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PREPARING FOR TRIAL

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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