Adversary Justice
Drawing on British antecedents, American justice relies on an adversary system. This is true in both civil and criminal cases. Under this system, the parties to a litigation, represented by counsel, largely conduct their own investigations and determine the issues to be decided by the judge or jury. The judge and jury are relatively passive, hearing the evidence and making a decision according to the applicable law. The judge has additional responsibilities to superintend the progress of the litigation and to ensure that procedural rules are honored. But the judge does not conduct a factual investigation on his or her own. The judge relies on the lawyers to produce the relevant information and to challenge the information produced by the opposing lawyers.
The adversary system proceeds on the assumption that parties to a lawsuit are in the best position to determine its scope and content in a way that will generate substantial justice. After all, they are the ones who will have to live with the result, and so they are seen to have the greatest interest in affecting it.
One consequence of this theory is that, with a few exceptions, lawyers in an adversary contest have no obligation to parties or interests other than their own clients. If a lawyer were to discover information that would be helpful to an opponent but harmful to his or her client, that lawyer would ordinarily have no duty to reveal the information and would indeed have an obligation not to reveal it unless (improbably) a court rule required the lawyer to do so.
Consequently, justice, or the right result, is not the responsibility of either lawyer. Each lawyer's responsibility is to help his or her own client get the best result possible for the client, whether or not it is the fairest result in an abstract sense. This system is justified on the theory that, when two or more lawyers singlemindedly pursue the interests of their individual clients, the confrontation will lead to the most just result. If it is not a perfect result, many contend that it is at least better than the result any other system of justice is likely to produce.
In addition, supporters of the American system argue that it respects the autonomy of clients by putting them in control of their own cases. By autonomy, they mean respect for the individual and the right of the individual to make important decisions affecting his or her life. If the state takes control of the scope and content of the litigation, the individual's personal autonomy is seen to be compromised, and the individual is less likely to respect the outcome.
American justice is not undiluted adversary justice; there are limits. Most prominently, in criminal cases prosecutors are required to provide the defense with any information which tends to exculpate the defendant. For example, if a prosecutor discovers a witness whose story would help the defendant, the prosecutor must reveal the identity of that witness. If one of the prosecutor's own witnesses has made a deal with the government in exchange for his testimony, the prosecutor must reveal that deal to the defense, which can then use it to undermine the credibility of the witness.
There are other ways in which adversary justice is tempered. For example, any lawyer who learns that her own witness or client has committed perjury may not seek to exploit the false evidence to the client's advantage. The lawyer, as we saw above, might actually have a duty to reveal the false testimony to the court. Similarly, civil litigation rules permit each side to conduct discovery, or a pre-trial investigation, of the other side. An advocate may not fail to produce information properly requested in discovery although the information will hurt the client's chances of winning at trial.
1 See generally RPC Rule 1.11. Federal criminal statutes prohibit former government employees (including lawyers) from representing clients on matters that they handled 'personally and substantially' while in government or over which they had 'official responsibility' within one year before leaving government. Certain former government employees are disabled for designated periods of time (generally one year) from representing clients on any matter before their former agencies. See 18 U.S.C. § 207.