2277 Repeat - On adversarial Law

Friday, February 20, 2009

I found this old entry from December of 2005. I like it. I decided to repeat it.

#498 Adversarial Law

Neighbor Nan and I got to talking about mediated divorces yesterday. I complained that as soon as you get two lawyers involved, if things weren't nasty before, they get nasty real quick, because the lawyers aren't really fighting for their clients, they're just fighting to score against each other. Nan said that in Austria, a divorce is handled by one lawyer, who advises both parties on what is equitable, fair, and legal.

That isn't allowed in the US.

I've known a lot of lawyers, and I've found that when you find one who likes to go to court, who looks forward to the fray, he or she is usually less interested in truth and justice, and more interested in simply winning. Regardless of what's right.

I used to laugh at The Company lawyers. When they smelled conflict, you could almost hear the swords rattling against the shields. And once they mounted up, they weren't going to let anything like compromise or offers or new information deter them from battle, from that taste of blood and victory.

In France, according to Jay and his father at least, the object of the courts is to find the truth. Cases are presided over by a panel of judges, who direct the research and investigation, and choose, summon, and question the witnesses. They want the whole truth, not someone's filtered and slanted version of it, and they keep probing until they are satisfied they've got it. Contrast this with American courts, where the object often seems to be to prevent the whole truth from coming out, to pit one attorney's skill at obfuscation and blocking against another's, winner take all.

This means that in the US, the outcome of family, civil, and criminal cases is often determined not by the truth and law, but by whose lawyer could dance faster. Which actually translates to who had the most money. Which explains a lot about the demographics of the prisons.

If I were innocent, I'd want a French court. If I were guilty, I'd want an American court and a rich uncle. That doesn't sound nice at all.
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