Breaking the Dichotomy Habit: The Adversary System and the Ethics of Professionalism

Abstract

Litigation lawyers learn early in their practices that although the adversary system functions tolerably well in many civil cases, its defects are nevertheless extensive and profound. Tactics calculated to delay, distort, obfuscate, obstruct and wear down opponents through frustration and cost are common. Questionable conduct is justified by appeals to the ethics of the adversary system. The consequences are often born by clients—through increased cost, delay and conflict—and even by lawyers themselves—through stress, fatigue and dissatisfaction with the quality of life that the practice of litigation in our adversary system brings with it.

Workers describe the effect of the workers' compensation process on their health: A Québec study

“…Workers' compensation systems are designed to get away from the adversarial nature of the tort justice system yet they have reproduced many of the flaws of the tort system. Even in tort law, the adversarial nature of proceedings is currently critiqued by many legal scholars (Carson, 2003;Coughlan, 1993;Mackenzie, 1996), and administrative tribunals should shun litigious behaviour that is becoming the rule rather than the exception. Adversarial practices in appeal tribunal proceedings can be more stringently proscribed, tribunals can be more proactive in insuring a balance between opposing parties and approaches to cross-examination could be more relevantly regulated (Carson, 2003).…”