(This is an edited version of the feature article published in The Advocate’s Society Journal, April, 1985).

 

The fundamental premise of systems of justice around the world is that people who have a conflict or disagreement can best deal with it by doing battle against each other. 

The theory is that in the process of battle either the just will prevail over the unjust, or the parties will find an answer in the balance established by placing their respective claims and arguments on opposite sides of the scales held by Lady Themis:- that blind-folded goddess who holds the scales of justice on one hand and a sword in the other.

Lawyers and judges, in particular, know that the situation in which one party has justice totally (or substantially) on their side and the other party is “dead wrong” is, at least in civil matters, uncommon, so lawyers apply their time and energies in trying to find a common denominator or level where the competing interests of all parties can be calibrated and balanced.

But lawyers also have a professional duty and obligation to ensure that the adversarial system of justice functions well. 

Another fundamental premise is that only in the adversarial process can advocates serve their true purpose, which is to competently represent their client’s weaknesses and strengths to ensure that they are fairly and properly considered in the process of finding a resolution. 

A well-informed, independent, competent advocate of integrity is essential to the preservation of the adversarial system of administration of justice.

Thus, the two axioms underlying everything that lawyers do are, first, that we encourage and promote healthy, vigorous, honest, and open competition; second, that competent, independent, honest advocates of integrity are indispensable to the process.

I challenge the first premise but not the second. Especially among lawyers, there is an assumption that we cannot compete fairly unless we have lawyers. And from that we jump to the conclusion that there is no point in having lawyers if we can’t compete.

It is time for us to begin to consider whether the very existence of lawyers as professionals depends on the existence of the adversarial forum in which to participate.

There may be a hanging on to the adversarial system for the sake of preserving the function of advocates. Perhaps there is a sensing that if we change the nature of the process, then advocates may become as irrelevant as the dodo and extinct.

And yet, I sense that the adversarial system is on its death bed: regardless of where we stand on the philosophical question of whether it is or is not the best system possible, technology is of necessity displacing it.

From purely ethical and philosophical considerations, I have long had doubts about the adversarial principle. The basic stance of someone functioning on that principle is “I win, you lose.” When two skilled adversaries enter into battle, both with that attitude in their mind, the inevitable result is two losers; it becomes a question only of who loses the most and who loses the least.

From an ethical and philosophical perspective I have always thought that cooperation and collaboration are much higher in my scale of values than competition; if the people involved in a conflict could, instead, face each other committed to the idea of “let’s make winners of us both,” then at least there is a chance of making winners on both sides. The adversarial stance precludes that possibility.

I don’t think there is too much disagreement at the philosophical and ethical level as to whether or not cooperation and collaboration are more desirable than adversity. However, there is a feeling among lawyers, in particular, that a system of justice based on collaboration just will not work.

But our apprehension is probably fuelled by the fact that we consider (when we do) a system based on collaboration with the vision and an attitude based on competition. Perhaps we cannot see too clearly. I am certain we would all agree that we would be much better off loving each other rather than hating each other, but it’s just that we don’t see loving each other as being too practical. Certainly it would be considered Utopian, and that is not an accusation that people appreciate!.

The question as to whether or not the adversarial system is the best system must always be open to re-examination and it is open to re-examination now. And I don’t think the decision will be made on the basis of resolution of philosophical and ethical considerations so much as it will be made by technology. It will be the result of the development and maturity of the information/communications technology when applied to conflict resolution.

We undertake conflict resolution in an environment where we are presumed to know very little. Particularly in the litigation process, we begin with the assumption that the judge knows nothing, so everything needs to be proved.  Nothing is to be taken as established until proved.

Today, technology gives us almost instantaneous access to immense amounts of information and sophistication in understanding it. When a judge enters the court, he has the ability to “know everything.” The basic fact will change from “absolute ignorance” to “absolute knowledge.” In this environment the lawyer’s function must change from that of trying to prove the facts that are relevant to that of learning to discard the facts that are irrelevant.

If an adversarial stance was useful in a dynamic that presumed ignorance, it is because the competition relates firstly and fundamentally to the facts. But when we know with sufficient certainty what the facts are, what is there to compete about?

I think we would all recognize that a competitive stance works, at least to a fashion, in an environment where the premise is that every fact needs to be proved.  After all, the adversarial system has in fact functioned (as we can all attest), and indeed has served us well in the circumstances that have existed until recently. 

In my consideration, competition is not practical in an environment where we all have equal access to the data and the facts. In that environment, it seems to me, competition will not work but cooperation will; not only will cooperation work, but cooperation is indispensable.

We all acknowledge, at least passively, the proposition that “knowledge is power.” If each person in a dispute or disagreement has equal access to information and knowledge, then our energy can be devoted to seeking better understanding. 

What I sense is that the only practical way to such better understanding will be cooperation and collaboration. Each person can develop his own fantasies as to what is possible in the cause of fairness, equity, and justice in a cooperative atmosphere with open and to access to all relevant information. When I stop to dream about it, it makes my spine tingle.

There is a challenge here for us who call ourselves advocates, a practical challenge at a practical level which, I think, is indispensable to the process of administration of justice. The challenge is to learn how to retain and expand upon our responsibilities as lawyers by cooperating, by learning how to find the highest possible level where disputants can resolve their differences.