Friday, February 26, 2021

SCALES OF JUSTICE


 



This is how ignorant I am:       For years, I’ve had a real hate-on for the legal system in the U.S. because trials seemed to be more about winning the argument than about seeking the truth. And the winner was often the person with the most money. If the argument was good enough, the defendant or plaintiff rich enough, seemingly guilty parties were acquitted and innocent people convicted. You could get away with murder if you had a good enough lawyer. That just did not seem right.

 

But, lo and behold, I recently found out why this was the case.

 

My friend and accomplished litigator, Robert Shapiro of Chicago, explained to me for the first time that it is because our legal system is an adversarial, or ‘adversary’ system. This is a legal technical term, not an interpretation. In an adversary legal system, presenting the better argument is precisely what the lawyers are supposed to do. 

 

Each side presents its perspective on the facts of the case and a neutral party decides which perspective is more convincing, the neutral party being a jury, judge, or tribunal of judges. Truth, supported by evidence, is required and assumed on both sides. It is the neutral party’s conclusion regarding which perspective, which interpretation of the facts, is the better one, that determines the outcome. The exception is in a criminal trial where the jury is not 'neutral' because the defendant is presumed innocent until proven guilty. If the prosecution leaves any doubt about guilt in a criminal case, it is the jury’s duty to acquit.

 

The adversary system applies to all or most legal systems that originate from English law…as opposed to an inquisitorial or magisterial system (common in Europe and most of the rest of the world) where the judge investigates the case before ruling.

 

So, that’s the essence. Here in the West, the argument is the determining factor. I now have more respect for the system and how prosecutors, litigators and defense attorneys operate.  

 

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