The American adversary system comes under close scrutiny in Reconstructing Justice and, as the name implies, is found
wanting. Franklin Strier’s main contention is that our "trial court dispute resolution process is gravely flawed," with case
outcomes showing increasing signs of irrationality and injustice. This unsavory state of affairs is due primarily to the
unconstrained actions of attorneys in our adversarial system where fostering conflict is the name of the game. With a
complacent judiciary placing little or no limits on behavior, attorney "success" comes to be gauged by such attributes as the
ability to manipulate jurors through a broad repertoire of courtroom theatrics and the gleeful willingness to drop ethics from the
scorecard of professional conduct. The central premise of this book is that justice (big J) will be possible in our society only if
attorneys are forced to relinquish their overriding commitment to adversarialness and case control is placed where it belongs:
the hands of competent, neutral, factfinding judges. This book calls not simply for reform, but for a fundamental reassessment of
the institution of justice. Strier’s ardent hope is for American justice to move away from the adversarial model and toward the
inquisitorial model used in continental Europe.
In reading this provocative book I found myself alternately agreeing and arguing with Strier’s commentary on almost every
page. This book is not an evenhanded appraisal of the pros and cons of alternative methods of dispute resolution. Rather, it is a
300-page argument in support of the inquisitorial system. Few books take on the adversary system as their exclusive subject
and, as a consequence, I found it troubling that Reconstructing Justice is so---adversarial. Strier certainly knows the system
he is attacking and uses the tools and techniques of the most zealous advocate to make his case. If you have sanguine views of
the adversary system, prepare to have them challenged.
Following an overview of the book’s themes in Chapter 1, the traditional justification and benefits of the adversary system are
reviewed in Chapter 2. The primary characteristics of the adversary process are seen to be party participation and control of
the proceedings, partisan attorneys on each side, an impartial judge, and the prospect of trial by jury. Throughout this review,
any social benefit emerging from these features of dispute resolution are asserted to be "theoretical" at best.
Strier takes the gloves off in a scathing critique of the adversary system in Chapter 3. He marshals a range of arguments to
show, for example, that the adversary process is typically more effective at concealing truth than revealing it; that "the natural
limitations of all individuals who lack legal training" (58) in combination with restrictive trial court procedure produces juror
incompetence; that the adversary process is inappropriate in many types of cases and produces inadequate remedies; that the
prominence of attorneys in the trial process (and their willingness to abuse the system) along with the huge divergence in
attorney skill levels means "justice" is malleable and available to the highest bidder; that attorney excess is seldom constrained
by a passive judiciary; and, finally, that the adversary system does all of this too slowly. Two of the major criticisms--jury
incompetence and the relationship between truth, justice and advocacy ethics--are examined further in chapters 4 and 5.
Strier has strong opinions and clearly understands the power of anecdote in his analysis. However, his long and often insightful
critique is only occasionally buttressed with empirical information--and a willingness to admit there may be differences of
opinion about the "facts". For example, he singles out discovery abuse as the "greatest source of cost, delay, and attorney
abuse in the system (18)," although recent research shows that the vast majority of general civil litigation cases settle without the
time or expense of formal discovery. Likewise, he asserts that "[w]aits of four years or more just to get a trial date for a filed
suit are commonplace (87)," when data from a recent study of civil litigation in 45 large urban courts shows the typical time to
trial is approximately 2 years. Of course, the potential for discovery abuse and court delay are topics for concern, but a
tendency to overstatement blunts the effectiveness of his arguments.
Chapter 6 turns from the examination of the adversary process to a review of the alternatives. The chapter begins with a solid
overview of the growth and development of alternative dispute resolution (ADR) in the United States. Readers steeped in the
US system will likely have considerable interest in the other category of ADR discussed in this chapter: the inquisitorial system.
Strier provides a lively and informative comparison of the similarities and differences between the inquisitorial system, used by
most non-English-speaking postindustrial nations, and the US adversarial system. Although the author contends that the
question of which system is better remains "largely unanswerable", it is always clear where Strier’s sympathies lie. Take
fact-finding. The inquisitorial process, guided by a rigorously trained and neutral judge, is seen to ensure that little relevant
evidence is excluded (unlike the adversary process where partisan attorneys will "taint [the evidence] in a self-serving manner").
In addition, because the state directs the gathering of evidence in the inquisitorial model, hearsay and other grounds for
inadmissibility do not apply and the neutrality of the judge prevent coaching or abuse of witnesses. In sum, "[s]ince the court’s
share of the fact-finding (independent investigation) if far greater under the inquisitorial system, a correspondingly higher share
of the total resources invested in the case are applied to reaching the correct conclusion. Therefore, a higher degree of accuracy
should be expected." (220) Strier argues that other benefits of the inquisitorial system, relative to the adversarial system, include
a reduction in the bias of the judge, a more flexible trial process, and a more suitable forum for engaged discourse and debate.
The heart of this book is Strier’s Blueprint for Reform laid out in Chapter seven and is well worth reading. One gets the
general gist of his suggested direction for reforms in the following statement:
The best check on adversarial excess and injustice is a revitalized, fortified judge and jury. They are closer to the action
and can provide immediate melioration specific to the case being heard, Most importantly, they can best counteract
attorneys’ power to distort and undermine trial justice. (236)
Not surprisingly, then, the primary reforms focus on jury empowerment and improvement (e.g., allowing jurors to ask questions
and take notes, use of expert juries, guidance on damage awards), reform of the judicial selection and retention process (e.g.,
drop judicial elections and replace with merit-based selection), and mitigating the consequences of adversarial excess (e.g.,
discovery reform, judge-conducted voir dire, judge questioning).
My gripe is not with Strier’s set of reforms (he presents many good ideas) nor his contention that the adversary system is slow
to change (it is), but rather his adversarial style in portraying the worst excesses of the system as commonplace. Not to put too
fine a point on it, the field of judicial administration has been successful in introducing a range of new policies, practices, and
even courts into the American system that are directly in line with many of the reforms he offers. While Strier laments that a
judge hears only two sides in the adversary system, the factfinder (reader) in this trial of the adversary system too often gets
only one--the downside. His case against the adversary system would be even stronger and more persuasive if Strier were to
have followed his own advice and undertaken a more neutral and evenhanded investigation.
