The theory of justice

Why is it that when a lawsuit is filed even the people who win often come away with a sense that they actually lost? In the United States we have what lawyers call the "adversary system.” The theory behind this approach to justice is that if both parties fight equally hard to persuade a judge or jury of the virtues of their respective positions, eventually the truth will come out and justice will be done. This theory of course presumes that that battle at hand is not between the local high school football team and the Green Bay Packers, or between Bill Gates and some homeless chap. Unfortunately, any system of justice that is dependent on the equality of financial resources and the equality of the respective lawyers is fundamentally flawed. True, much of the time the battles are between relative equals, but often they are not, and in these latter cases justice is not possible in our adversary system.

Another flaw in the theory favoring an adversarial system is that it presumes that everyone with a dispute actually wants to spend the money needed to support the adversary system. By its very nature, the adversary system is an extremely expensive way of resolving disputes because, to achieve equality of bargaining position, both sides must take every conceivable step to improve their positions. If one side does more than the other, the likelihood that a just result will be realized diminishes drastically. So both sides fight as hard as possible. Not only does this dramatically increase the costs of resolving the underlying disputes, it also dramatically increases the stresses imposed on parties who are forced to spend their energies attacking each other. No wonder even the winners leave court questioning whether justice has been done; after they have been ravaged financially and raked over the coals personally.

This is why I wrote my novel The Litigators – to bring to the forefront the enormous wastefulness of the American system of dispute resolution. If this topic interests you, I suggest you read the novel and then ask this question when you are done: Who won the lawsuit? The answer you give may surprise you.

Join me next week for What does it mean to “win” a lawsuit?