PBCBA BAR BULLETINS PBCBA Bulletin - February 2020 | Page 18

PROFESSIONALISM CORNER The Adversary System: A Form of Theology? CULVER "SKIP" SMITH III While testifying on deposition recently 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. In matter of fact, however, how often is the “zealous advocate” more eager to obfuscate the truth, perhaps not with outright dishonesty but with such habit-forming 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”? 2 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.” 3 The usual articulation of the principle itself presumes the use of legal and ethical means. 4 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. a litigant I should dread a lawsuit beyond almost anything else short of sickness and death.” 5 What would Judge Hand say today? Yes, the adversary system is a form of theology. Some among us need to repent. Charles W. Wolfram, Modern Legal Ethics § 10.3.2 (1986). 1 2 See Fla. R. Civ. P. 1.110(b). 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). 5 D. Culver “Skip” Smith III focuses his practice on the ethical and professional It falls on us lawyers who work in the responsibilities of lawyers. He maintains adversary system to nurture and protect an office in West Palm Beach and can be reached at 561-598-6800 or at . 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 self-preservation. 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. Eighty-five years ago, Judge Learned Hand said, “After now some dozen years of experience [as a judge], I must say that as PBCBA BAR BULLETIN 18