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The Adversary System

    The law of procedure can be divided into criminal and civil. Civil procedure is the body of rules by which the parties in civil litigation use the court to settle disputes.

    Generally, the party bringing the lawsuit to the court is called the plaintiff, and the party against whom the action is brought is called the defendant. On appeal, the appealing party is usually referred to as appellant, and the winning party at trial is called the appellee.

    In most states and in the federal courts, all persons may join in one lawsuit as plaintiffs if the causes of action arise out of the same transaction or series of transactions and involve common questions of law or fact. In addition, the plaintiff may join as defendants all persons who are necessary to a complete determination or settlement of the issues. if a defendant alleges that a complete determination of a controversy cannot be made without other parties, that defendant may bring in new third parties as third-party defendants. The procedure is usually followed when someone is liable to a defendant who, in turn, is liable to the plaintiff.

    A distinctive element of the Anglo-American judicial procedure is the adversary system, which is the characteristic form of trial procedure in common law countries, in civil as well as criminal cases. Its essential feature is that a decision is made by judge, or judge with jury, who finds the facts and applies the law from submissions made by partisan advocates on behalf of the parties. In this system of trial procedure, the responsibility for beginning suit, for shaping the issues, and for producing evidence rests almost entirely upon the parties to the controversy. The court takes almost no active part. It does not do its own investigating. It rarely even asks a question. Most often it is only responsible for guiding the proceeding according to certain procedural rules and for making decisions on questions of law that arise. This system is to be contrasted with what is generally called the inquisitorial system, which is used in countries of the civil law tradition such as France and Germany. In the inquisitorial system of trial, the judge applies the law and finds the facts by his own active investigation and inquiries at trial.

    Under the adversary system, the scope of lawyers’ power and responsibility is wide. It is the lawyer who makes the initial and usually final decisions as to choice of court, size of claim, nature of claim, parties, extent and kind of pre-trial investigation, mode of trial ( whether jury or non-jury ), settlement offers, extent and kind of proof, style of presentation and argument, and, within limits, speed and vigor of presentation. Judges are called on to intervene only occasionally and then briefly, to ensure that all the procedural safeguards are met and essential fairness is achieved.

    The reasons for the prevalence of the adversary system are manifold. First, it is believed that a truer decision will be reached as a result of a contest directed by interested parties. Second, since the parties have a direct interest in the resolution of the dispute, they should bear the burden of the time and energy required. Third, setting up sides reduces the determination of the suit to some yes-or-no questions, which are easier for an unbiased judge. Fourth, the human instinct to do battle is better satisfied by a contest that is very much in the hands of the parties.

    Contrasted with the methods of scientific or historical research, this system of finding answers to legal controversies seems sometimes unsatisfactory. When one reflects on the fact that under the adversary system victory often turns on factors other than the true merits of the case, there is reason to be skeptical about it. Critics of the adversary system point out that it tends to reduce litigation to a costly game, in which the lawyers become the principal players and the outcome will turn on their skills rather than on the true merits of the case. In recent times there has been a trend toward increasing the affirmative or active functions of the court that reflects the larger trend away from the sporing or game theory of litigation. Nonetheless, it cannot be questioned that in the United States the primary responsibility and control over almost all phases of the judicial process continue to reside in the parties. Full understanding of the American legal procedure will require our constant attention to the existence of the adversary system as well as critical analysis of its shortcomings.

 

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