The Myth of Justice in America and the Ascendance of Cooperation over Conflict
The American legal system, through the adversarial process of lawyers advocating their clients' interests, will discover the truth about a case, and the parties involved in the case will be afforded justice through the legal process.
The preceding statement sets forth the two great ideals of the American legal system. The system will find truth and dispense justice through the process of a trial. That truth and justice are the expected outcomes of our legal system is a belief widely held throughout the world. I have spoken with lawyers in such exotic places as Ladakh, India and the Kingdom of Tonga, who regard the American legal system as the zenith in the development of rule by law. Within the U.S., confidence in the justice system remains high relative to other systems and institutions. A survey funded by the American Bar Association in 1999 revealed that most respondents agree that, “in spite of its problems, the American justice system is still the best in the world.”
The belief that our system of justice is the best in the world truly gripped popular consciousness in the middle of the 20th Century. The great civil rights decisions of the U.S. Supreme Court and the opening of jury pools to all registered voters (along with Civics classes which ballyhooed the genius of our entire form of government) were historical developments that reinforced a growing confidence that the American legal system was the best there is at achieving the cherished goals of truth and justice. The famous Warren Court decisions at mid-century, such as Brown v. Board of Education, helped extend the sense of enfranchisement to citizens who previously felt, and were, excluded from full participation in the legal system. The experience of serving on juries, shared by greater numbers of citizens, also reinforced the belief that the legal system is committed to finding truth and doing justice for all.
The American public’s faith in the legal system has, however, seriously waned in my experience of 29 years in the practice of law. Surveys sponsored by the ABA to the contrary, among most people I encounter cynicism about the legal system is deeply embedded. “Lawyer jokes” are as popular as ethnic and racial jokes were in the 50s and 60s.
It is an understatement to say that laypeople encountering the system as parties in a lawsuit do not find it a satisfying experience. “Frustrating, intrusive, emotionally and financially draining” are the usual descriptors. That lawyers are sharks, judges are corrupt, expert witnesses are whores, and everybody tries to “get over on the system” are not just staples of jokes and TV dramas. Those pejorative terms are typical descriptions of the system and those running it. The ABA’s 1999 survey found only 14% of respondents have “strong confidence” in attorneys. I expect it’s even lower now.
The lack of confidence in attorneys engenders a loss of faith in the legal system. It is through lawyers that most citizens experience the system. We attorneys explain, interpret, and influence the system for our clients. If clients’ experience of the legal system was generally positive, there would not be such a low opinion of attorneys. Of course there is cynicism about the fairness of the system among those who cannot afford the most skilled lawyers. Cynicism is just as high among the wealthy and corporate executives, who are able to retain the most expensive legal talent, because they know money influences the result of litigation. The adversarial nature of the attorney’s job, to win the case for the client, is at the root of the growing loss of faith in the system.
But perhaps just in time a sea change within the system began about 25 years ago. There came to be a movement away from conflict and toward cooperation as a better way to resolve disputes. Evidence of the movement is apparent yet subtle. While the number of cases filed in courts has exploded since the 60’s, the number of cases resolved by trial has significantly diminished. For example, in 1962 11.5% of civil cases filed in federal courts went to trial, but only 1.8% of cases filed were tried in 2002, according to a study for the ABA by Marc Galanter, pointedly titled, “The Vanishing Trial.” Statistics for state courts from 1975 through 2004, provided by the National Center for State Courts, shows an even greater trend in many states as to increasing caseloads but decreasing dispositions by trial. New sections in bar associations have been created for certified mediators, because so many lawyers have become mediators.
The jury is still out on whether American culture at large is moving away from conflict as a means of dispute resolution and adopting a more cooperative attitude. Local news daily reports incidents of road rage and gun violence. There are still many pop cultural heroes, like Rambo, who settle disputes with their fists or a gun. Young people have, however, grown up with the zero-tolerance rule for violence in most schools. My 21-year old son recently exclaimed with excitement that some video game now had “co-op” and not just “peer-to-peer competition,” so higher levels in the game can be reached through cooperative effort rather than defeating a foe.
Within the organism of the American justice system there is growing realization that its fundamental premise is not necessarily true . The desire of clients and attorneys to win the competition, to defeat the opponent in the conflict, is such a powerful and inevitably corrupting force that the ideals of truth and justice are lost or terribly compromised in the process.
Lawyers are expected “to represent clients to the best of their abilities.” And most clients just want to win. This unholy alliance of the ego-desire to win and the attorney’s ethic of zealous representation often overwhelms the ideals of truth and justice.
Justice through cooperation, rather than conflict, made its formal appearance in the legal system in experiments with mediation as an “alternative dispute resolution” method in the early 80’s. By 2000 most all federal and state jurisdictions had adopted formal alternative dispute resolution rules, which encourage or require cooperative mediation as a stage in the litigation process. This development is still in an early phase in the long history of Anglo-American law. “Cooperation” is the heir apparent to “conflict”, but conflict still has a firm grip on the throne. Cooperation within the legal system at present is merely an alternative means of dispute resolution.
Conflict and competition are dearly loved by America's sports-crazy culture and deeply rooted in Hellenic-Roman traditions of competitions and trials. But it is one thing to be awed by Olympic competitions and quite another to base a system of justice on competition. We all know the bigger and stronger guy will likely win a fight, even if the smaller contender has right on his side. And we also know that our legal system gives great advantage to the litigant with the greater resources.
The deeply held belief in the righteousness of trial by conflict precedes historical record, but was such an article of faith in the English mind as to be enshrined in the Magna Carta of 1215. In the U.S. law students are indoctrinated into the faith. First Years typically take a course like the one I had at Chicago Kent School of Law in 1976 called “Elements of Justice.” We were taught that one of the elements of justice is that truth will be found through the competitive advocacy of lawyers and justice will thereby be done. But First Years become first year associates and they soon learn the real point is to win. Winning is the lawyer's real job.
In Trial Advocacy, normally a third year course, the trial is often compared to a play. The judge's role in a jury trial is to referee the competition and make sure procedural rules are followed. The jury decides which side wins. Other characters, such as the bailiff and court reporter, play minor roles. Witnesses have both minor and major roles. But the real stars of the show are the lawyers, who produce, write, direct and act. The lawyer, of course, produces a particular version of truth for the court.
The role of attorney is so interesting to popular consciousness countless novels, movies, and TV shows have featured trial lawyers. Yet, it’s a morally ambivalent and sometimes immoral role. A fighter, not for Truth and Justice (like Superman), but for the version of truth that supports the client's case. The lawyer plays his multi-faceted role for pay. She is a hired gun, although she took an oath to uphold state law and the Constitution of the United State of America.
In the mist of ancient English history the tradition of trial by combat may have given birth to the image of attorney as fighter. If not exactly historical, the collective consciousness, encouraged and reflected by popular fiction since Ivanhoe, enjoys the picture of medieval Anglo-Saxon dispute resolution as a jousting competition between two champions. Our modern lawyer-combatants go at it in their armor of three-piece suits wielding briefcases and hurling briefs and exhibits at each other.
Another tradition imposed upon first year law students reinforcing the superstructure of a conflict-based system is the Socratic Method. The point-counterpoint of Socrates and his sophist foils in Plato’s Dialogues is supposedly the model for the teaching method so artfully and famously demonstrated by John Housman in the movie “Paper Chase”. But Plato would cringe at the gross abuse of Socrates’ teaching method. Socrates’ starting point was that he knew nothing and needed help from others in a search for truth. Socrates was not trying to win an argument and had no use for ego. Law professors, in my experience, who use the Socratic Method, have very big egos and know everything about their field of law, at least compared to the First Years chosen to be their whipping boys. The claim of the Socratic Method used in law school is that, through the dialectical method of point/counterpoint, students will synthesize legal principles and “learn to think like a lawyer.” But is the verbal violence done to the students really the most effective way to teach? In “Paper Chase” was truth found in the classroom through the thrashings administered by the great professor, or, did the students, who worked together in a study group trying to help each other succeed, find a better method of learning through cooperation?
The Socratic dialectical-method and dramatic-gunslinger approaches to doing justice are both manifested in the legal system. The system claims that the procedures of litigation are dispassionate and methodically lead to a just outcome. Yet, the language of combat, so often used by participants within the system ("She kicked his butt in that motion hearing!"), reflects a warrior mentality. The interplay of the methodical rule-bound dialectical system with the competitive need to win by litigants often fails to reveal truth and do justice. In actuality, the system encourages lawyers to act immorally.
The rules of procedure and evidence are intended, the system claims, to provide structure to the process of justice, which insures fairness to all parties as all are operating under the same rules. The Rules grow ever-more complex in the quest for a quasi-scientific method by which cases may be processed and disputes rationally resolved. The Federal and most State Bars have standing committees that "improve" The Rules with amendments and revisions each year. A practicing attorney can never rest with the assurance that he has mastered The Rules. The Rules are the great bulwark against the passions and emotionalism of "gunslinger justice."
Yet, because The Rules grow ever-more complex, they are used by lawyers as weapons. A lawyer who knows her opponent has a superior grasp of The Rules quails in fear. Counsel forcefully declaims a citation to sub-part D of section 3 of Rule 605. Opposing counsel slumps lower in the high-backed leather chair at the counsel table realizing his objection will be over-ruled. So, the system moves the case another small step forward, but was truth found or disguised?
Lawyers are paid by clients to win for the client. Most clients have little interest in achieving truth and justice in their case, except to the extent they believe truth and justice are on their side. Clients hire lawyers they think will win. Lawyers who gain reputations as winners command higher fees. Most lawyers want, like most Americans, to get rich. So, most lawyers try to win and obtain the financial gain from being a winner.
The fundamental ethic of a practicing attorney is to advocate the client's interest to the best of the attorney's abilities within the limits allowed by the law. A lawyer is not required to practice in a way which promotes truth and justice. It is the judge’s and jury’s duty to see the truth and dispense justice. Neither is the lawyer required to hold the client morally responsible for the client’s deeds or misdeeds.
The most obvious example of a lawyer acting immorally while following the ethic of “the client’s interest” is a criminal defense attorney trying “to get off” a client the attorney knows is guilty. Most defense attorneys in the initial interview will instruct the client something like, “Don’t tell me whether you are guilty or not. Just give me the facts of your alibi, if you have one.” The defense attorney does not want to be told by the client whether the client committed the crime or not for two reasons: 1. The Rules prohibit an attorney from eliciting testimony that the attorney knows to be false. To preserve the possibility of the client testifying in his own defense, the attorney must shield herself from knowing that the client would lie on the stand about committing the charged offense. 2. It is easier on the attorney's conscience not to know for sure whether the client is guilty or not, and determining guilt or innocence is not the lawyer’s job anyway.
But in most cases guilt or innocence becomes clear to one who has access to the unprocessed facts of a case. If it becomes clear to the attorney that the client is guilty, but the client directs the attorney “to try to get him off,” the attorney will make his best efforts to win the case through a procedural dismissal or a "not guilty" verdict at trial. The attorney will justify this apparent evasion of personal moral-responsibility by citing the principles that “everyone is entitled to a fair trial” and “my role is to be an advocate, it is up to the jury to decide guilt.” In other words, my higher call is to that of advocating my client’s interest not to truth and justice or even to personal moral-responsibility.
If the attorney’s most fundamental duty were to truth, justice and moral responsibility, the attorney would have to try to hold the client accountable for the client’s wrongful action. Social ethics require that each member of civil society act responsibly toward the community and to call those to account who have acted irresponsibly. The attorney who tries to get his guilty client off is violating a fundamental requirement of moral responsibility. But that is the calling of the attorney in an adversarial system.
To turn away from conflict and the consequent encouragement of moral irresponsibility in its principal players will require the legal system to recognize cooperation as a superior means to resolve disputes. When cooperative dispute resolution is the goal of the system, and truth and justice are left to the gods to decide, the legal system will have transformed itself into a new system.
Over the last 25 years alternative methods to litigation have been incorporated into the legal system. The Rules now include Alternate Dispute Resolution Rules (“ADRs”). The ADRs include arbitration, expedited “mini-trials”, and mediation.
Arbitration and expedited mini-trials are quicker and less expensive than a jury trial. Their creation is a response to the complaints that litigation is too slow and expensive.
Mediation, on the other hand, is a different animal. It is a method of dispute resolution based on cooperation rather than combative litigation. Many jurisdictions and judges encourage voluntary mediation. Some, like the Superior Courts in Indianapolis where I practice, have promulgated rules requiring mediation before certain cases can be tried.
The trend toward requiring mediation as a step in the legal process has become especially popular with divorce courts, particularly in child custody cases. It is notable that, as women have come to dominate Family Law in many jurisdictions within the last twenty years, the transformation from a conflict-based to a cooperative-based system is occurring more rapidly in that area of the law.
In a mediation, the parties and their lawyers meet together to discuss the issues of their case and try to reach an agreement to settle the issues. The discussion is led by a mediator. The mediator is typically an attorney with experience in the relevant area of law, although in family law disputes, the mediator may be a trained family therapist. The mediator will ask each side to tell the mediator about the case -- what are the important facts and issues. That is, the mediator asks each side to tell its version of the truth to the other side and to explain what is at stake in the case. The mediator then asks each side to respond to what the other side has expressed. After the mediator is satisfied that both sides have had the opportunity to try to understand what the other side believes to be the truth of the case and what needs to be done to resolve the outstanding issues, the mediator will separate the parties into different rooms. The mediator will then engage in shuttle diplomacy -- going back and forth trying to get each party to recognize the valid points the other has made and to find a way to settle the case.
If the mediation is successful, a settlement agreement will be drawn up and the parties, their attorneys, and the mediator will execute the agreement confirming that the case has been settled. The case is thus resolved by cooperation. The parties hear the other’s version of truth and claim for justice. The mediator helps the two sides recognize the authenticity of the other’s claims, and together the two sides make an agreement to resolve the claims. Neither side need accept the other's version of the truth. There is no declaration that justice has been done. But the dispute is resolved.
Mediation has a very high success rate. Some mediations are infected with the clients’ selfish egos and/or the attorneys’, and they fail. I have seen parties to mediations yell and scream at each other. I have seen lawyers slam briefcases shut and walk out of mediations. That the system is designed to run on cooperation instead of conflict does not insure that there will be no conflict between the parties during the process. Lawyers and clients don't check their egos at the mediator's door. But there is nothing gained by winning an argument during the mediation. Forcefully making one's point does not necessarily move the process closer to resolution of the dispute. There is no judge in mediation and so no authority awards points or an advantage to the side that most effectively presents its case. The only possible resolution by mediation is through agreement of the disputing parties. Neither side can "win" mediation.
If the parties to a dispute are willing to try mediation, and really try it, it succeeds almost every time. I have seen reports that accord a 90% rate of success to voluntary mediation, and that is what I have experienced in my own practice. The ADRs do allow a judge to sanction a party for refusing to engage in "good faith negotiation" during mediation; but rules can't make, and judges do not yet know how to force, parties to cooperate in resolving their disputes. So, mediation is, for now, an alternative to litigation
When We the People evolve beyond our need to win and adopt cooperation as the best means of dispute resolution, there will be no need of lawyers or courts. Judges and juries will be replaced by facilitators and mediators. In the therapeutic culture of the future, counsel will transform into counselor. In a cooperative system the ideals of truth and justice would be atavistic. Finding truth is not the goal of dispute resolution. Justice is not sought. So, are we ready to let go of the mythos of the legal system that the holy grails of truth and justice are found through a trial by combat? Can’t we all just get along better by cooperatively resolving our disputes?