Article by Richard M. Markus
The technique of trial advocacy has been developing for centuries. Numerous strategic refinements have been proposed and debated, and skill training has virtually exploded in the last fifteen years. Concerns about the effects of advocacy on societal values are inherent in professional responsibility standards. Restraints are effected through rules for evidence and procedure. However, the underlying framework for the adversary process remains essentially unchanged. That framework is so broadly accepted that we seldom examine its source even when the traditional process is attacked as ineffective or unjust.
For interpersonal dispute resolution, this article seeks to demonstrate that factfinding is necessarily imperfect and that the trial adversary system is artfully structured to expose and explain such imperfection. Trial advocacy thereby facilitates procedures which satisfy the reasonable expectations of litigants and society. Disputants may also present conflicting views about legal rules that apply when factual issues have been decided, but that part of dispute resolution will not be addressed in the limited scope of this article. A substantial part of legal training focuses upon the resolution of purely legal issues. Students are taught analytical methods for resolving policy disputes by evaluating, analogizing and distinguishing policy principles embodied in general legal rules. This article concerns analytical methods for developing and deciding factual disputes. For that process, most judgmental rules are time-honored precepts of common sense that require no reevaluation by factfinders trying to determine "who did what."
Factfinding for interpersonal disagreements is not easily served by the "scientific method" employed to resolve other factual questions. One using that method gathers some data about the matter under scrutiny, forms one or more tentative hypotheses and evaluates those hypotheses by determining whether any additional data conform. Nonconforming data cause abandonment or modification of the tentative hypothesis and perhaps suggest a new working hypothesis. This empirical system of trial and error presumes a relatively unbiased, even disinterested, choice of working suppositions.
Application of the scientific method to controverted positions tends to produce frustration and dissatisfaction for litigants who begin with a fixed bias. The need for objective data by which to test hypotheses may not be fully met by the litigants' self-serving efforts to develop information favorable to their respective positions. Therefore, a method of independent inquiry is required, a search for data by the tribunal itself, which is sometimes labeled the "inquiry" or the "inquisitorial" system.
When the tribunal gives weight to its own prejudgment bias for expediency and economy, or its developed attachment for a particular thesis before all data have been evaluated, the tribunal, to that extent, becomes an advocate. The scientific method, adapted as the legal inquisitorial system, then loses its ability to test hypotheses fairly by selecting non-random data for comparison or by evaluating that comparison with an advocate's interpretation. To the extent that the tribunal adopts any prejudgment preference, the inquisitorial system fails in its goal. As the following discussion will suggest, human motivations supporting success in scientific or inquisitorial investigations seem weaker than motivations for success in an adversarial system when the subject is interpersonal conflict.
About the Author
Richard M. Markus. Ohio Appeals Court Judge; Chairman of the Board, National Institute for Trial Advocacy; Visiting Professor, Harvard Law School.
Citation
56 Tul. L. Rev. 95 (1981)