There are two basic types of legal systems--inquisitorial and adversary--each
based on different theories of how best to find truth. In both systems, the
opposing attorneys are charged with fighting for their clients; the difference
in the systems stems from the role of the judge.
In an inquisitorial system, the judge may inquire into the presentation of the
case and its underlying facts. In general, a judge allows the jury to hear all
of the evidence in a case but tells the jury which evidence to ignore and which
to give special credence. This gives the judge the ability to control the case
and to ensure that justice (in a societal rather than a personal sense) is
done. The attorneys in an inquisitorial system present the facts of a case in
the light most favorable to their clients, but they are not permitted to
withhold facts that are material to a case. In criminal prosecutions, where the
state is both a party and the judge, inquisitorial systems may not provide a
defendant with the protections that are inherent in an adversarial system.
Conversely, in a civil action in which both parties are private citizens, the
inquisitorial judge's prerogatives may result in a more objective trial than is
possible in an adversarial system.
The United States has an adversarial system. The opposing attorneys have
primary responsibility for controlling the development and presentation of the
lawsuit. The judge acts as a referee, seeing that the rules of civil procedure
are followed and that the jury is insulated from "improper" information. The
attorneys may not lie but have no duty to volunteer facts that do not support
their client's case. It is expected that each attorney, through discovery and
courtroom confrontation, will flush out the facts concealed by the opposing
side.
Supporters of the adversarial system argue that the competition between the
opposing attorneys is a better guarantee of truth than inquiries by an
impartial judge, but this ideal is seldom achieved. In many cases, particularly
those that involve complex or technological or scientific issues, truth becomes
secondary to the theater presented by an effective, well-financed
advocate. The importance of an attractive presentation, combined with the
reality that few cases actually go to trial, makes pretrial preparation the
major activity of trial lawyers.
Preparing a lawsuit for trial involves a great deal of work. The facts in the
case must be explored, experts must be engaged, the law must be researched, and
the opposing counsel must be ritually bludgeoned. Lawyers are expected to
prepare each case as if it will inevitably result in a trial, although most
cases settle before trial. Most lawsuits are settled to avoid the risks of
trial. In a settlement, the defendant's liability is fixed and cannot exceed
the limits of the insurance policy; the plaintiff receives a certain award,
even if it is less than might be awarded at trial.
Cases are tried only when the plaintiff's attorney and the defendant's attorney
have greatly differing views on the settlement value of the case. While the
purpose of pretrial preparation is ostensibly to allow the case to be tried,
the actual purpose is to reduce the uncertainty over the valuation of the case
so that a settlement can be reached.
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