The scheme of American jurisprudence wherein a judge or jury renders a decision in a controversy between or among parties who assert contradictory positions during a judicial examination such as a trial, hearing, or other adjudication. U.S. courtrooms have often been compared to battlefields or playing fields. The adversary system by which legal disputes are settled in the United States promotes the idea that legal controversies are battles or contests to be fought and won using all available resources.
The contemporary Anglo-American adversary system has gradually evolved, over several hundred years. Early English jury trials were unstructured proceedings in which the judge might act as inquisitor, or even PROSECUTOR, as well as fact finder. Criminal defendants were not allowed to have counsel, to call WITNESSES, to conduct CROSS-EXAMINATION, or to offer affirmative defenses. All types of evidence were allowed, and juries, although supposedly neutral and passive, were actually highly influenced by the judge's remarks and instructions. In fact, before 1670 jurors could be fined or jailed for refusing to follow a judge's directions.
The late 1600s saw the advent of a more modern adversarial system in England and its American colonies. Juries took a more neutral stance, and appellate review, previously unavailable, became possible in some cases. By the eighteenth century, juries assumed an even more autonomous position as they began functioning as a restraint on governmental and judicial abuse and corruption. The Framers of the Constitution recognized the importance of the jury trial in a free society by specifically establishing it in the SIXTH AMENDMENT as a right in criminal prosecutions. The Eight Amendment also established the right to a jury in noncriminal cases: “In Suits at COMMON LAW, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.”
The independent judiciary was somewhat slower in developing. Before the 1800s, English judges were still biased by their ties with the Crown, and U.S. judges were often politically partisan. U.S. Supreme Court Chief Justice JOHN MARSHALL, who served from 1801 to 1835, established the preeminence and independence of the high court with his opinion in MARBURY V. MADISON, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803). Marbury established “the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” (Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401, 3 L. Ed. 2d 5 ). By the early 1800s, attorneys had risen to prominence as advocates and presenters of evidence. Procedural and evidentiary rules were developed, and they turned the focus of LITIGATION away from arguments on minute points of law and toward the RESOLUTION of disputes. The basic parameters of the United States' modern legal system had been established.
In the Anglo-American adversary system, the PARTIES to a dispute, or their advocates, square off against each other and assume roles that are strictly separate and distinct from that of the decision maker, usually a judge or jury. The decision maker is expected to be objective and free from bias. Rooted in the ideals of the American Revolution, the modern adversary system reflects the conviction that everyone is entitled to a DAY IN COURT before a free, impartial, and independent judge. Adversary theory holds that requiring each side to develop and to present its own proofs and arguments is the surest way to uncover the information that will enable the judge or jury to resolve the conflict.
In an adversary system, the judge or jury is a neutral and passive fact finder, dispassionately examining the evidence presented by the parties with the objective of resolving the dispute between them. The fact finder must remain uninvolved in the presentation of arguments so as to avoid reaching a premature decision. The Anglo-American requirement of an impartial and passive fact finder contrasts with the requirements of other legal systems. For example, most European countries employ the INQUISITORIAL SYSTEM, in which a judge investigates the facts, interviews witnesses, and renders a decision. Juries are not favored in an inquisitorial court, and the disputants are minimally involved in the fact-finding process.
The main emphasis in a European court is the search for truth, whereas in an Anglo-American courtroom, truth is ancillary to the goal of reaching the fairest resolution of the dispute. It has been suggested that the inquisitorial system, with its goal of finding the truth, is a more just and equitable legal system. However, proponents of the adversary system maintain that the truth is most likely to emerge after all sides of a controversy are vigorously presented. They also point out that the inquisitorial system has its own deficiencies, including abuse and corruption. European judges must assume all roles in a trial, including those of fact finder, evidence gatherer, interrogator, and decision maker.
Because of these sometimes conflicting roles, European judges might tend to prejudge a case in an effort to organize and dispose of it. Inquisitorial courts are far less sensitive to individual rights than are adversarial courts, and inquisitorial judges, who are government bureaucrats (rather than part of an independent judicial branch), might identify more with the government than with the parties. Critics of the inquisitorial system argue that it provides little, if any, check on government excess and that invites corruption, BRIBERY, and ABUSE OF POWER.
The parties to an Anglo-American lawsuit are responsible for gathering and producing all of the evidence in the case. This challenge forces them to develop their arguments and to present their most compelling evidence, and it also preserves the neutrality and passivity of the fact finder. The adversary process is governed by strict rules of evidence and procedure that allow both sides equal opportunity to argue their cases. These rules also help to ensure that the decision is based solely on the evidence presented. The structure of this legal system naturally encourages zealous advocacy by lawyers on behalf of their clients, but the code of ethics governing the conduct of lawyers is designed to curb the tendency to attempt to win by any means.
The adversary system has staunch defenders as well as severe critics. The image of the courtroom as a battleground or playing field where contestants vie for victory is evident in the news media's preoccupation with who is “winning” or “losing” or “scoring points” in such highly visible cases as the 1995 trial of O. J. SIMPSON, an actor, sportscaster, and former professional football player who was tried for killing his former wife, Nicole Brown Simpson, and her friend Ronald Goldman.
The emphasis on “winning at all costs” without commensurate concern for truth-seeking dismays some U.S. citizens, and a growing number are demanding reforms in the legal system. During the 1980s and 1990s, the use of alternative forms of dispute resolution such as MEDIATION and ARBITRATION grew dramatically. However, defenders of the adversary system note that these alternatives have been used all along, in the form of SETTLEMENT conferences, minitrials, and summary jury trials, and that the vast majority of lawsuits are already settled before the parties ever appear in court.
When a dispute cannot be resolved without a trial, the adversary system is the established method of adjudication in the United States. Indeed, the organized bar remains committed to the notion that vigorous advocacy by both sides of a legal controversy ultimately leads the judge or jury to the facts needed for a fair resolution and that it is the process that is best calculated to elicit the truth and to protect individual rights. Although many concede that the adversary system is imperfect and that it may be subject to abuse and manipulation, the majority still believe that, by giving all parties and their advocates the opportunity to present evidence and arguments before an impartial judge, it promotes a free and pluralistic society with the best available means of settling disputes.
Alternative Dispute Resolution; Civil Law; Common Law; Inquisitorial System; Judge; Judiciary; Jury.
Burger, Warren E. 1993. “Essays: The State of the Adversary System 1993.” Valparaiso Univ. Law Review 27 (spring).
Doyle, Stephen, and Roger Haydock. 1991. Without the Punches: Resolving Disputes without Litigation. Minneapolis: Equilaw.
Kagan, Robert A. 2003. Adversarial Legalism: The American Way of Law. Cambridge, MA: Harvard Univ. Press.
Landsman, Stephan. 1984. The Adversary System: A Description and Defense. Washington, D.C.: American Institute for Public Policy Research.
Readings on Adversarial Justice: The American Approach to Adjudication. Eagan, MN: West.
Olson, Walter K. 1991. The Litigation Explosion. New York: Truman Talley.