Hi Patrick,
What law school did you attend?
As we learned in law school, the adversarial system is fine unless there is a substantial difference in ability to have access to the same quality of representation. My lecturer called it the "deep pockets principle" and there is a substantial statistical correlation between financial capacity and which side wins. Have a read of the NAS report on Strengthening Forensic Science in the US and their issues with equal access to resources for defendants. I'm not necessarily endorsing their suggestions on how to address it, but it's an interesting read.
I'm not saying that in practice a "Civil Law" system produces a better result in practice, my experience has been in two common law countries, but as a forensic practitioner, I can respect a system where the first responsibility of all lawyers is to the truth, rather than to any particular person or the state.
That's why I put my "in practice" comment. Because although the intent may be different, the practice doesn't necessarily follow. In my experience, many different legal systems tend to borrow from the good (and sometimes bad) aspects of other legal systems, so it wouldn't surprise me that lawyers in civil law systems are acting more adversarial than the system would seem to imply at a philosophical level.
I my experience as a witness in civil cases, I'd have to say that the primary role of the lawyer seems to be that of advocating for his/her client, not seeking the truth. I am not saying that this is a bad system, but I am suggesting that truth often takes a back seat when it comes to civil actions, which may be one reason why so many civil actions end up being settled out of court.
There are also "incentives" to bundle certain types of civil actions because the losing party has to pay the legal fees for the prevailing party.
Where is it written that the losing party has to pay legal fees for the prevailing party?
It is frequently asked for, I wasn't aware of any rule which states that it has to be.
That's why I put my "in practice" comment. Because although the intent may be different, the practice doesn't necessarily follow. In my experience, many different legal systems tend to borrow from the good (and sometimes bad) aspects of other legal systems, so it wouldn't surprise me that lawyers in civil law systems are acting more adversarial than the system would seem to imply at a philosophical level.
I my experience as a witness in civil cases, I'd have to say that the primary role of the lawyer seems to be that of advocating for his/her client, not seeking the truth. I am not saying that this is a bad system, but I am suggesting that truth often takes a back seat when it comes to civil actions, which may be one reason why so many civil actions end up being settled out of court.
There are also "incentives" to bundle certain types of civil actions because the losing party has to pay the legal fees for the prevailing party.
I my experience as a witness in civil cases, I'd have to say that the primary role of the lawyer seems to be that of advocating for his/her client, not seeking the truth. I am not saying that this is a bad system, but I am suggesting that truth often takes a back seat when it comes to civil actions, which may be one reason why so many civil actions end up being settled out of court.
There are also "incentives" to bundle certain types of civil actions because the losing party has to pay the legal fees for the prevailing party.
I was talking about Civil Law legal systems, not about civil (non-criminal) cases under a common law system.
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That's why I put my "in practice" comment. Because although the intent may be different, the practice doesn't necessarily follow. In my experience, many different legal systems tend to borrow from the good (and sometimes bad) aspects of other legal systems, so it wouldn't surprise me that lawyers in civil law systems are acting more adversarial than the system would seem to imply at a philosophical level.
To be honest I am not even sure they think about it this (deeper) way.. They are just trying to do their job, i.e. to help their client in whatever way they can.
The difference here is that computer forensics is very new to everyone. Lawyers are not used to that, they don't understand. Also we have only a few forensic experts in this field here.
So when I come to testify, lawyers usually start attacking me (who am I, what is my education/experience etc.), this takes 5-10 minutes, and then they just go through all parts of my expert statement wanting me to repeat everything again and all they are focusing on is just trying to catch me saying something stupid or illogical etc. Also they are paying attention if I say anything regarding to the legal questions (which is what we are not allowed to comment).
That's all. It's not adventurous or anything, it's just boring and annoying. I was never confronted with the opposite expert, that's happening very rarely. The defendant side usually don't have any expert at all.
Just once the court (not the defendant side, but the judge himself) invited another expert (I don't know for what exactly) in the same matter. We met at the hall waiting to be convened, we just said "hi" to each other and that was it. I went first, then him. No confrontation or anything.
Well, I have never personally witnessed any trial in U.S., so I can't compare. But based on what one can hear and what you indicated and what I just described, I guess you are probably right after all, here it's maybe not such dramatical/adversarial circus as in U.S. But I participate only in criminal cases, civil ones are probably more interesting.
In criminal, the state attorney decides to take the case to the court only if he/she believes that the defendant is guilty. And usually he is indeed found guilty. Their lawyers then usually try to build the defense rather on some procedural issues (someone did something wrong during the investigation etc.) than attacking directly the subject of the accusation.
Maybe it's related to our past. The communism ended here 20 years ago, but maybe people are still not used to fight for themselves with such a passion. It may also be that they don't care that much because even if they are sentenced, they may simply not show up at the prison (if they weren't held in custody) and stay free either here or move to some other country and no one will find them. Just a few days ago I discussed with the police investigators under what circumstances can the police break into the house of a fugitive. Unless they have some concrete evidences that he may be hiding there, they don't get the permission. Crazy?
Take Viktor Kozeny for example, our probably the most famous international criminal. He has stolen almost 1 billion of USD (recalculated) from the Czech people, he has done many other frauds in other countries and what happened? Nothing. He is laughing and no one really cares.
I was talking about Civil Law legal systems, not about civil (non-criminal) cases under a common law system.
Probably the main difference is that while previous decisions of your courts (in common law system) are legally binding thus your judges in fact are making the law and every future court must stick to it, our courts (in civil law system) must stick only to the "real" codified written laws (issued by the lawmakers - the government). Previous court decisions may or may not be taken into account. In the reality the judges sometimes do, sometimes don't, it's really unpredictable.
So different people committing the identical crime may be judged and sentenced (or not sentenced at all) differently.
I was talking about Civil Law legal systems, not about civil (non-criminal) cases under a common law system.
Sorry, misunderstood, however, I still assert that truth is often subjective, in matters of law and justice, and that the adversarial role exists in many common law societies as a means of protecting the individual against the power of the state. Such protections may be unavailable to the defense under a Civil Law society.
Sorry, misunderstood, however, I still assert that truth is often subjective, in matters of law and justice, and that the adversarial role exists in many common law societies as a means of protecting the individual against the power of the state. Such protections may be unavailable to the defense under a Civil Law society.
I wonder in what country in particular is the adversarial role prohibited.
I wonder in what country in particular is the adversarial role prohibited.
Quite a few, including the US. A grand jury, for example, is inquisitorial (non-adversarial), in that the defense is not allowed to ask questions or cross examine witnesses. In France, there is a similar process which is used to bring about indictments. There are many countries in the Middle East and South America where inquisitorial justice is the norm and the defense is limited in what it can do. In parts of Europe, for example, the defense is not allowed to question victims in child abuse cases.
In fact, the inquisitorial justice system is more prevalent, worldwide, than the adversarial system.
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I wonder in what country in particular is the adversarial role prohibited.
Rather than say it is "prohibited," a more accurate statement is that the Adversarial System is not universal. France, most notably, uses the
Key differences Adversarial systems place the power to collect evidence and present witnesses in the hands of the attorneys. Inquisitorial systems place more power in the hands of judges, who are tasked with gathering evidence and questioning witnesses.