PROFESSIONALISM CORNER
The Adversary System : A Form of Theology ?
D . CULVER SMITH III
This article originally appeared in the December 2006 issue of the Bulletin .
While testifying on deposition as an expert witness in a lawsuit against a lawyer accused of overzealous representation , I was asked by opposing counsel , “ Do you believe in the adversary system ?” My perhaps irreverent response : “‘ Believe in ’? Do you mean like some sort of theological devotion ?” The questioner replied , “ Well , it is to me .” I then offered the following piece of evasive astuteness : “ I believe that it has its limitations , but no one seems to have produced anything better .”
To “ believe in ” something means “ to have faith , confidence , or trust in ” that something , whether it be a philosophy , one ’ s own abilities , or the Holy Ghost . Regrettably , my confidence in the adversary system as a mechanism for producing the truth is less than unbounded . This sentiment is not mine alone .
Why is this ? The rationale for the adversary system is that the best method of resolving disputes between parties asserting competing or contradicting rights is “ single-minded representation by client-centered advocates who , in their zeal to assist their clients , are motivated to discover facts and elaborately research and argue the law .” 1 The adversary system , thus , depends upon zealous advocacy . Thus , is truth most likely to be revealeth ? As a matter of fact , however , how often is the “ zealous advocate ” more eager to obfuscate the truth , perhaps not with outright dishonesty but with such habitforming toxins as knee-jerk discovery objections , vague or evasive answers to interrogatories , or a litany of deposition objections that border on coaching ? How often is the “ zealous advocate ” more interested in composing a sordid novelette detailing the defendant ’ s dastardly deeds worthy of his being skewered in the court of public opinion than in drafting a complaint containing a “ short and plain statement of the ultimate facts showing the pleader ’ s entitlement to relief ”? How often does the “ zealous advocate ” pose intimidating or embarrassing but irrelevant questions on
deposition ? How often does the “ zealous advocate ” put an intellectually indefensible spin on “ facts ”? This is a search for the truth ?
Zealous representation is a traditional aspiration , but “ it should not be misunderstood to suggest that lawyers are legally required to function with a certain emotion or style of litigating , negotiating , or counseling .” 2 The usual articulation of the principle itself presumes the use of legal and ethical means . 3 Indeed , many of the profession ’ s ethical rules impose limits on zealous representation . A lawyer may not assist a client in the commission of criminal or fraudulent conduct , present false evidence , suborn perjury , disobey court rules or orders , assert in trial personal knowledge of facts in issue , create prejudicial pretrial publicity , communicate with a person represented by a lawyer without that lawyer ’ s consent , or make a false statement of law or fact to a third person . All legal and ethical limits on zealous representation are important because of the legitimate interests of third persons and of the legal system itself .
It falls on us lawyers who work in the adversary system to nurture and protect it , lest its limited ability to deal with obfuscation and mendacity become fatal . This can be done without revealing client confidences . It can be done without leading the opposition by the hand to the promised land . It cannot be done by treating litigation as a game of Texas Hold ’ em . It is our obligation to the adversary system , to the public whose system it is , and to our own profession to set and maintain a culture of reasonableness , candor , and accountability . This is the essence of professionalism . It ultimately may be a matter of selfpreservation . Seasoned lawyers practicing in large firms set the ethical and professional tone for the entire legal community . They set the tone for one another , for their associates , and even for their opponents . Seasoned solo and small-firm practitioners set the tone through the professional networks on which their brethren are so dependent . Whether intentionally or accidentally , seasoned lawyers are mentors each and every day .
PBCBA BAR BULLETIN 18
Eighty-five years ago , Judge Learned Hand said , “ After now some dozen years of experience [ as a judge ], I must say that as a litigant I should dread a lawsuit beyond almost anything else short of sickness and death .” 4 What would Judge Hand say today ? Yes , the adversary system is a form of theology . Some among us need to repent .
1
Charles W . Wolfram , Modern Legal Ethics § 10.3.2 ( 1986 ).
2
Restatement ( Third ) of Law Governing Lawyers § 16 cmt . d ( 2000 ).
3
See R . Reg . Fla . Bar 4-1.3 cmt . ( 2006 ) (“ whatever lawful and ethical measures are required ”).
4
Learned Hand , “ The Deficiencies of Trials to Reach the Heart of the Matter ” ( talk to the Association of the Bar of the City of New York , Nov . 17 , 1921 ), quoted in Geoffrey C . Hazard , Jr ., Susan P . Koniak , et al ., The Law and Ethics of
Lawyering 659 ( 2005 ).
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