Academic journal article
By Mead, Walter B.
Judicature , Vol. 92, No. 2
Reforming our broken system of justice by Walter B. Mead Adversarial justice: America's Court System on Trial, by Theodore L. Kubicek. Algora Publishing. 2006. 210 pages. $29.95 ($23.95 paper).
Adversarial Justice: America's Court System on Trial, by Theodore (Ted) Kubicek, is a refreshing and alarmingly candid scrutiny of the American bar and the American system of justice, and what we can do to reform the broken system.
This book should be required reading in all law schools. Because of its clarity, it also warrants being on the 'must reading' list of the layperson, who has long sensed that something is seriously wrong with the American justice system, but also wonders specifically what - apart from the interminable delays and prohibitive costs incurred in seeking justice - is wrong and what can be done about it. Further, the perusal of this brilliant and courageous critique should be considered imperative for legal practitioners, most of whom are fully aware that something is broken, if not indeed 'rotten,' in the state of their chosen profession.
The author's own experience is instructive:
During my forty years practicing law, I avoided the field of battle known as the courtroom as much as possible as I soon became disenchanted with the adversarial system of justice.... I have long hoped the judicial system would change, a useless wait so far, although a few, mostly judges and law professors, have questioned the system. These writers have been largely ignored by the organized bar. (p. 5)
Kubicek and his sources identify some of the problems with our adversarial system. Chief among them is the fact that the process, as the word 'adversarial' suggests, is not consensual and collegial between the parties, but contentious. The courtroom is described as a scene of batde. And Kubicek reminds us that
while most comments throughout this book seem to apply to our criminal system, keep in mind that the adversarial system applies equally to our civil procedure. Whether it is a criminal or civil case, all parties - plaintiffs, prosecutors, and defendants alike - desire to win. (pp. 54-55)
Elsewhere, he notes that where the remuneration of attorneys, in civil cases, is based upon a percentage of the award of the court, there is even further incentive to win. And winning - whether in civil or criminal cases - being the supreme objective, unfortunately, means winning at virtually all costs - constrained, at best, only by very ambiguously and loosely defined professional guidelines and, not infrequendy, gready stretched interpretations of both statutory and constitutional law. This means that truth, itself so integral a part of the inquisitorial system, is jettisoned, except where it conveniently does not interfere with the objective of winning. Kubicek observes that, within the "game-playing" rules of the adversary system, "No lawyer deemed [worthy of her salt] would engage in a trial with an attitude of not winning. . . .Truth [being too often obstructive of this goal] becomes irrelevant." (p.19)
The same ABA Rules that suggest that attorneys have an obligation to act as officers of the court also emphasize their responsibility to win and, therefore, to "zealously advocate" for their clients. Kubicek makes it clear that you can't have it both ways. The Rules are, indeed, replete with inconsistencies, ambiguities, and loopholes. Presumably, an attorney who acts in the spirit of being an officer of the court and thereby is deemed insufficiently zealous in advocating for his client could be punished for his laxity.
In their attempt to win at all costs, under the rules of adversary justice, lawyers employ a practically endless repertoire of tricks. "The adversarial trial system," Kubicek says, "opens wide the doors to all kinds of irrelevant but successful trial tactics on the part of defense counsel." He critiques all of these adversarial devices, and more, proposing that there are a few procedures in the adversarial system that, if not abused, can be retained in a more inquisitorial approach, many that must be significandy curtailed, and still others that simply are so inconsistent with the pursuit of truth and justice, at least in contested cases (that is, in all criminal and some civil cases), that they must be eliminated. …