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Adversary Paradigm of Litigation

U.S.District Judge, Hon. Jed Rakoff in a recent speech at USC Law School (see Why Innocent People Plead Guilty, 4/18/2014, online article states:

“We have hundreds, or thousands, or even tens of thousands of innocent people who are in prison, right now, for crimes they never committed because they were coerced into pleading guilty.”.   

Plea bargaining is prevalent because a jury trial is, essentially, a throw of the dice.

See also c. Ronald Huff, ed. Wrongful Convictions (Temple U.Pr, 2008).

We see an epidemic of wrongful convictions.  Just from the Innocence Project web site we see some 330 exonerations based on DNA evidence, such as the following:

The National Registry of Exonerations (a project of the University of Michigan Law School) lists some 1,700 exonerations.  The rise of an “Actual Innocence Doctrine” movement highlights the utter bankruptcy of the current jury system (see for example the NY Times article: Hope for the Wrongfully Convicted (11-22-2009) online).

Clearly, our adversary litigation system does not work.

Our adversary litigation system is a gladiatorial contest – a throwback to the ancient “trial by combat” (known as “ trial by wager of battel” introduced to England by William the Conqueror). Today it has evolved into something comparable to a chess game. The winner is the one who can afford a more cunning lawyer. Why, in the 21st century, are we stuck with such a primitive system? Because it makes money for the lawyer industry.

Although US Supreme Court Justice Felix Frankfurter has said that “Litigation is the pursuit of practical ends, not a game of chess.” (Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 69 (1941)) the consensus of opinion seems to be otherwise. For example, a large body of litigation literature – just as chess literature – deals with strategy and tactics. A search of the Los Angeles County Law Library catalog for titles having the terms “Litigation” and [“Strategy” or “Tactics”] results in 159 title entries including terms such as the following: “Basic trial tactics”; “Questioning techniques and tactics”; “Eyewitness testimony : strategies and tactics”; “Pretrial discovery : strategy & tactics”; “winning psychological strategies and tactics for lawyers”; “the art of jury persuasion”; “Successful trial tactics”; “Winning jury trials : trial tactics”; etc., etc.

Tricks, lies, and gimmicks are lawyers’ tools to try to win the game. They have appellate court approval to employ even frivolous tactics (see In re Kun (1989) 868 F.2d 1069 “ . . . a party may combine sound and ultimately successful defenses with frivolous ones designed solely to harass the opposing party.”).

Litigation is a contest and the judge is a mere umpire. Chief Justice Roberts of the United States Supreme Court proclaimed the following:

“Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules . . . .” (Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States Before the S. Comm. on the Judiciary, 109th Cong. 55 (2005) (statement of John G. Roberts, Jr., Nominee to be Chief Justice of the United States).

Capricious decisions inevitably result from jury trials. Examples abound in the literature. See, for example, pages throughout the following books: Kressel, Stack and Sway: the New Science of Jury Consulting (Westview Pr, 2004); Wishman, Anatomy of a Jury (Times Bks, 1986); Abramson, We the Jury (Harvard U.Pr., 1994). This is just to name a few. The capriciousness of the jury has been recognized throughout its history. The observations of M. Le Bon, in the chapter “Criminal Juries” of his classic, The Crowd: A Study of the Popular Mind (Paris, France, 1858 – online at http://www.gutenberg.org/cache/epub/445/pg445.html) sound the same as observations made in “science of jury consulting” texts of today:

“Like all crowds, juries are very strongly impressed by sentimental considerations, and very slightly by argument. . . .’It is sufficient that a woman should be of agreeable appearance,’ says M. des Glajeux, ‘to win the benevolence of the jury.’ . . . The chief concern of a good counsel should be to work upon the feelings of the jury, and, as with all crowds, to argue but little, or only to employ rudimentary modes of reasoning.”.

Unfortunately, momentous decisions are based on theatrics of lawyers. Remember the jingle “‘If it doesn’t fit, you must acquit,’ [which] became Cochran’s mantra . . .” (CNN Report on OJ Simpson murder trial (September 28, 1995) online at http://www.cnn.com/US/OJ/daily/9-27/8pm/ )?

Decisions that may deprive someone of life, liberty or property should be taken seriously. However, in jury trials they are made not on the basis of evidence so much as on the basis of prejudices of randomly chosen jurors.

“In the eyes of an increasing number of Americans, who serves on the jury matters at least as much as what the jurors see and hear at trial. One critic of the jury system harshly complains, ‘No one in his senses would entrust an important decision in his life–where to live, what job to apply for, whether to have an operation, what shares to buy—to a random sample of twelve people, and yet we place our system of criminal justice in their hands. In some districts, no doubt, the jurors are above average, but in others they are stupid, feckless, illiterate and felonious in thought and undetected deed’. . . .wisdom . . . in the famous admonition attributed to defense attorney Clarence Darrow: ‘Never forget, almost every case has been won or lost when the jury is sworn.’ . . . Albert Osborn . . . lamented in 1937 that “. . . the most important work of certain attorneys in all criminal cases . . . is not the presentation of evidence, but the finding in advance of only one or two jurors of the kind they desire. In many . . . trials, it is not twelve men who defeat justice, but only one or two men.’” (Kressel, Stack & Sway, supra, at p. 7 – 8).