Introduction to Law - Essay Example

?01: Summary Davies, G. posed questions with regards to two basic assumptions on which, it is likely that the civil justice system has its footing. The first relates to the trial process: as soon as trials proceedings are instituted, the foremost way is to resort to trial by judgment. The second assumption states that the best which in which a dispute can be settled is by legal challenge between opposing parties. He does not uphold one assumption to be better than the other. He however has the viewpoint that these assumptions are simply the outcomes procedures as well as practices contained with a legal system. There should not be any further assumption in a trial and judgment process. Rather it is supposed to take for granted in addition to supporting previous resolution, whether by resolution or some summary means. This should not be exclusively left to judges, without being backed up by legal rules to advocate that the best way to settle dispute is to opt out of the trial process into alternative depute resolution. Opposing parties should not be left to themselves. It therefore becomes urgent of the legal system to effectuate a means through which any settlement will be achieved at its maximum. This will to a greater extent, reduce the amount of trials. The second assumption upholds the view that the most effective way of settling a dispute is by permitting the opposing parties to go to court. If therefore a trial has to be set into motion, there should be a traditionally adversarial method in which all opposing parties are given equal opportunities with regards to establishment of facts, discovery of evidence and production of witnesses. If this is effective, the trial process will not be wanting of a fundamental principle of fair hearing, although opposing parties may have unequally bargaining powers. The truth is that authenticity of facts or opinion will be distorted and parties will bear enormous costs where bargaining powers of litigants are not at par. There is need for reform. But reform should be more feasible moving from an adversarial to inquisitorial system because this will “alter lawyers’ conduct within the existing system, a task which…is less productive and more difficult than changing the system”1. It is thought of that changing the existing conduct of lawyers will mean that there will be an ascendant of more settlements. Should this be a problem? It may be impossible to completely cause trials to vanish. But it is true that the rates at which trials are brought to court will gradually diminish. Remember that litigants will be more aware of the benefits over which settlement has over trials. Therefore, settlement out of court should not be discounted by the courts. The court should egg on litigant to settle their disputes out of court. This will even be more effective when there is disclosure of facts earlier to the settlement. Remember that settlement without earlier disclosure of important facts will render the settlement unfair. 02 How do you think moving to an inquisitorial system would address some of the criticism raised by the author? The criticism raised by the author relates to disclosure in of evidence and eventual cost of litigation. To begin with, the adversarial method is a method which affords the parties and the counsels a great deal of absolute control over the manner in which facts and opinions are collected and tendered. Maybe, the best way to understand the adversarial method is by reference to what transpired in Whitehouse v. Jordan2. Civil litigation is without doubt, a classic illustration of the adversarial system. The process calls for neutrality between all parties to the case. Keep in mind that neither side of the opposing camp is obliged to make known more of its evidence before the trial than the other side. It is however, the plaintiff who bears the greatest burden of proof and this is on the balance of probabilities. Remember that this is a standard which is of no benefit to all parties. The character of the inquisitorial method is found in the fact that the courts or some other adjudicating body has the monopoly of maintaining complete control over the trial process. This particularly relates to the manner in which evidence is collect and tendered. A better understanding of how the inquisitorial method works is by reference to the case of Ex p Moore3. In subsequent cases involving situations in which the courts, similar to the arena in Ex p Moore4 find themselves arriving at decisions which call for election between the adversarial and inquisitorial methods5, the courts have emphatically reemphasized that the this principle of natural justice cannot be applied in the same manner to an inquisitorial proceedings, as it would be applied to an adversarial proceeding in civil litigations. With the adversarial system, the concept of constant mutual disclosure of facts and opinion at the initial stage in the course of dispute resolution has not been consistent with the way civil justice is supposed to function. This is equally true with regards to cost, be it within a trial system or in the course of any agreement6. The very fact that the dispute resolution process is still controlled by the parties or by their lawyers, it still remains adversarial in nature. One of the first problems related to discovery of information goes to the issue of prelitigation discovery, the second is to call for a swap of witness statements; the third is to border discovery of documents to documents which are openly relevant to issues raised in the pleadings and the last is to limit interrogatories to only those cases in which the court is convinced that another logically easy and cheap way of establishing the matter sought to be brought forth will not be accessible to the applicant during the trial There have seen significant moves into the direction of the inquisitorial system, the first issue of such reforms is to encourage parties to dissuade from trials, while making the settlement process fairer to all parties. All other features of the reforms should be meaningful. Remember that exchange of witness statements by making certain that earlier and more valuable information exchange or the reduction of cost is more probable that the outcome of disputes will benefit all litigants. Keep in mind that the more the costs increase, the less likely that litigants or opposing parties will elect out of court settlement. What obtains in the adversarial system is that parties are really bent on opposing. This is the more reason why witnesses are selected on the basis of being of utmost help to win and win at all cost. Remember that most witnesses are selected because it is thought that their testimonies will lend support to the cases of the parties who call them; not because it is considered that the testimonies will help the court in arriving at what is fair and equitable. Therefore, witnesses are more of witnesses to the parties, rather than witnesses to the courts. This is equally true of expert witnesses. Even in cases of settlements, such distortion makes it more difficult for the parties to arrive at a fair settlement. Moving into an inquisitorial method will solve this problem. This is because evidence could be obtained in a less partisan manner and this will make the evidence objectively truthful. One way to resolve this problem is by permitting extent witnesses to discuss, but not together with the lawyers, to produce a unified and wholesome report in which they are of the same opinion as well as where they differ and reasons for being in the position where they are. It is generally believed that this will remove much of the biases caused by the adversarial system. The inquisitorial system has also brought in reform whereby compulsory early exchange of pertinent information is ordered in addition to the obligation of bearing the cost of proceedings if it is established the reasonable offer of settlement was rejected. Regarding reasonable offer of settlement, an offer of settlement must involve an absence of authoritative consent. That is, lawyers or other representatives of clients should not resort to settlement that will be more to their favor than that of clients. Better still, the settlement should be in a manner that if clients were left to decide, they would have strongly opted for settlement. What should be extremely worthy of note is that moving from the adversarial system to the inquisitorial system has proven to be more productive and easier to make meaningful alterations in civil justice system. This is easier than if we have to attempt to change the conduct of lawyers in an adversarial system. However, the inquisitorial system must focus on achieving cost effective and efficient means to help the parties arrive at what is reasonable fair and equitable to both sides. The inquisitorial system advocates for proportionality. That means that the expenditure of dispute resolution ought to be relative to the value in dispute as well as that the cost efficiency of a resolution ought to be reasonable when compared to the risk of not be fair. If settlement is not fair, then there should be nothing to talk about arriving at a cost effective solution. To compare and arrive at what is fair, concessions will be made and it is such concessions that make moving into the inquisitorial system sound more probable. There is equally an advantage of moving from the adversarial methods into the inquisitorial method in that the apparent control by the courts will limit any eventual cost as well as delay. This is particularly important in a case in which there is dispute about a relatively small sum has to be decided by the courts. This is the more reason why so much disputes of this nature will either be left for settlement, but probably after much investigation has been arrived at. It should be noted that this trend towards adopting the inquisitorial method in opposition to the adversarial method is bound to have a right of way for the simple reason that government as well as litigants are ever more seeking effective ways to solve disputes. With the involvement of the states, the state can institute a mechanism for seeking redress and conditions for ascertaining who can benefit from it. Perhaps, with the inquisitorial method, more dispute can be totally steered clear of and as Lord Justice Lawton suggested in Whitehouse v. Jordan, mishaps “should be cared for by the community, rather than by the hazards of litigation”7 Therefore, it seems as this will be a pity on the part of lawyers if they find it difficult or not capable to alter their positions and move away from their adversarial attitude, while contributing to make positive developments on this new approach, moving into the inquisitorial method. Read More