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LAW - the adversarial free zone in courtroom battles
Preamble
When one expresses an opinion about an aspect of law, which one thinks is obvious, and when one is unexpectedly rebuffed by a very experienced solicitor with an emphatic, 'I disagree,' it is wise to review one's opinion. The occasion of this rebuff was a meeting attended by arbitrators and expert witnesses from a range of professions. In addition to the solicitor's simple statement, I was surprised to discover that most of those present shared the solicitor's opinion and they also in turn stated that they disagreed with my opinion. Indeed, I did not even have the luxury of one or two of those at the meeting coming up to me afterwards to say that they did agree with me, but that coming off the fence publicly was not always the best thing to do.
Such occasions clearly serve to focus the mind so I decided to return to basics and reconsider my opinion. Having done so, I am quite satisfied that my opinion was correct and I am setting down my reasoning in this article in order to encourage wider discussion.
What did I state which gave rise to the opposition?
I stated that the process of seeking to arrive at the correct law and its application is not an adversarial matter in a trial. Further, it is not the duty of the judge to decide the applicable law and its application based upon a preference of the contentions submitted on behalf of the parties.
First, the word 'adversarial'
The word 'adversarial' is one of those words which seems to have been in the English language for ever, but it is of recent origin according to the Oxford English Dictionary (OED). The earliest judicial reference to the word 'adversarial' in the OED is noted as 1972. The reference was to an extract from the opinion of the late Lord Diplock in the case of Jones v Secretary of State [1972] 1 All ER 185 at f. There was an earlier reference which was an extract from The Journal of Psychology of January 12, 1970. Some years ago, the Deputy Editor of the OED said that he would be very pleased to have an earlier reference if one existed (see my article, 'The adversarial myth', New Law Journal, May 19, 1995, p. 736, where the request was relayed to readers of that journal). In fact, the Editors of the OED are beginning to work on a revision of the 'A' section of the dictionary so I am sure that they would be particularly keen at this time to have a note of any earlier references on UK useage.
As a matter of further interest, the OED have advised me that there are some earlier references which have been discovered in the US. The Editor of Modern Legal Usage, Brian A. Garner, an Attorney in the US, has noted the use of 'adversarial' in some cases from 1926 onwards. It seems that Brian Garner's belief is that the word 'adversarial' connotes animosity whereas the word 'adversary' is neutral. As a personal view, I find it difficult to draw that distinction. Nevertheless, Brain Garner has uncovered some earlier references to the word 'adversarial'. Perhaps you may also be able to help the OED by finding an earlier reference to the word 'adversarial'.
It is often said that even if the word 'adversarial' is a relatively new word, the word 'adversary' has a long history in the context of legal proceedings. That must be true, however, the observation is not much help in how one views the matter of procedure. The word 'adversary' is a general word which describes all those who are in opposition over some matter and, of course, that is not confined to our legal system. Indeed, Jean Dormat (1625-1696), in writing about the parties in the context of the French Civil Law, used the expression 'adversary' often.
This, at least, is according to the translation of his work, The Civil Law in its Natural Order, by Luther S. Cushing, published by Little Brown & Co, 1853, vol. I. For example, in noting the concept of dealing with adversaries in the Civil Law System, he wrote, 'He who advances a fact ought to prove it'. This, he said, '... is the reason why it is commonly said that it is incumbent on the plaintiff to prove his fact. (para. 2006, p.795)'.
The point is that some things are obvious when one is dealing with parties in dispute, namely: they are adversaries, with one side presenting some claim and the other side rejecting that claim; and, of course, they are so in whatever legal system is applicable. Further, one can also say that it is certain that it would be difficult if the accused had to prove his innocence.
The procedure related to basic facts
It is now customary to use the word 'adversarial' generally to describe the procedure for opposing parties who are in pursuit of their interests in legal contests. For practical purposes, in litigation we use it to describe the activities in a trial whereby the evidence of the claimant and the rejection of it by the defendant are presented to the judge in such a way that the judge can decide the facts of the case being argued. The exercise taking place is about persuading the judge to accept information which cannot be proven. If the judge accepts one position or another, it means that the judge has sought to discharge a duty to decide uncertainties on the basis of a balance of probability. Thus, the 'adversarial process' is simply the name given to the development of the contentious position of the parties being played out in front of the judge.
In the process, either the parties are honestly opposed about matters of fact; dishonestly opposed about matters of fact; or they are in agreement on matters of fact. The cynic may say that all three categories exist in most litigation.
If the parties are honestly opposed on matters of fact, then that is what the process is all about because one or other of the parties will be disabused of their wrong thinking which is honestly held.
If one or other of the parties, or both, are dishonestly opposed on matters of fact, then they are in breach of their solemn oath to tell the truth, the whole truth and nothing but the truth.
If the parties are agreed upon matters of fact, it may be the case that both parties are incorrect or ill-founded in their agreement, but that does not matter too much to the judge providing the judge has no concern that such agreement is designed to bring about some fraudulent outcome through the channel of litigation.
Save for facts upon which the parties are agreed, or upon facts where there can be no doubt, it is said that an adversarial procedure is the best way of discovering as near to the truth as is possible on all that remains disputed. In particular, in addition to disabusing the parties of their honestly held but erroneous beliefs, it is said to be a procedure which, by the skills of the advocate, can cut through the contemptuous attitude of parties who breach their solemn oath and lie and cheat.
The procedure related to opinion evidence
Now comes a point in the proceedings where a big question mark starts to hang over the concept of adversarial proceedings.
Once the parties have presented the undeniable facts that have been proved and they have also presented those facts [so called] that have to be decided on the basis of a balance of probability, these facts, together with any agreed facts, will form the basis for the judge to draw conclusions about the facts in dispute. However, it is often the case that the judge may be dependent upon the opinion of experts before a decision can be made.
Like all other witnesses, experts who give evidence are subject to a solemn oath to tell the truth, the whole truth and nothing but the truth. Thus, if an expert witness sees his or her role as being partisan in an adversarial procedure, where the task is to support the client who pays the fee, such an expert would be in breach of the solemn oath and also the duty to help the court.
I do not suppose that any of the readers would disagree with that, but it is not very long ago that Lord Woolf in his Report on Access to Justice 1996 expressed much concern about the situation. Selecting a passage at random [there is much to choose from], in one passage he states, 'The purpose of the adversarial system is to achieve just results. All too often it is used by one party or the other to achieve something which is inconsistent with justice by taking advantage of the other side's lack of resources or ignorance of relevant facts or opinions. Expert evidence is one of the principal weapons used by litigators who adopt this approach.... (para. 7, p. 138).'
I have no doubt that many experts can relate experiences of solicitors who have pressed for an opinion that supports their client's case. Hopefully, the results of Lord Woolf's reforms have helped to change the attitudes, but the fact is that no reforms were necessary for anyone who honoured the solemn oath to the court; and not many reforms control those who don't.
However, for the purpose of this article, the expert, even the sole expert, is subject to examination by the parties' advocates and the judge so it may be said that the expert witness is as much subject to the adversarial procedure as any other witness.
The procedure related to the law
Is the court procedure for seeking to arrive at the correct law and its application the same as that used for reaching a decision on the facts? In short, is the process of seeking to arrive at the correct law and its application an adversarial matter in a trial? Further, is it the duty of the judge to decide the applicable law and its application based upon a preference of the contentions submitted on behalf of the parties?
As would be noted from the beginning of this article, my answer would be, 'No.'? First, let us consider whether or not the actions of the advocates representing the parties are subject to an adversarial procedure.
In the first place, we do not see any procedure whereby the advocates representing the parties are subject to some process of examining each other and cross-examining each other. They may be questioned by the judge; they may raise issues with each other in front of the judge; but there is no concept at all of an adversarial procedure taking place. Moreover, if the advocates, in their minds, considered that their actions in addressing the court on the law were part of an adversarial procedure and, accordingly, if they expressed biased statements about the authorities relevant to the case before the court, then they would breach the code of conduct for advocates.
In this context, I do not think that I need to give any reference for an observation which states that advocates representing the parties have a duty to their clients, but they must not seek to win by whatever means. This is because they also owe a duty to the court and the administration of justice. Advocates must not mislead the court or allow the judge to take what they know to be a bad point in their favour. They must cite all relevant law, whether for or against their case.
So, in that regulated way, the advocates are obliged to address the judge on the law. The judge, no doubt, listens very carefully to what the advocates say, but does that bind the judge in any way to choose between them?
As to that, I am hoping, from a judge's viewpoint, that the matter can be disposed of quite simply by referring to the words of the late Lord Roskill (at the time Lord Justice Roskill) who said, in giving evidence to the Benson Committee (1979), 'No-one without judicial experience can perhaps fully appreciate how much a judge relies upon the advocates before him in arriving at what he believes to be the correct decision,'? and he added, 'even so, the judge is free to adopt his own view of the law; he is not bound to choose between the contentions presented to him (Cmnd. 7648, HMSO, October 1979, Vol. !, para. 17.10).'
Of course, Lord Roskill, was simply passing on the obvious. He was speaking in the same mode as Lord Diplock in the House of Lord's opinion is the case of Bahamas Trust Co v. Threadgold [1974] 3 All ER, 884, e-f, where Lord Diplock stated, '.... The reason is that the construction of a written document is a question of law. It is for the judge to decide for himself what the law is, not to accept it from any or even all of the parties to the suit; having so decided it is his duty to apply it to the facts of the case. He would be acting contrary to his judicial oath if he were to determine the case by applying what the parties conceived to be the law, if in his own opinion it was erroneous.'
Lord Diplock's words also crop up in various other cases, in particular in some planning appeals and the like. For example, in a recent case [I do not have a reference yet] in Her Majesty's Court of Appeal in Northern Ireland, in the matter of an application by Belfast Chamber of Trade and Commerce, Belfast City Council and North Down Borough Council for Judicial Review, where Carswell LCJ, in referring Lord Diplock's opinion, stated, '... the decision does not infringe the basic principle that matters of construction of documents are matters of law, responsibility for which must remain with the courts.' The judicial oath to which Lord Diplock referred is; '.... To do right and justice to all manner of people according to the laws and usages of this realm without fear or favour, affection or ill will'.
Conclusion
I shall start winding up by emphasizing the point that, in a trial, it is not even appropriate for an advocate to express a personal opinion on a point of law, unless invited by the court to do so; in stead, an advocate must ensure that the court is informed of all relevant decisions and legislative provisions of which he or she is aware whether the effect is favourable or unfavourable towards the contention which is being argued. This concept does not seem to square up with an adversarial procedure in any way at all.
I believe that I have demonstrated that anyone who argues that addressing the judge on the law is an adversarial procedure is incorrect. I believe also that I have demonstrated by adequate references that the judge in a trial does not have to decide the applicable law and its application based upon a preference of the contentions submitted on behalf of the parties.
Francis Miller
Editor's comment - I admit that I was one that disagreed with Francis. My view remains that arbitrators and adjudicators need to be very careful when coming to a view on the law that is different than that canvassed by either party. The obvious problems associated with Fox v Welfair come to mind. At the very least the rules of natural justice (each side knowing the case they have to answer) requires that before doing so the arbitrator should invite further submissions from the Parties. I would welcome others views on this important topic.