man is actually guilty and when on the other we allow a skilled lawyer to come into court to help a man he knows or believes to be guilty with his persuasive skill."¹²  This view of the matter reveals a basic misunderstanding of the role of the attorney within the legal and particularly the adversary system. For the attorney to make his or her own determination of the guilt or innocence of an accused or of the merit of a legal claim is to usurp the function of the judge.  It is for the decision-maker, judge or jury, to make a judgment on the case, not for the attorney.

        For the attorney, the rightness of the client's case is to be objectively presumed.  That is, the attorney's personal opinion is irrelevant and his or her representation is to be based upon the objective conclusion that the client's case deserves a favorable judgment.¹⁴  Without such a conclusion the representation would be tainted by considerations of the merits, and all plausible arguments might not be advanced.  This does not mean that an attorney may not urge his client to settlement based upon the probability of success of a claim, for this is a matter of probability and not of merit.

"[W]hat is the purpose of' courts of justice? It is that every man may have his cause fairly tried, by men appointed to try causes.  A lawyer is not to tell what he knows to be a lie; he is not to produce what he knows to be a false deed; but he is not to usurp the province of the jury and of the judge and determine what shall be the effect of the evidence - what shall be the result of legal argument. As it rarely happens that a man is fit to plead his own cause, lawyers are a class of the community, who, by study and experience have acquired the art and power of arranging evidence, and of applying to the points at issue what the law has settled.  A lawyer is to do for his client all that his client might fairly do for himself, if he could.  If lawyers were to undertake no causes till they were sure they were just, a man might be precluded altogether from a trial of his claim, though, were it judicially examined, it might be found a very just claim.^"15

Logic, Dialectic and Rhetoric

        Taking as two basic premises of the adversary system, (1) that the decision maker should hear both sides of the case and (2) that in order for this to occur the attorney must provide representation based upon the objective justness of his client's claim, one should then examine the intellectual processes through which such legal representation occurs: logic, dialectic, and rhetoric.  Logic is the technique of our own thinking;¹⁶ dialectic, the technique of disputing;¹⁷ and rhetoric is the technique of using any form of communication for the purpose of obtaining desired responses from others.  Each has a function within the art of legal advocacy.

        These intellectual processes must necessarily begin with logic.  It would be unreasonable to expect an advocate to present a case without thinking out a plausible, persuasive argument.  Of course the logical formulation of a plausible argument presumes some reasonable level of cognizance on the part of' the decision-maker.  It also seems clear that all rhetorical actions of the advocate, including both verbal and nonverbal communication, begin with logic; that is, the logical determination of what actions to take.  The resulting persuasive acts can be classified as (1) dialectic, which consists of logical, oral questioning or argument, and (2) rhetoric, which includes any other verbal or nonverbal communication designed to influence the decision-maker. Of course, dialectic is also rhetoric, as it fits within that definition.  However, dialectic is a specialized type of rhetoric, which must take logical form in its presentation to another.  Many types of rhetoric do not take logical form because they are used simply for effect and do not depend on the plausibility of any particular argument. Dialectic, on the other hand, depends on the plausibility of the arguments it asserts so that it is a logical process¹⁸; dialectic must be distinguished from science in that it does not seek to discover the truth of any matter.¹⁹  In dialectic, there is no truth as such, and no set view of reality.²⁰  Dialectic begins with a plausible view of a disputed matter and poses logical questions designed to explain why that view is the most plausible view.²¹  This is why one may say that legal advocacy is an exercise in dialectic.  The advocate asserts no set view of reality.  Rather, he or she simply engages in a dialectical exercise to assert the plausibility or objective truth of his or her client's side of the case.  It is through observing this exercise that the decision-maker may weigh both sides and render a judgment.²²  The judgment so rendered is not based on absolute truth, but on the most probable truth or most plausible view of the subject of litigation.  This is expressed in our burdens of persuasion: "beyond, a reasonable doubt" in criminal cases and "clear and convincing evidence" or "preponderance of the evidence" in civil cases.  Certainly it is hoped that what is determined to be the objective truth is also the truth, as such, although the process is subject to error.  For the reasons stated above, it is generally accepted in our culture, that the adversary system is more likely to yield a just decision than are systems of jurisprudence that do not involve the dialectical process in representation.

        Therefore, when the advocate is engaged in the dialectical exercise within litigation, his or her concern includes arranging the tactics of the questioning and not simply presenting a logical argument.²⁴  This is the point at which the rhetorical aspect of dialectic becomes clear.  The logical argument passes from a purely demonstrative form, not concerned with the reactions of others, to a persuasive and therefore rhetorical form.

        In light of these considerations, what is the justification for the advocate's also using purely rhetorical means in his or her attempt to persuade the decision-maker?  That is, if we are dealing with the plausibility of views as revealed through dialectic, how is the use of a rhetorical device concerned only with obtaining a desired reaction, a favorable decision, to be justified as an acceptable tool for the advocate?  One might conclude that the use of pure rhetoric does not aid in discovering even the objective truth, and therefore runs counter to the philosophy of the adversary system.  However, pure rhetoric does have its proper role to play.

        One must remember that it is not for the attorney to judge the merit of the client^'s case; that is only for the decision-maker to do.  Again, the attorney should act as advocate based on the objective truth of the client's claim.  The most desirable form of advocacy may be that of convincing the decision-maker by logical means of the merit of the client's case.  But what if logical means are not enough?  An attorney may put forth a perfectly logical argument using the best of dialectical skill and nevertheless, the decision-maker may be more convinced by the argument of the opposing attorney.  Is the attorney advocate to concede defeat on the rejection of his logical arguments, even though there are other rhetorical means which may tilt the scales in the client's favor?  The answer is no.  The client's claim is no less objectively true.  In adhering to the responsibility to act as advocate, the failure of one means of persuasion does not relieve the attorney of his or her duty to promote the client's claim, which must remain objectively true for the attorney advocate until the final judgment is rendered. Of course "a lawyer is not to tell what he knows to be a lie: he is not to produce what he knows to be a false deed,"²⁵ but enhancing the persuasive effect of logical arguments with rhetorical skill is clearly within the province of the advocate.

Conclusion

        This brief analysis supports the view that the adversary system of jurisprudence generally arrives at the most probable truth in legal disputes on which the decision-maker may render a judgment.  Even more important, however, "by the strength of their advocacy and zeal on behalf of each client, attorneys in an adversary system affirm the proposition that individuals have rights that antagonists cannot ignore.  A society that encourages a profession devoted to the vindication of private rights is likely to be a society in which such rights will be respected."²⁶

Notes

^..........1 Hartley William Shawcross, The Functions and Responsibilities of an Advocate, 30 OKLA. B.A.J. 1089, 1091, (1959).

² Id.

^..........3 W. Zeidler, Evaluation of the Adversary System: As Comparison, Some Remarks on the

Investigatory Svstem of Procedure, 55 AUSTL. L. J. 390, 395 (1981).

^..........4 Id.

^..........5 Id.

^..........6 Id.

^..........7 Id.

^..........8 HAROLD JOSEPH BERMAN, TALKS ON AMERICAN LAW 39 (1960).

^..........9 Id.

^..........10 Id.

^..........11 Id. at 40.

^..........12 Id. at 33.

^..........14 This value is in question by proposed ethics rules.

^..........15 Hartley William Shawcross, supra note 1, at 1100.

^..........16 A. SCHOPENHAUER, THE WORLD AS WILL AND IDEA, 285 (1948).

^..........17 Id.

^..........18 J. EVANS, ARISTOTLE'S CONCEPT OF DIALECTIC 10, 21, 23, 29, 30, 32, 38, 83 (1977).

^..........19 Id. at 5, 32.

^..........20 Id. at 5, 34.

^..........21 Id. at 38, 80, 83.

^..........22 Stephan Landsman, The Decline of the Adversary System and the Changing Role of the Advocate in that System, 18 S. D. L. REV. 251, 254 (1981).

^..........23 J. EVANS, supra note 18, at 75. Aristotle makes this distinction between logic and dialectic, which was not recognized by Plato. See Evans at 7, 8, 9.

^..........24 Id. at 34.

^..........25 Hartley William Shawcross, supra note t, at 1100.

^..........26 Stephan Landsman, supra note 22, at 261.

Bibliography

HAROLD JOSEPH BERMAN, TALKS ON AMERICAN LAW (1960).

J. EVANS, ARISTOTLE'S CONCEPT OF DIALECTIC (1977).

Stephan Landsman, The Decline of the Adversary System and the Changing Role of the Advocate in that System, 18 S. D. L. REV. 251 (1981).

A. SCHOPENHAUER, THE WORLD AS WILL AND IDEA (1948).

Hartley William Shawcross, The Functions and Responsibilities of an Advocate_, 30 OKLA. B. A. J. 1089 (1959).

W. Zeidler, Evaluation of the Adversary System as Comparison, Some Remarks on the Investigatory System of Procedure, 55 AUSTL. L. J. 390 (1981).

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