Fight Theory Notes

The "Fight" Theory versus The "Truth" Theory

Introduction

The author, Jerome Frank, discusses two theories of trial methods: the "fight" theory and the "truth" theory.
The "rational" view of trials assumes courts conduct an intelligent inquiry into all available evidence to ascertain the truth.
This "investigatory" or "truth" method aims for an educated guess about the facts.
The success of this method depends on:
- Obtaining all important evidence.
- Having competent judicial inquirers (judges and juries).
The focus is on whether trials are conducted to procure all practically available important evidence.

The Contentious or Adversary System

The current trial mode is "contentious" or "adversary," based on the "fight" theory.
This theory originates from trials as substitutes for private brawls.
Many lawyers believe the "fight" theory and the "truth" theory coincide, arguing that partisan efforts bring out all relevant evidence.
Macaulay suggests the fairest decisions arise from opposing sides arguing as unfairly as possible to ensure no consideration escapes notice.
The "fight" theory has value as zealous lawyers may uncover evidence that a dispassionate inquiry might miss and illuminate legal rule niceties.

Excessive Partisanship

The partisanship of opposing lawyers can obstruct vital evidence or distort testimony.
The fighting spirit has become dangerously excessive, particularly evident in handling witnesses.
In a truth-seeking inquiry, efforts would be made to minimize witness errors and ensure circumstances conducive to observing their demeanor.
Contentious trial practice often does the opposite.

The Experience of Witnesses

Businessmen and generals would not use trial-like methods to gather information for critical decisions.
A judge notes the bewildering experience for witnesses due to the novelty, agitation, cajolery, intimidation, and confusing cross-examination, which can lead to errors and omissions.
Another judge describes witnesses as strangers in unfamiliar circumstances, leading to embarrassment.
Henry Taft (brother of Chief Justice Taft) notes that lawyers and courts force witnesses to abandon their habitual thought and expression methods, conforming to rigid court procedure.
This can lead to misunderstandings and the impression of evasion or falsification from truthful witnesses.
Honest witnesses may appear evasive or withholding during cross-examination due to suspicion and discomfort.

Lawyers' Stratagems

Experienced lawyers use stratagems to minimize the impact of disadvantageous testimony, even if accurate.
Lawyers consider it their duty to create a false impression of adverse witnesses, exploiting their weaknesses (e.g., timidity) to confuse them.
Longenecker's book, endorsed by Wigmore, advises lawyers on how to ruin the testimony of truthful, honest, over-cautious witnesses through rapid cross-examination.
Lawyers are advised to provoke irritable witnesses to display unpleasant characteristics to discredit them.
Harris suggests making an adverse witness appear more hostile than they are, leading them to exaggerate or contradict themselves.
Taft notes that clever cross-examiners can tempt egotistic witnesses to exaggerate, undermining their testimony.
Wigmore acknowledges that intimidating questions can coerce or embarrass witnesses, distorting their testimony's real value.

Anthony Trollope's Reaction

Anthony Trollope criticizes the badgering and harassment of witnesses to the point of mental collapse to extract evidence.
He likens it to torture, where witnesses are sacrificed without intervention.

Sir Frederic Eggleston's Observation

Sir Frederic Eggleston notes that cross-examination terrors deter individuals with important facts from disclosing them to lawyers.
The threat of retaining a certain counsel can force settlements due to the fear of cross-examination.

Hiding Witness Defects

Lawyers attempt to conceal the defects of favorable witnesses by coaching them to cover up mannerisms or demeanor traits that might discredit them.
This prevents the court from accurately assessing the witness's normal demeanor.

Inconsistent Statements

Lawyers prevent witnesses from explaining away apparent inconsistencies during cross-examination.
Tracy advises against asking witnesses to explain inconsistencies, as their explanation may negate the lawyer's point.
He advises lawyers to avoid opening doors to reliable evidence that could harm their case.
Eggleston notes that experienced counsel avoid bringing out the truth in cross-examination if it harms their case.

Concealing Truth

Lawyers avoid calling witnesses who might testify to true facts helpful to the opponent and generally do not concede facts inimical to their client if they cannot be proven by the adversary.
Lawyers hinder cross-examination that would expose inaccuracies in favorable testimony.
They introduce surprise testimony, catching the adversary off guard.
A trial lawyer advises hoarding surprise elements and misleading the opponent about areas they are unaware of.

The Aim of Victory

The purpose of these tactics is to prevent the court from correctly evaluating witness trustworthiness and to shut out evidence needed for the truth.
Lawyers aim for victory, not aiding the court in discovering the facts.
The trial method is likened to throwing pepper in a surgeon's eyes during an operation.

Blaming the System

Trial lawyers are not to blame for using these techniques; the system that compels their use should be criticized.
The system treats lawsuits as a battle of wits and wiles.
Lawyers are obliged to resort to these stratagems because their opponents are doing the same; refraining would violate their duty to their client.
These tricks are a legitimate corollary of the fight theory.

Improper Tactics

Some tactics are considered improper by decent members of the legal profession.
Much testimony is deliberately false; perjury is widespread and often undetected.
Judge Dawson notes the prevalence of perjury as a hindrance to justice.
A saying suggests courts decide cases according to the "preponderance of the perjury."
Some lying testimony results from coaching by dishonest lawyers, but much inaccurate testimony results from innocent witness-coaching.

Witness Coaching

Sensible lawyers interview witnesses before trial, and witnesses often detect what the lawyer hopes to prove.
If the witness wants the lawyer's client to win, they may unconsciously mold their story accordingly.
The line between intentional and inadvertent grooming is difficult to draw.
The contentious method augments the tendency of witnesses to mold their memories to assist one of the litigants, becoming partisans rather than neutrals.

Kaleidoscopic Fragments of Facts

Eggleston notes that evidence contains only kaleidoscopic fragments of the facts, and reality does not survive the analysis by contending lawyers.
Cases are won by ingenuity, making the contest artificial.

Deceit and Misrepresentation

De la Grasserie states that, in modern trials, deceit has succeeded force, bringing similar disasters.
It is a conflict where each party conceals what is contrary to their interests and takes advantage of everything that helps their cause.
An English lawyer notes that one party is always supremely interested in misrepresenting, exaggerating, or suppressing the truth.
These statements are excessive but indicative of issues in contemporary American trials.
Judge Learned Hand's views support such a depressing belief.

The Litigating Citizen

Eggleston remarks that litigants find themselves fighting a different case than they initially expected.
Judge Learned Hand notes that clients may feel baffled by the game-like nature of trials.
The legal profession should not take pride in a system that evokes suspicion of trickery and cajolery.
If a better system cannot be contrived, lawyers could legitimately defend themselves, but an improved system is possible.

Due Process of Law

Mr. Justice Frankfurter observed that diversity in trial results is unavoidable due to fallible judges and juries.
"Due process of law" means a fair trial that meets the minimum test of fairness required by the Constitution.
The Supreme Court holds that a trial is constitutionally "fair" if it does not depart from usual trial methods.
A lively sense of justice may not be satisfied with this minimal constitutional test, as usual practices may deprive men of life, liberty, or property due to avoidable human errors.
Only unavoidable mistakes should be accepted among life's necessary dangers.

Unfair Trials

Lawyers have concluded that Sacco and Vanzetti received an egregiously unfair trial due to the judge's bias and the prosecutors' misconduct.
Innocent men have been convicted in trials without such glaring defects due to legitimized lawyer tactics.
Intelligent laymen should insist that a trial seem fair, not just to lawyers indurated to their trade's techniques.

The Bewildered Judge

A judge depicted a trial as an inquiry for the discovery of truth but cautioned lawyers never to ask the one question that would supply an omission in their opponent's case.
This encourages lawyers to avoid bringing out the truth.
Such a judge will make no serious effort to change a system permitting lawyers to obscure the facts.
The legal profession is responsible for non-lawyers blaming them for such tactics, as lawyers are "officers of the court" with a duty to help save the court from error and aid in a proper determination of law and facts.
These words mean only that lawyers must not affirmatively mislead a court or introduce false evidence.
Courts do not effectively disapprove of the lawyers' wiles described.

Layman's Bafflement

Laymen smile cynically when they hear lawyers called court "officers," seeing them as ingeniously obscuring facts.
Kafka described the layman's bafflement and apathy of lawyers concerning reforms.
Advocates do not suggest improvements, while accused men discover a passion for reforms.
The sensible thing is to adapt to existing conditions, as the organization will right itself through compensating reactions.

Criticism of Lawyers

Jonathan Swift referred to lawyers as a society of men bred up in the art of proving white is black and black is white, according to how they are paid.
Kipling talks of the tribe who describe with a jibe the perversions of justice, and Soddy calls lawyers "charlatans."
These strictures are too severe, and their analyses of lawyers' motivations are inaccurate; uninformed laymen cannot be constructively critical.
We need the vigorous, patient, reformist zeal of Jeremy Bentham, who attacked lawyers' complacency and led to the elimination of the worst features of judicial procedure.

Origins of the Contentious Trial Method

The contentious trial method has roots in court trials as substitutes for private brawls.
Wigmore suggested that common law, originating in a community of sports and games, was permeated by the instinct of sportsmanship, leading to a "sporting theory of justice" or "legalized gambling."
This theory has contributed to lowering the system to a mere game of skill or chance.
Runyon likened murder trials to sporting events with the same popular interest and conversational speculation.

The Game of Murder Trial

A murder trial is a sort of game with players on both sides and the defendant as the prize.
The players must be crafty and well-schooled in their play.
The State's attorney is quick to take any advantage of the rules.
This Wigmore-Runyon explanation may be partially sound but over-emphasizes sportsmanship.

Legal Laissez-Faire

The perpetuation of the fighting method is due to the belief in uncontrolled competition or unbridled individualism.
The fighting theory of justice is not unrelated to extreme laissez-faire in the economic field.
Classical laissez-faire assumes that when each individual strives rationally to promote his own self-interest, we attain public welfare.
Legal laissez-faire assumes that each litigious man, through his lawyer, will intelligently and energetically use evidential resources to bring out favorable evidence.
This assumes the trial court will obtain all available relevant evidence and apply legal rules to actual facts.
Legal laissez-faire relies on the individual enterprise of individual litigants to ensure court orders are grounded on all attainable relevant facts.
Most distrust ultra let-alone-ism in the economic field, and observation of court-room realities shows that the postulates of legal laissez-faire are insufficient.
We should retain what is of value in the fighting theory, eliminating what is socially harmful.

Discovery Procedure

The fighting theory has partially broken down; time was when a litigant could refuse to disclose evidence before trial.
"Discovery" procedure requires such disclosure in non-criminal cases, particularly energetic in federal courts.
This is an advance towards effectuating the "truth" theory.
There has been increased insistence on the judge's power to examine witnesses and summon witnesses, though few judges avail themselves of that power.
Judge Shientag said that a litigant has the right to expect that the judge will not interfere in the examination of witnesses, except to correct errors, misconceptions, or misrepresentations.

Crucial Evidence

Even if the judge interferes and "discovery" procedure is open, the trial court may fail to learn of crucial evidence due to the lawyer's incompetence.
The impecunious litigant may be singularly disadvantaged for lack of means to retain an able lawyer; Legal Aid Services help, but much remains to be done.

Errors and Relief

Apart from failure to bring out evidence, the mistakes of a man's lawyer may cause him to lose his case - a proper result under strict legal laissez-faire theory.
The upper courts sometimes relieve a litigant of an egregious error resulting from their lawyer's blunder, but there persists a reluctance to grant such relief.

Financial Constraints

With the ablest lawyer, a man may lose a suit he ought to win if he has not the funds to pay for an investigation of necessary evidence.
This refers to evidence not in the files of the other party and not obtainable by "discovery" procedure.
To prove his claim or defense, a man may need to hire detectives to locate witnesses or unearth documents or hire engineers, chemists, or expert accountants.
Winning or losing may depend on his pocketbook; he is out of luck if his pocketbook is not well-lined with money.
Neither his lawyer nor any legal-aid institution will supply the needed sums, and many suits have been lost or never asserted for want of money.

True Justice

That is not true, democratic justice, this defect makes a mockery of "equality before the law."
The advantage is on the side of the party that can "purchase justice."
We must acknowledge that frequently we are "selling justice," denying it to under-incomed persons; it should shock us that judicial justice is often an upper-bracket privilege.

Court's Decision

A court's decision is not a mere private affair; it culminates in a court order, a solemn governmental act enforced by the police, sheriff, or army.
A court order should exist only if some facts bring into operation a legal rule.
Any government officer, other than a judge, authorized to do an act for the government only if certain facts exist will conduct a governmental investigation, not relying solely on the applicant's statement.
Do courts so conduct themselves?

Criminal Cases

In criminal cases, there is some recognition that so important a governmental act as a court decision against a defendant should not occur without ensuring it is justified by the actual facts.
Before a criminal action is begun, an official investigation is conducted.
Public Defenders represent indigent defendants charged with crime a reform that should be adopted everywhere.
The responsibility of government for mistakes of fact in criminal cases is recognized when the government compensates an innocent convicted person.

Civil Cases

In civil cases, a strikingly different attitude prevails; the government accepts no similar responsibilities, even in theory.
Such a suit is still in the ancient tradition of "self help."
The court relies almost entirely on evidence offered by the parties; lack of skill or diligence of the lawyer or want of funds may result in crucial available evidence not being offered.
No government official has the duty to discover and bring to court evidence not offered by the parties.

Government Responsibilities

The theory is that, in most civil suits, the government should make orders which it will enforce, though they may not be justified by the actual facts.
By reasonable diligence, the government might have discovered evidence at variance -- coming closer to the actual facts.
The consequence of a court decision in a civil suit, based upon the court's mistaken view of the actual facts, may be as grave as a criminal judgment which convicts an innocent person.
If a man loses his job or savings and becomes impoverished because of such an erroneous decision, he may become a public charge, and his children may become criminals.
In no jurisdiction is a man compensated for serious injury caused by a judgment against him in a non-criminal case, even if it is later shown the judgment was founded upon perjured or mistaken testimony.

Solutions

There is something fundamentally wrong with the legal system in this respect. If a man's pocket is picked, the government brings a criminal suit, but if a man loses his life's savings through a breach of contract, the government accepts no such responsibility.
Shouldn't the government perhaps assume some of the burden of enforcing what we call "private rights"?
We should consider providing impartial government officials who are not court employees to dig up and present to the courts significant evidence that one or the other of the parties may overlook or be unable to procure.

Trials Remain Adversary

No court would be bound to accept that evidence as true, nor would any of the parties be precluded from trying to show the unreliability of such evidence.
Trials would still remain adversary; to use that device in all civil cases would lead to many complications, and it should not be adopted at once but experimented with.

Improvement of Administration

President Taft endorsed something of the sort more than thirty years ago, regarding the improvement of the administration of justice as of utmost importance and making it so that the poor man will have as nearly as possible an opportunity in litigating as the rich man.
Statutes in some jurisdictions authorize the trial judge to call as a witness an expert selected by the judge.
Judges might avail themselves of that power to help indigent litigants.
Those statutes do not provide for payment by the government to judge-called experts in non-criminal suits, nor do they permit expenditures for detectives and other investigators.
This expedient might be expanded to solve the problem partially.

Limitations

None of these proposals, if adopted, would usher in the millennium; public prosecutors of civil actions will make mistakes or become partisan.
The trial process is, and always will be, human, therefore fallible, and can never be a completely scientific investigation for the discovery of the true facts.

Hypothetical Scenario

In a crude society, A claims B stole A's pig; if true, B violated a tribal rule, but B denies it. A attacks and kills B; does that prove B was wrong or constitute the enforcement of the tribal rule?
In the U.S.A., A sues B, claiming fraud; a legal rule says that if B did those acts, A can recover the pig or its value; if A wins, does the decision constitute enforcement even if A won through perjury or mistaken witness?

Acceptance of Court Findings

A lawyer replied, "Yes, in theory. In theory, the facts as found must be assumed to be true." That is, even if courts misfound the facts in 90% of all cases, they would enforce the rules.
Even if the courts make mistakes in fact-finding and render erroneous decisions, the public does not learn of those mistakes.
Conviction and punishment of the innocent serve to deter others from crime if the errors are not later discovered and publicized; effectively concealed instances of injustice are not only harmless but socially beneficial.

The Cynic's View

If a non-criminal legal rule is of a desirable kind, why bother whether trials correctly apply it? Public respect will come from its misapplications as from its correct applications if the public doesn't learn of its misapplications.
Mistakes should not be worried about.

Conclusion

The invention of courts marked a great step forward in human progress, but should a modern civilized society ask more of its courts than stopping peace-disrupting brawls?
The basic aim should be the just settlement of disputes; this demands striving to get as close as humanly possible to the actual facts of specific court-room controversies.
The trial court's job of fact-finding is one of the most important jobs in modern court-house government, but it is not as well done as it could and should be.
Vinagradoff said that an "ancient trial" was little more than a "formally regulated struggle between the parties in which the judge acted more as an umpire than as an investigator of truth."
To continue that tradition, modification is surely not the best way to discover the facts.
Improvement in fact-finding will necessitate some considerable diminution of the martial spirit in litigation.