Tactical and Protective Adversarialism

Courts in common law jurisdictions operate according to a system that is described as adversarial. By contrast, courts in civil law systems tend to use procedures in court that are substantially inquisitorial. In fact most systems contain a mixture of the two forms, although the adversarial form of litigation tends to be a dominant part of common law systems. 

Under the adversarial system the running of the case is largely in the hands of the parties. Many lawyers are culturally attached to, if not addicted to, the notion of adversarialism. Adversarialism, however is but a means to an end and if it is to be retained, and the extent to which it is to be retained, depend not on the attraction it has for lawyers but on functional adequacy. Does it deliver the goals of courts in the legal system in a way that is both effective and efficient? 

The answer lies in classifying adversarialism into two types, protective and tactical. Protective adversarialism, is a corner stone of justice. It nourishes justice. By contrast tactical adversarialism is a fountain of injustice. It poisons justice. 

The article explains the problems that tactical adversarialism causes. It then examines ways of eliminating the problems. Some of these methods are suggested reforms, while some have already been introduced. In fact the ones that have been introduced in at least three jurisdictions – the Commonwealth, New South Wales and Victoria – almost completely outlaw the practices that constitute tactical adversarialism. That said, there may still be other reforms that would improve the quality of civil justice.