March 2013

Lowcountry Lawyers: Litigation in the American Adversary System

Author: Sam Bauer

Not all lawyers are trial lawyers—those whose practice of law exists largely within the courtroom. In fact, some of the best lawyers never set foot in a courtroom. Hilton Head’s own Herb Novit, recognized as one of the best and brightest lawyers in the State of South Carolina, isn’t a trial lawyer. But everyone who has ever encountered him knows they’ve met a true genius. So, it isn’t genius or legal acumen that separates trial lawyers from the rest of the bar. But trial lawyers clearly are separate. Litigation is not a “specialization” recognized by the South Carolina Supreme Court. It is, instead, a type of practice focused on by the lawyer.

The American system of justice depends of an adversary system, backed by skilled trial lawyers. Some other countries, notably France, have adopted an inquisitorial system of justice, wherein the judge takes a very active role in determining the parameters of the conflict, narrowing the issues and determining the evidence available to each side. The inquisitorial system, though not without some merit, despite centuries of experimentation, has proven to be too expensive, too slow, and too easily manipulated by those in power.

The adversary system is, at its worst, antagonistic and combative, but it has existed and become better refined during the thousands of years of its existence. Cicero gained his celebrity in Rome by virtue of his skill as a trial lawyer. It is entertaining to note that even during the dark ages the adversary system was used to settle disputes. In the absence of trained lawyers, the litigants endured trial by combat. The adversaries fought to the death, with the assurance that God would protect the party in the right.

At its best, the adversary system operates much in the same way the free market governs economics. The stronger legal position and greater weight of evidence are trusted to be the winner in the free market of independent jury deliberations.

Adversary litigants are in a better position to understand which issues are important to them and what evidence they have available to support their claim than would an inquisitorial government agent. The adversary system has proven to be nimble, relatively inexpensive for litigants, and adaptable to changes in economics and regional-cultural differences. The only real repeated criticism of the adversary system is that the outcome of a contest is so dependent on the skill of the lawyers involved. American Poet Laureate Robert Frost wrote, “A jury consists of twelve persons chosen to decide who has the better lawyer.”

It must be conceded, that no one should trust their cause to an unskilled litigator, and the best litigators have been acclaimed for their terrific victories. Lawyers like Clarence Darrow, Alexander Hamilton, and Barry Scheck have earned their laurels. But, I for one, place great faith in the wisdom of juries. Despite, Norm Crosby’s quip,
“When you go into court, you are putting your faith in to the hands of twelve people who weren’t smart enough to get out of jury duty,” we have seen amazing wisdom and insight exhibited by the citizens of Beaufort County on our juries. These average citizens, called to serve the common good, have listened patiently to days and weeks of testimony and sometimes endured sequestration from all outside contact. They have faithfully done their best to divine the truth behind the testimony and arguments. The justice system itself puts great weight in the value of a jury’s insight and truthful verdict. An appeal can be taken because of a mistake made by the judge, but there is no right to appeal a jury decision. Verdict itself comes from the Latin phrase veredicto, meaning “to speak the truth.”

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