from Courts on Trial
When we say that present-day trial methods are "rational," presumably we mean this: The men who compose our trial courts, judges and juries, in each lawsuit conduct an intelligent inquiry into all the practically available evidence, in order to ascertain, as near as may be, the truth about the facts of that suit. That might be called the "investigatory" or "truth" method of trying cases. Such a method can yield no more than a guess, nevertheless an educated guess.
The success of such a method is conditioned by at least these two factors: (1) The judicial inquirers, trial judges or juries, may not obtain all the important evidence. (2) The judicial inquirers may not be competent to conduct such an inquiry. Let us, for the time being, assume that the second condition is met--i.e., that we have competent inquirers--and ask whether we so conduct trials as to satisfy the first condition, i.e., the procuring of all the practically available important evidence.
The answer to that question casts doubt on whether our trial courts do use the "investigatory" or "truth" method. One mode of trials is commonly known as "contentious" or "adversary." It is based on what I would call the "fight" theory, a theory which derives from the origin of trials as substitutes for private out-of-court brawls.
Many lawyers maintain that the "fight" theory and the "truth" theory coincide. They think that the best way for a court to discover the facts in a suit is to have each side strive as hard as it can, in a keenly