THE ADVERSARY SYSTEM || We Do Have an Adversary System, Don't We?

We Do Have an Adversary System, Don't We?Author(s): C. Steven TomashefskySource: Litigation, Vol. 18, No. 1, THE ADVERSARY SYSTEM (Fall 1991), pp. 23-26, 56-57Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759501 .

Accessed: 11/06/2014 10:21

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to Litigation.

http://www.jstor.org

This content downloaded from 185.44.79.69 on Wed, 11 Jun 2014 10:21:25 AMAll use subject to JSTOR Terms and Conditions

http://www.jstor.org/action/showPublisher?publisherCode=aba

http://www.jstor.org/stable/29759501?origin=JSTOR-pdf

http://www.jstor.org/page/info/about/policies/terms.jsp


We Do Have an Adversary

System, Don't We?

by C. Steven Tomashef sky A significant passage in a recent Supreme Court Rule 11 decision has gone unnoticed. In Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., Ill S. Ct. 922

(1991), the plaintiff alleged that the defendant had infringed certain copyrighted entries in its directory of computer prod? ucts and services. To support its claim, Business Guides cited 10 false entries, intentionally planted in its directory to trap the unwary. Chromatic Communications had supposedly picked them up in its rival offering.

Three days before a requested hearing on a TRO, the district judge's law clerk called Business Guides' attorneys and asked them to specify what was incorrect about each of the 10 allegedly copied listings. The firm responded by retracting its infringement claim for three of the listings. As the Court's opinion tells the tale:

[t]he District Court considered this suspicious and so conducted its own investigation into the allegations of

copying. The District Judge's law clerk spent one hour

telephoning the businesses named in the (allegedly copied) listings, only to discover that 9 of the 10

listings contained no incorrect information.

IIIS. Ct. at 925. "Unaware of the District Court's discov?

ery," Business Guides' attorneys jumped into the snake pit by submitting an affidavit claiming that seven of the alleg? edly copied listings contained incorrect information.

Not surprisingly, Rule 11 sanctions followed. What is

surprising is the Court's lack of concern about the district court's departure from the ordinary procedures of the adver? sary system. T^he central premise of the system is that the truth will become evident when opposing interests vigor? ously present their self-interested positions to a neutral arbi? ter. That arbiter is expected to apply its existing knowledge and life experience but is not ordinarily called upon to inves?

tigate disputed facts. Indeed, the arbiter is usually prohibited from doing so.

Mr. Tomashefsky practices law at the Chicago office of Jenner & Block.

The district court's self-help in Business Guides is remi? niscent of the Continental "inquisitorial system" in which the neutral judicial figure is principally responsible for

researching and developing the facts, with minimum in? volvement from the parties or their lawyers. Business Guides aside, the Continental system has never won many supporters on this side of the Atlantic. Some say we find it hard to accept the notion of an "inquisition" as the basis of

legal procedure. Others cite our distrust of government. Yet others consider the U.S. legal profession too deeply in? vested in the adversary system.

It is not my purpose either to praise or to knock the

adversary system. I leave it to others to defend the proposi? tion that?to paraphrase Winston Churchill?the adversary system is the worst way of resolving disputes except for all the other ways that have been tried. Even the true believers among us must acknowledge, however, that the reality of the

adversary system often differs significantly from the ideal. Like it or not, everyday litigation raises a variety of chal?

lenges to the notion that we do, or even can, find the truth

through the clash of adversaries before a neutral arbiter. Some challenges are of obvious significance. At the other

extreme are challenges less evil but more subtle and poten? tially insidious. First, the obvious ones, the systemic failures.

Usually they are explicitly outlawed or prohibited, and they are not supposed to happen. But they do happen. They include:

? The arbiter is not neutral No one likes to believe that this is a common feature of our system or more than a rare occurrence. Yet the well-publicized "Operation Greylord" prosecutions and the impeachment of several federal judges show that corruption is a continuing possibility within our

system. Nor is there reason to believe that the judges in? dicted, convicted, and impeached so far represent the full extent of the existing problem. And if there is no neutral arbiter, there is no adversary system.

? The advocate sells out the client. Like judges, lawyers can be?and occasionally are?bought. Conflict-of-interest rules attempt to prevent lawyers from trading on their cli

Litigation Fall 1991 Volume 18 Number 1



^^^^^^

ents' confidences for their opponents' benefit. And the threat of malpractice liability may reinforce some weak lawyers' resolve to be honest. But after-the-fact malpractice or fraud

litigation is small comfort for a client who has been sold out. ? The arbiter is incompetent Many U.S. jurisdictions are

still committed to election of judges, which guarantees a

representative judiciary?one of mixed intelligence. To be sure, incompetence does not necessarily favor one side or the other. Nor is it peculiar to the adversary system. However, every experienced litigator knows its impact on the indi? vidual case can be dramatic.

Those are extreme examples of features that we tolerate in milder form despite their threat to our system's integrity. Consider the efficacy of the adversary system if:

? One or both advocates lack adequate legal skills. Only minimal protections are available. The Constitution offers criminal defendants some relief through the jurisprudence on ineffective assistance of counsel. Civil litigants enjoy the invisible and often undetectable hand of the market in weed?

ing out lawyers who just can't win a case. But such mecha? nisms are often too crude to ensure the competence of the advocate and hence the vitality of the adversary principle in the individual case. And even competence may not be

enough to ensure the "correct" outcome, as the lore on the

exploits of famous trial lawyers in tough cases unwittingly suggests.

? The parties* resources are mismatched. Even if the parties are equally interested, one side often has greater financial resources to develop and present its position. There are, of

course, such protections as the constitutional obligation to

appoint counsel in criminal cases and the limited statutory or local-rule authority to appoint counsel to indigents in civil cases. Contingency-fee arrangements also enable some liti?

gants to obtain representation they could not otherwise afford. In the majority of cases, however, the system accepts economic

mismatches notwithstanding their impact on the result. ? The arbiter is biased. If the judge isn't crooked or incom?

petent but isn't truly neutral either, how well can the system work? Again, the system provides relief in extreme cases. Recusal may be required if specific statutory criteria are met or there is an "appearance of impropriety." See, e.g., 28 U.S.C. ?? 455(b). In other cases, however, a biased arbiter is tolerated or even protected. Suppose, for example, that dur?

ing the course of a case, the judge grows to loathe the sight of one party's lawyer. We generally say that bias is the lawyer's own fault. Other biases may not be readily apparent?even, sometimes, to the judge who harbors them. Litigants have no basis for relief from hidden judicial prejudices based on race, sex, or commitment to certain economic or social theories, even if those theories may determine the outcome.

The system tolerates all these departures from pure prin? ciple. They are seen as inevitable elements of human nature or our social and political culture. There are also cases in which the system seeks to accommodate competing principles by tolerating significant differences in the parties' access to rel? evant facts. Thus, privilege doctrines enable parties to hide information that might change the outcome of a dispute. We argue over the merit of specific types of privileges, but we

generally accept the protection of privileged information as sound policy. The sanctity of lawyer-client communications, itself possibly necessary for the adversary system to work, takes precedence over the search for truth. These problems are at least known, and we have learned to

live with them. But the Business Guides decision exempli? fies a new type of challenge to the adversary system, result?

ing from neither a clear systemic breakdown nor the accom? modation of competing principles. Business Guides may represent a pragmatic response to a practical problem but at the same time it involves judicial consideration of evidence or legal arguments that one or both parties had no opportu? nity to contest.

Business Guides is not an isolated example of adversarial breakdown. Judges' notions of pragmatic approaches to

dealing with crowded dockets and impatience with the ad? versary process as an engine of truth finding can lead to other types of cautionary examples. Business Guides involved a factual investigation independent of evidence submitted and

argued by the parties. Other cases involve courts' decisions based on legal arguments not actually raised by the prevail? ing party. Finally, there are cases affected by the surprising number of ex parte contacts that occur these days in legiti? mate or semilegitimate contexts. Broadly justified by the case load crisis or the icon of procedural efficiency, all these

developments should be examined carefully. Are they really necessary? Do the short-term gains they promise in indi? vidual instances justify the slippage from the adversarial toward the inquisitorial model?

Consider Judge (Sherlock) Holmes, who wants to follow his counterpart in the Business Guides case. Suppose he or his law clerk is on the phone this very minute checking our witnesses' testimony or verifying statements in documents




we have submitted. Even if we assume there are no inten? tional misstatements or outright deception, how do we know the judge will get it right? How do we know the judge?or the law clerk?will understand the nuances or appreciate the context of what he hears? You may have taken months to

digest the facts and labored to present them simply yet fairly. The judge's five-minute phone call could easily leave your case in shambles.

Still, in Business Guides, the Supreme Court thought noth?

ing was amiss. Perhaps nothing really was. Of course, there can be no sympathy for the position that Business Guides should have been permitted intentionally to hoodwink the Court. Moreover, it is likely that the other side would eventu?

ally have called the matter to the Court's attention. Thus the issue seems to be principally one of timing: Was the false? hood to be discovered sooner or later?

But what if the other side had never discovered the error? In an adversary system, parties are generally bound by their own mistakes. Through oversight or tactical considerations, parties occasionally admit or fail to deny untrue proposi? tions. If the other side conceded the copying, might Business Guides argue that it was entitled to profit?

This kind of argument drives proponents of the inquisito? rial system nuts. When the truth is in doubt, there is no shame for the adversary system in admitting that it produces "litiga? tion truth" as best it can. But it is hard to justify a system set

up to ignore truth that can be discovered. Nor should we advocate a policy that tempts people to make false allega? tions, hoping the other side is too incompetent to catch them.

Langbein, The German Advantage in Civil Procedure, 52 U. Chi. L. Rev. 823, 866 (1985). Why not give U.S.

judges at least some of the investigatory powers of their Continental counterparts?

As with many arguments built on a worst-case scenario, the proposed cure is neither necessary nor necessarily better than the supposed disease. Occasional abuse does not justify granting detectives' licenses to U.S. judges. There are, of course, no relevant statistics, but experience and logic sug? gest that a party's deliberate misrepresentations will rarely go undetected by opposing counsel. More fundamentally, judicial fact investigation succeeds

in Continental procedure because the parties (and their law?

yers) expect it and presume that the Continental judge's resources and specialized training will lead to the right an? swer. Id. at 856. In our system, fact investigation by the judge introduces a third element, a wild card that upsets the adver?

sary balance between the original parties. The judge does not take over the fact-gathering process but may weigh in with

unequal force in favor of one side. The party on the other side must then convince the judge that not only the opposing lawyer but the judge herself got the facts wrong. With the

judge as both arbiter and adversary, established burdens of

proof go out the window. A close cousin to the sleuthing jurist of Business Guides is

the judge who researches and applies the law on his own. You file a complaint alleging damages under 28 U.S.C. ?? 1983. The defendant (a state official) files a motion to dis?

miss, claiming the two-year personal-injury limitations pe? riod has run. You argue that the five-year "catch all" limita? tions period should apply. The court grants the motion to dismiss without addressing the limitations period. Instead, the court holds sua sponte that the official is absolutely

immune, an argument the defendant never raised. Here, as when the judge acts as fact investigator, the adver?

sary process has in some sense been evaded. I am aware of no statistics about the number of motions decided on legal grounds neither party advanced, but I suspect this phenomenon is more common than judicial fact sleuthing. See, e.g., Doe v. St. Joseph's Hospital, 788 F.2d 411 (7th Cir. 1986).

As the loser, you have several complaints. First, the win? ner has gained an undeserved benefit. You might have sus?

pected there was an immunity problem lurking in the case, but you heaved a sigh of relief when the motion to dismiss failed to raise, and therefore waived, the issue. See Sinwell v.

Shapp, 536 F.2d 15, 19 (3d Cir. 1976). Second, you have had no opportunity to argue against the

immunity defense. Had the defendant raised the issue, your brief would have argued forcefully against its application. You would have cited cases the judge may have overlooked, and you would have shaped, polished, and buffed the facts until they shone with your client's reflected image. Now

your only recourse is a motion for reconsideration or an

A close cousin to the sleuthing jurist of Business Guides is the judge who researches and

applies the law on his own.

appeal. Either will increase your client's expense and put you at a disadvantage. As the Sixth Circuit has observed, the

adversary process is distorted when the judge becomes "a

proponent rather than an independent entity." Tingler v.

Marshall, 716 F.2d 1109, 1111 (6th Cir. 1983). Your third complaint when the judge becomes an indepen?

dent investigator of the law is that the court has been de?

prived of your creative thinking?born as it may be of des?

peration. Judges who decide cases without responding to the adversaries' legal arguments may miss significant new

points. Although judges are usually credited for landmark decisions, it is the litigants who usually suggest the grounds. Remember that the Continental inquisitorial system of pro? cedure is linked to the Continental code system of law. Continental judges have less freedom to develop the law than do their U.S. counterparts, and their decisions have less

precedential value.

Finally, you have a client relations problem. Only the most confident or the most foolhardy lawyer would have included a section in the brief called "The Defendant Doesn't Argue Immunity, but Immunity Doesn't Apply in Any Event." Yet the client who hears that the case was decided on an issue

you did not argue may wonder what you are getting paid for. Even if you are the winning lawyer, you may feel uneasy

about the court's gift to your client. In fact, your client relations problem may be worse than the loser's: Your client

may wonder why you were needed at all. Or perhaps you and

your client intentionally avoided raising the immunity issue because you were confident in the statute of limitations

argument and wanted to establish a clear precedent on that

point for your client's future use in similar suits. Worse yet,




the issue the court reached out to decide may actually hurt

your client's interests in the long run. The court has several justifications for its decision to

ignore the parties' arguments. Judges say they can't be bound by litigants' inadequate legal arguments. Courts have, in other contexts, recognized that the system's integrity sometimes requires the court to step in when the lawyers fail. Issues like subject-matter jurisdiction and immunity must be raised by the court sua sponte if the lawyers do not raise them. A judge should not be manipulated into stating incor? rect or incomplete legal principles because the parties have not submitted adequate materials for decision. That can only create misleading or incorrect precedents that will confuse or

prejudice future litigants. Nor do the parties have a vested right in obtaining a

decision based on a particular legal argument they choose to

dispute. See Crowley Cutlery Co. v. United States, 849 F.2d 273, 275 (7th Cir. 1988). The defendant's lawyer in our case

may have wanted to establish the applicability of a two-year statute of limitations for the client's future as well as present benefit. But courts are not bound to use their limited re? sources to confer such future benefits. Doctrines and rules

governing the case-or-controversy requirement, standing, ripeness, mootness, and subject-matter jurisdiction are sup? posed to confine the court's decision-making resources to

real-life, present controversies.

At the end of the day, none of the parties' arguments justifies preventing the court from deciding the case on a

ground neither party raised. On the other hand, none of the court's arguments really justifies deciding the issue on a nonadversarial basis without giving the parties a chance to

argue. The proper procedure is for the court to raise the issue and require further briefing. Doing otherwise would prob? ably not save time and resources even if the matter is cut and-dried. If the issue was not briefed before the decision, the losing party would probably file a motion to reconsider or appeal anyway. Doe, 788 F.2d at 415.

A third category of challenges to the adversary system is ex parte contact between the court and a litigant. Our codes of legal ethics prohibit it. But as the world of litigation becomes more complex and the courts' dockets become more congested, even parties and judges with no malice in their hearts may be tempted to take certain shortcuts for

efficiency's sake. The ABA's canons of professional ethics have long recog?

nized that a lawyer and judge may communicate ex parte "as

provided by law." Despite some uncertainty about what is

provided for by law, the list may include obtainment of

temporary restraining orders, federal grand jury proceedings, and proceedings against aliens suspected of terrorism.

Apart from these proceedings, however, a world of ex

parte communication pervades ordinary civil litigation. Usu?

ally these contacts are overlooked because it is understood that they are not intended to influence the outcome on the

merits. Yet they may have that effect and may cynically be used for that purpose. Therefore they are suspect and should be viewed with caution in an adversary system. These con? tacts include:

?In camera document review. Discovery disputes over

allegedly privileged documents frequently cannot be re? solved by argument. Once it is asserted that a document

represents a communication between a lawyer and a client,

the party opposing the claim of privilege cannot get a look see unless an exception applies?the "crime fraud" excep? tion, for instance, or a claim that the communication was not intended to be confidential or otherwise made to obtain advice. Yet, it is virtually impossible to argue these positions when you don't know what the document says.

The Advisory Committee on Civil Rules has proposed an amendment to Rule 26 of the Federal Rules of Civil Proce? dure. The amendment would require the party asserting a

privilege to provide "a description of the nature of the docu? ments, communications, or things not produced that is suffi? cient to enable the demanding party to contest the claim." The theory behind this proposal is logical and laudable, but in practice a party seeking disclosure will get little relief. No

privilege log will contain an entry reading "memorandum of conference between Rosencrantz Lawyer and Guildenstern Client regarding coverup of fraud."

Under existing practice and probably for the foreseeable future, the party seeking disclosure typically must request in camera review by the court. If the court finds the documents to be privileged, they will remain secret. The catch is that

they are secret only from you. They are now all too familiar to the court as well as the proponent of the privilege.

That is not always a problem. Often the party asserting the privilege wants to keep the documents out of the fact finder's hands because they contain adverse information. The judge may remember those damning documents later, when deciding a summary judgment motion or a motion in limine or even at trial.

In camera review may also hurt, however. I was once involved in a case in which we believed a group of key documents withheld by our opponents contained the smok

ing-gun evidence. It was bad news when our opponents decided to give us a peek at the documents in order to avoid an expensive discovery fight. We immediately suspected? and our inspection confirmed?that the documents were duds. We settled. But what if, believing the documents con? tained the damning evidence, we had requested judicial re?

view, the judge had upheld the privilege, and we had pursued our theory of the case? Or even worse, what if the documents had contained work product persuasively arguing the other side's theory of the case.

Such circumstances wreak havoc with the basic assump? tions of the adversary system. The solution, of course, is review by a judge or magistrate who will not be involved in

deciding the merits. See, e.g., Manual for Complex Litiga? tion, 2d ? 20.122 (1985). In state court systems with no

magistrates, you and the system may be protected by nonunitary judicial calendars preventing the judge who re? solves pretrial disputes from trying the case. Even in unitary calendar jurisdictions or federal jurisdictions where magis? trates are not regularly used, it is sometimes possible to

request review by an uninvolved judge?at least when the volume of documents to be inspected is small. Without these alternatives, you are probably stuck with

little sympathy from the court. You must choose between two equally unattractive departures from the adversary sys? tem: forgoing potentially crucial evidence or submitting it to the court with no idea of its impact. Shouldn't the system demand a better way?

? Settlement conferences. In some jurisdictions, judges (please turn to page 56)




cumstantial object. The witnesses'

fragments of memory parade by. Documents and things are brought to

court, also by witnesses. It's a puzzle. Jurors like to solve puzzles. If my story seems true, it shows them how the pieces fit."

Jason asked, "It's not a big-firm little-firm thing?"

"Not necessarily," Susan replied. "But you can't trust me on this. I've chosen my style of practice, and I have to tell clients I'm what they need. I'm

with Henry here. No preconceptions." I was still puzzled. "At the pretrial

conference, why didn't you have to

give the other side the copy of Newton's lecture?"

Susan Psalmer smiled. "Not re?

quired. It was impeachment material. I used the Sir Charles Russell gambit. By the time I had to show the document, the witness was already impaled on it."

Charles confessed having had reser? vations about Susan's style of cross examination. "But in your hands it worked. You had just the right combi? nation of living dangerously and being prepared. Like the old boy who kept a bottle of whiskey in the desk drawer for snakebite and in his other drawer kept a box of snakes."

Psalmer gave Charles an appraising glance, then said innocently, "Henry, old friend, if you're collecting phallic imagery, don't forget to say that it was a

serpent who taught it all to Eve in the

garden." i?

Adversary

System (continued from page 26)

regularly hold settlement conferences in which they meet separately with each side. As Magistrate Judge Wayne Brazil notes in his fascinating article "What Lawyers Want from Judges in the Settlement Arena," 106 F.R.D. 85

(1985), judges may use these ex parte meetings to discuss with each side pri? vately the reasonableness of each

party's settlement position and conces? sions worth considering. 106 F.R.D. at 87. With both sides present, the conver? sations could not be candid enough to

work. The impact of ex parte settlement discussions can be enormous. In one

particularly significant instance of shuttle diplomacy, a judge and three

special masters managed to bridge a settlement gap that started at more than a quarter billion dollars. Schuck, The Role of Judges in Settling Complex Cases: The Agent Orange Example, 53 U. Chi. L. Rev. 337 (1986).

As part of this shuttle diplomacy, judges may require submission of an ex parte written position paper or a

summary of the evidence a party ex?

pects to introduce at trial. Reviewing the documents enables the judge to streamline the settlement negotiations. But reviewing those documents may also shape the judge's view of the case if settlement efforts fail. Of course, a party need not agree to

ex parte settlement discussions. It can be difficult, though, to thwart a judge's desire to facilitate settlement. And some judges will not assist settlement if the parties will not agree to proceed as the judge considers most effective. An alternative solution is to suggest settle? ment discussions with a judge who will not preside over the trial. See, e.g.,

Manual for Complex Litigation, 2d ? 20.122. That may alienate the judge even more. Some judges deny the wis? dom of recusing themselves from settlement discussions, insisting that

they can tune out the parties' confi? dences if they must later decide the case on the merits. See Manual for Complex Litigation 2d ? 23.11 at 160 61. Does anybody really believe that?

? Simultaneous sealed submissions. Federal Rule of Civil Procedure

26(c)(8) permits the court to order si? multaneous submissions of documents "in sealed envelopes to be opened as directed by the court." This provision is

supposed to be valuable in patent cases, where the parties' respective interroga? tory answers about priority of invention

may be decisive. 4 Moore's Federal Practice 2d f 26.76. Wright and Miller

acknowledge that a simultaneous-sub? mission requirement carries the unat? tractive implication that one party would otherwise tailor its response to the data provided by its opponent. But

they justify the rule with the droll com? ment that it may be desirable to prevent an unnecessary opportunity for fraud. 8

Wright & Miller, Federal Practice and Procedure (Civil; ? 2044 at 310.

Simultaneous sealed submissions

have other questionable uses. For ex?

ample, if intent is a key issue, it is often in the defendant's interest to do discov?

ery first in order to find out whether the

plaintiff has any direct proof or merely hopes to go fishing through discovery. Reacting to such an improper effort, the court in Eastern Fireproofing Co. v. United States Gypsum Co., 21 ER.D. 290,291 (D.Mass. 1957), invoked Rule

26(c)(8), requiring both parties to sub? mit their interrogatory answers simul?

taneously, under seal, and without serv?

ing copies to the other side. We do not know whether the proce?

dures followed in Eastern Fireproofing cut short the plaintiff's fishing trip, but the potential for abuse should be appar? ent. Aware that its submission would

get ex parte review, one party might be

tempted to argue its case, even though its submission might later be disclosed.

And judicial review could hurt the

plaintiff. In these days of heightened Rule 11 scrutiny, a judge who learns that the plaintiff filed a complaint with little more than a few scraps of evi? dence and a bare hunch may take a dim view of the plaintiff in subsequent proceedings.

Notwithstanding the court's good in? tentions, it is difficult to square the ap? proach in Eastern Fireproofing with adversarial principles. Rule 26(c)(8) should not be a vehicle for the parties to

make their cases to the judge under seal without revealing the argument to the other side. The rule's proper use should be limited to controlling the timing of

discovery in the rare case in which a

party might obtain an unfair advantage if the other side made first production.

Disclosure to the other side should then follow routinely.

?Informal contacts with the court.

Perhaps because the courts have

chipped away at the adversarial system, other types of ex parte contact also seem more prevalent these days. For

example, counsel frequently address letters to the court, bypassing the for?

mal filing requirements. Indeed, some

judges occasionally request submis? sions in the form of correspondence to save time and expense, most com?

monly for procedural housekeeping. Counsel also occasionally use letters to cite additional authority after briefing is closed or to advise the court of errata in a brief. The appropriate procedure is always

to send a copy of any letter to opposing




counsel. See ABA Model Code of Professional Responsibility DR 7

110(B)(2). If a letter contains substance,

opposing counsel should request that it be placed in the court file?a procedure some judges follow automatically but others do not. If there is an opportunity to

respond to argumentative material in the

letter, little harm will have been done.

Argument by letter can become abu?

sive, however, an end run around brief?

ing schedules and briefing page limita? tions. Worse, some counsel have no

scruples about delivering a letter to chambers that they simply drop in the mail to their opponent for receipt sev? eral days later. That is why some judges return such letters to counsel and ad? vise them to make their arguments in the formally approved manner.

Another increasingly common con? tact with the court is through the court

staff, which is sometimes viewed as outside the charmed circle of ex parte communicants. For example, although law clerks often have a substantive hand in resolving motions and cases, some attorneys feel free to say or write

things to clerks that they would never dream of saying to a judge?and that a

judge would not dream of allowing to be said. When I was a district court law

clerk, counsel would occasionally at?

tempt to confide in me, not necessarily out of an improper motive but possibly because they misperceived a law clerk's role. You may not speak more

freely ex parte to a law clerk than you would to a judge.

At this point, it may be fair to ask what is wrong with each of these chal?

lenges to the adversary system. Does

any of them really stand in the way of the truth? It is not only Professor

Langbein who believes that the objec? tions to recent modifications based on the inquisitorial model may be over? blown. In an oft-cited 1906 speech, Roscoe Pound railed against the "sport? ing theory of justice":

The inquiry is not, What do sub? stantive law and justice require? Instead, the inquiry is, Have the rules of the game been carried out strictly?

Pound, "The Causes of Popular Dissat? isfaction with the Administration of Justice" (1906), reprinted in 35 FR.D.

273, 281-82(1964). Remember, though, that Pound was a

professor of botany before he became a

lawyer. No scientist would accept the

principle that scientific truths could be established through adversary presen? tations to a nonspecialist arbiter. But

legal "truth" is not necessarily similar in kind to scientific truth. For that rea?

son, perhaps, Pound sells procedure short. We Americans are generally will?

ing to accept losing, even if we doubt the correctness of the result, so long as we are convinced the procedure was fair and we had an equal opportunity to

present our case. In the nonscientific realm in which the law operates, the

"right answer" is whatever answer the

right procedure generates. That is what our large body of statutes,

procedural rules, doctrines, and ethical standards is about. They cannot guaran? tee against breakdowns in the system.

Nevertheless, particular breakdowns or

practical difficulties do not justify im?

posing procedures from the inquisito? rial system, which has a wholly differ? ent understanding of legal truth. There is merit in both systems. But that does not mean we can achieve the best of all

possible worlds by freely mixing ele? ments of each. IS

Opening Statement

(continued from page 2)

pleading, or solve a problem. We can? not handle a legal matter at a cost that is realistic in relation to the issues or dollars at stake. We render ourselves too expensive or irrelevant to many litigants; we increase costs of litiga? tion, aggravating the frustrations of those denied access to our system. But our "unavailability" is the product of the individual choices we make every day of our professional lives.

The third subject of concern is the forensic revolution. The nature and content of proof offered at trial are

changing rapidly. Lawyers are increas?

ingly relying on sophisticated scientific and statistical evidence. Complex civil

litigation has grown remarkably, forc?

ing courts and juries to adjudicate an

increasing number of toxic tort, mass

disaster, product liability, and commer? cial cases on the basis of intricate and

voluminous evidentiary offerings. On the criminal side, the development of

complex proof has also been significant as savings-and-loan, RICO, and com?

modities fraud cases demonstrate. In

simple as well as complicated legal ac?

tions, the quality of proof has changed. Courts have more frequently turned to innovative forensic tools ranging from

DNA fingerprinting and gas chroma

tography to probabilistic mathematical

analysis and computer-generated simu? lations and data. The role of the expert

witness has dramatically expanded. We must understand and assess the

comprehensibility and efficacy of the various sorts of "new" evidence and the

expanded role of expert witnesses. Too

often, fake or "junk" science, inadequate laboratory work, and misleading math? ematical data seem to be penetrating the courtroom. Courts struggle to winnow the valuable from the worthless. Tradi? tional approaches to this problem?such as the Frye test, which permits admis? sion of only scientific evidence "gener? ally accepted" by most experts in the field?have fallen into disrepute and have not been replaced by useful guide? lines. Judges and counsel remain reluc? tant to accept court-appointed experts. As courts struggle to decide whether to admit new sorts of scientific informa?

tion, they typically let it all go to the jury. In his Galileo 's Revenge: Junk Science in the Courtroom, Peter W. Huber con? cludes that this permissiveness results in "scientific anarchy" in the courtroom.

Courts are adrift and in need of new methods to cope with the flood of new evidence being offered.

But just as the forms of evidence are

changing, so are the techniques by which evidence is presented. Laser

technology permits instant access to? and retrieval of?videotaped evidence.

Experiments in five federal courtrooms with videotaping of proceedings may render court reporters obsolete at the same time that instant replays of criti? cal testimony become available. The

ability to retrieve and manipulate canned evidence may render it more valuable than the fleeting and non recoverable live testimony of a key wit? ness at trial. No trial lawyer can ignore this new technology. Within a substantial segment of the

bar, there is a feeling that the practice of law has become too combative and

mercenary and that the adversarial na? ture of proceedings has been allowed to

57 Litigation Fall 1991 ? Volume 18 Number

