Justice is a fundamental pillar of any democratic society, and we expect the system to provide fair and impartial outcomes for all parties involved. In England and Wales, the adversarial system of justice has been the dominant approach for centuries. It is a common model of justice used in common law jurisdictions around the world. It involves two opposing sides, represented by lawyers, presenting their cases to an impartial judge or jury, who then decides the outcome of the case based on the evidence presented. The system is designed so the theory goes is to ensure that both sides are able to vigorously advocate for their positions and that the truth is ultimately revealed through the adversarial process. However, in my opinion the adversarial system can be flawed and may not always promote justice.

One of the main problems with the adversarial system is that it is too focused on winning rather than finding the truth and promoting justice. It may seem a strange thing for a litigator and trial advocate like me to say, but in this system, the goal is to win the case, and not necessarily to uncover the truth. Lawyers are incentivised to put the case in the most favourable light for their client, even if it may not be the most intellectually honest or accurate view of the case. Lawyers can’t knowingly mislead the court, but they can (and indeed must) present the facts in a polemical way in order to deliver the desired outcome for their client. The reality is that it is a system that can encourage lawyers to often resort to various tactics to undermine or discredit the other side’s case, such as withholding or perhaps distorting evidence, not calling witnesses, or using rhetorical strategies to influence the jury or judge. Some of these tactics may be legitimate other tactics less so. But they nevertheless not only obscure the facts, but also create a hostile and confrontational atmosphere that damages the dignity and integrity of the legal process.

Another significant flaw in the adversarial system is the inequality of resources between the parties. Those who can afford to hire the best lawyers and experts often have a significant advantage over those who cannot. This imbalance can result in unfair outcomes, where justice is not necessarily served, but rather the side with the most resources wins. Moreover, the adversarial system can be profoundly unfair when one party is unrepresented. Justice is skewed towards those who can afford to mount a vigorous defence or prosecution. Legal representation and resources are not equally distributed among parties, creating a power imbalance that can disadvantage vulnerable or marginalised groups in society. For example, in civil cases, litigants who are neither very wealthy nor very poor may not be entitled to legal aid or other forms of public funding, whereas their more well-heeled opponents may have access to resources to buy justice. Money is needed to pay lawyers, to instruct expert witnesses, to investigate cases and to find witnesses of fact. It is not uncommon for claimants in civil cases, seeking compensation for injuries or damages to face formidable opposition from wealthy corporations or individuals who can hire expensive lawyers.

A further problem is that it relies heavily on oral evidence and cross-examination as a way of testing the credibility and reliability of witnesses. Cross-examination is considered to be a crucial tool for exposing lies and inconsistencies in a witness’s testimony. However, cross-examination technique often relies on catching the witness in an inconsistency, assuming that if a witness contradicts themselves, they must be lying. However, this assumption ignores the fact that human memory is highly fallible and prone to errors and distortions over time. Furthermore, cross-examination may induce judges and juries to rely too much on a witness’s demeanour as an indicator of truthfulness, which is an unreliable guide as some people may appear nervous or confident regardless of their honesty.

Furthermore, the adversarial system can be emotionally and psychologically taxing for all parties involved. The intense and often combative nature of the system can lead to increased stress, anxiety, and trauma for witnesses, victims, and defendants. This can be especially challenging for vulnerable individuals, such as children or those with mental health issues, who may struggle to cope with the adversarial process.

I suppose the question is whether we can do better than what we have. Now in recent times the adversarial system of justice has been challenged by alternative approaches that aim to address some of its shortcomings.

Critics of the adversarial system argue that the inquisitorial system used in continental Europe may offer a more effective and fairer alternative. In an inquisitorial system, the judge takes an active role in investigating and gathering evidence, rather than relying on the parties to present their case. This can lead to a more efficient and thorough examination of the evidence, and it can also reduce the inequality of resources between the parties.

However, the inquisitorial system is not without its flaws. It can lead to a lack of transparency and accountability, as the judge has significant control over the proceedings. The research of Jacqueline Hodgson, for instance, shows that the French inquisitorial system of criminal procedure has its own problems, and is far from a consistent safeguard of liberty. Inquisitorial systems can also be seen as less adversarial, which can be a disadvantage for those who favour a more combative approach to justice.

Restorative justice and peacemaking have also emerged as alternative approaches to the adversarial system. Restorative justice focuses on repairing harm caused by criminal behaviour, rather than punishing the offender. Peacemaking is based on indigenous traditions of peacemaking and reconciliation that aim to resolve conflicts through dialogue and understanding, rather than through an adversarial process. It involves bringing together offenders, victims, and community members in a facilitated dialogue where they can express their feelings, needs, and expectations. The goal is to reach a mutually acceptable agreement that addresses the needs of all parties and restores relationships. While these approaches have been successful in certain cases, they may not be appropriate in every situation.

These alternative approaches have their own advantages and disadvantages as well as limitations in applicability. They are not meant to replace the adversarial system of justice, but rather to complement or supplement it where appropriate. The choice between different systems of justice depends on the priorities and values of society as well as the nature and circumstances of each case.

Our adversarial system of justice has been widely adopted around the world as a gold standard way of resolving legal disputes. Yes, it has its strengths such as ensuring fairness and equality between parties and allowing them to present their cases freely and fully. However, it also has several significant flaws that can lead to unfair outcomes, especially when there is an imbalance of resources between parties or when oral evidence and cross-examination fail to reveal the truth.

Therefore, we should be cautious about relying too much on this system as our sole means of delivering justice. We should also be open-minded about exploring other systems or methods that may offer better solutions for some cases or situations. Ultimately, we should strive for a balanced and nuanced approach to justice, one that acknowledges both the strengths and the weaknesses of our current system, while also striving for more equitable and just outcomes for all parties involved. We also need a properly funded legal aid system. The simple fact is that our adversarial system of justice is not perfect, but it can be improved and supplemented by other approaches that may better serve the interests of justice and society.