Appraising the Adversarial System

1
Appraising the Adversarial System
2
Some Views of the Law

• The Law is an Ass
• To commence legal action is to enter a bleak
  house in which one abandoned all hope
  Charles Dickens
• Shakespeare's Hamlet was confronted by delays at
  law

3
WA Law Reform Findings

• WA Law Reform Commission reported in 1999 that
  the system was
• Inefficient
• Expensive
• Overly time-consuming and
• Complex

4
Adversarial Concerns

• Procedures reinforce the problems of the
  adversarial system
• Search for the truth is SECONDARY to the
  manipulation of the rules of the contest so as to
  win

5
Adversarial Concerns

• The assumption that the truth will emerge as a
  result to the contest may be flawed.
• Assumptions are
• Each party has equal knowledge resources
• financial resources and expertise are unequal in
  reality
• The parties themselves will adduce the truth
• in reality lawyers represent the parties use
  expert knowledge to manipulate the rules

6
Adversarial Problems

• Thus
• A trial becomes a strategic contest between
  highly expert legal representatives for whom
  winning is more important that disclosing the
  truth

7
Alternatives to the Adversarial System

• The Inquisitorial System
• Judge (inquisitor) is responsible for
  investigation of disputes
• Inquisitor requests evidence and interviews
  witnesses as part of pre-trial procedure
• Inquisitor can determine questions of guilt etc
  without a formal trial reducing the need for a
  formal trial procedure
• Relaxed rules of evidence allow hearsay etc.
  Relevance is the only criteria as to the
  admissibility of evidence

8
Advantages of the Inquisitorial System

• Better expertise in evidence gathering in the
  adversarial system parties will only present
  evidence that will advantage their case
• Timely resolution due to ability of inquisitor to
  compel evidence
• Reduced manipulation of evidence and rules
  because parties have little control of
  proceedings
• All law is codified there is almost no
  equivalent to Common Law developed by judges.
  This reduces judicial discretion

9
Judges Lawyers

• In the Adversarial System judges are high status
  professionals because of their impartiality and
  law-making ability. Lawyers are very highly paid
  because they hold expert knowledge necessary for
  success
• In the Inquisitorial System judges are respected
  because of their central role but they lack the
  status of judges in adversarial systems. Lawyers
  have a much less prominent place because the
  parties dont present their own case

10
Adversarial v Inquisitorial

• The Adversarial system is said to the Rolls
  Royce of legal systems
• It is expensive
• It is based on established tradition and heritage
• It delivers sound justice according to the
  principles of natural justice

11
Adversarial v Inquisitorial

• The Inquisitorial system is said to be the
  Volkswagen of legal systems
• It is cheaper
• It works adequately in achieving its goals
  justice according to the principles of natural
  justice

12
References

• Willmott Dowse pp 343-344
• Aldous Chapter 9 pp 260-281