In this essay I am going to discuss Lord Woolfs statement in his interim report to the Lord Chancellor where he finds that the adversarial process. may only have low priority.

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M9115 Legal Process – Essay Question

In this essay I am going to discuss Lord Woolf’s statement in his interim report to the Lord Chancellor where he finds that “the adversarial process…. may only have low priority. “1 

It is fair to start with the adversarial process as a whole before criticizing the comment above and discussing how true in my opinion it is.

the adversarial process

Broadly speaking the adversarial system can and has been described as the following “An adversarial system is by nature and design a zero sum game. There is no win-win. There can’t be”2 it is a type of legal system that is implemented within a jurisdiction. The United States employs the adversarial system within its area of sovereignty. This kind of system distinguishes parties that participate in a process of litigation, whether it is criminal or civil law. The parties involved are the prosecution, the defense, and the judge or jury.

The adversarial system gives the lawyers and their clients a great deal of control over the process. If the litigant wishes to make no use of a lawyer, it may be the litigant himself who becomes his own advocate. Each advocate then presents arguments in favour of his side to a judge or jury. The judge is passive and that his main role is to be the umpire which can be described in the metaphor “Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules . . . .”3 and after applying the rules, will lead to one side being victorious  or the jury then has the obligation to determine the truth of the matter from the arguments presented by the advocate and upon the presentation of evidence.

The advantages of the adversarial system include.

  • the judge reserves comment until all evidence from both parties are heard.
  • this makes the judge appear more neutral since judgement must be reserved until all the evidence is heard
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The disadvantages of the adversarial system include

  • the finding of evidence rests on the resources of the two parties which may be unequal
  • parties only provide evidence favourable to their arguments

1 Lord Woolf: Access to Justice; Interim Report to the Lord Chancellor on the Civil Justice System of England and Wales (1995) HMSO, London, ch 3, para 4

2 Eric K Johnston – Utah Divorce resource

3 statement of John G.Roberts, Jr., Nominee to be Chief Justice of the United States

This kind of legal system is contrasted to an inquisitorial system. The inquisitorial system is the common ...

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