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 procedural approach in most civil law jurisdictions.
In an inquisitorial system, a judge is involved in the preparation of evidence along with the police and in how the various parties are to present their case at the trial. The judge questions witnesses in depth and can even call witnesses to appear while prosecution and defence parties can ask follow up questions. The judge plays the central role in finding the truth and all the evidence that either proves the innocence or guilt of the accused before the court. The judge takes on the role of prosecutor and judge in the inquisitorial system. Some other major distinctions is that there are no jury trials in an inquisitorial system and a judge can compel an accused to make statements and answer questions. This differs dramatically from the common law and adversarial right not to take the stand in one's own defence. The adversarial system is employed by most nations that deal with the common law.
“likely to encourage an adversarial culture”
I assume Lord Woolf’s statement was his prediction rather than his opinion in the fact the culture is that of a battlefield because of the phenomenal rise in the number of court cases due to population explosion, greater public awareness of rights and the market economy. Since Judiciaries all over the world have a common set of roles and responsibilities, their issues of concern in this context are also similar. There has been a global concern and effort to face the challenge of delayed justice and to ensure cases are dealt with as quick as possible. However, these attempts have faced tough resistance in countries of common law jurisdiction of which we in Scotland are an example. The main way of resolving dispute continues to be adversarial i.e. a judge is the umpire between two rival parties and they are allowed a free hand to file their written statements, to give evidence, and basically control proceedings without effective control from the judge. This has led to an adversarial culture which affects the behaviour patterns of the parties to an extent that they become combatants in what has been described as an arena and hence the expression of the battlefield in Lord Woolf’s quote. It has also changed the public’s confidence in the system itself. Even in the U.K which laid the foundations of the common law jurisdiction, there has been a wide spread dismay over court delays. In many ways the process itself has given rise to the culture but during the time of Lord Woolf’s writing there was no evidence as far as I could see that suggests that this would have been the case. “Just as the culture of the client population affects strategic position, so does the professional culture of the lawyers” 4
”too often seen as a battlefield where no rules apply”
I don’t understand what is wrong with the litigation process being seen as a battlefield? as it has been referred to in the past as the arena and the gladiators that fight in it battling it out for victory. However to say that no rules apply is strange to say the least from a person in Lord Woolf’s position. Of course rules apply even at his time of writing and more so at present. What he is saying is more must be done to change the process as it stood back then. “The reforms were liked for providing a clearer structure, greater openness and making settlements easier to achieve” 5.
4 Marc Galanter Why the ”Haves” Come Out Ahead: Speculations on the Limits of Legal Change P27
5 More Civil Justice? The impact of the Woolf reforms on pre-action behaviour
As the system stands today must have been a big difference to the way it was during the time of writing, especially to settlement process as these days after Lord Woolf’s report the changes made have been significant. First, the court is under a duty to encourage the use of alternative dispute
resolution procedures, such as mediation. Part 36 of the Civil Procedure Rules For the first time, claimants have the opportunity to make formal written offers to settle a case that carry penalties
if they are refused. Thirdly, the reforms attempt to preserve litigation as a last resort which was clearest in personal injury cases, where insurers estimated the reduction at a third. Finally, the reforms are intended to encourage a less adversarial, more settlement-minded culture. “Change is occurring but it has been a long time coming and lately it seems to concentrate more on resource management than justice and fairness” 6
“questions of expense, delay, compromise and fairness may only have low priority”
One of the reasons for the reforms was to reduce costs to the litigant and to the Court Service. This caused the demise of the civil legal aid system. By 2006 Lord Justice Brooke reported that the number of civil claims in England and Wales had fallen 20%. Lord Justice Brooke said that “the reforms had been successful but the strategy for funding access to civil justice had not” 7.The reform was to minimize delays as much as possible and to promote more summary cases. Whether the reform has actually affected costs id debatable from different points of view for example lawyers used to pro-long a case as much as possible to financially benefit from legal aid by getting their client to plead not guilty but now legal aid has been reviewed and now lawyers get the same whether the client pleads guilty or not. Then again in a criminal or civil case ”rationally each would prefer a low cost solution but each knows that the more she spends, the greater will be her chance of victory. Moreover, what one party spends will influence the spending decision of the other, with an obvious spiraling effect on legal costs” 8 . Compromise , fairness or ‘bargaining in the shadow of the law’ can be seen to be necessary for various reasons. First is that settlement is necessary to protect the court from a crushing overload of cases, so reducing backlog and delay whilst saving the court's resources for other more high priority cases. Also a trial might lead to results that are unacceptable and affect the court or the system.
Conclusion
”Lord Woolf believes that in order to prevent litigious excesses we need to impose judicial control on litigation” 9
I think Lord Woolf’s statement about the justice system was a fitting description at the time because at that junction he wanted to impose various measures to combat the excesses that were happening in the courts. Today I don’t think that statement in its entirety applies to the system. Yes I think it is still seen in many ways as a battlefield but due to the many reforms that have been put in place it is a lot different than it was back then. Today different rules and in ways a different game.
6 Educating lawyers for a less adversarial system (federation press) P29
7 Civil Litigation and the expert witness P1
8 Cooter and Rubinfeld 1989, pp 1078-82; 1994, ch 8 as per some reflections on the woolf report by Anthony Ogus
9A.a.s. Zuckerman – Lord Woolfs access to justice plus CA Change
The new reforms were the small claims limit should be increased to £5,000 but personal injury cases up to £1,000 will remain within the small claims procedure. The Fast Track and Multi-Track will be introduced, to support the principle and operation of judicial case management and the fast Track limit should be £15,000. The Fast Track will be supported by a fixed costs regime. The civil court fee structure will be revised to complement the new procedures, improving fairness to litigants. Lord Irvine said he believed the reforms would successfully tackle the unacceptable levels of delay, complexity and cost attached to the current system. They would also promote certainty and fairness for litigants and they were introduced on 26 April 1999.
“For policymakers in countries in social transition the criminal justice process in England and Wales is often viewed as a model”10
As highlighted above I think Lord Woolfs statement was fitting back when it was written but would not be an appropriate description today of the current system due to the changes implemented.
Methodology
The essential reading for the essay provided a good start and led me to other articles used for this essay. Reading in the handouts also proved useful and invaluable info gained.
10M McConville and G Wilson the handbook of the criminal justice process. (Oxford: Oxford University Press 2002)