A practicing lawyer for 39 years, Kubicek here attacks the American adversarial system of criminal justice as a system that allows too many of the guilty to escape unpunished and urges the adoption of an inquisitorial system in which all parties are enjoined to seek the truth, thus eliminating what he sees as the contradiction between attorney\'s duties to serve as a zealous advocate and their duties as officers of the court. Other recommendations include eliminating attorney-client privilege, eliminating exclusionary rules concerning illegally obtained evidence, and putting "voir dire" and jury selection entirely in the hands of judges.

The book, Adversarial Justice: America's Court System on Trial by Theodore L. Kubicek, raises many issues of the highest importance and from a variety of perspectives which many such works do not.

Iowa lawyer Ted Kubicek, a seasoned veteran of legal warfare, though mostly in probate, has written an interesting book, Adversarial Justice: America%u2019s Court System on Trial, about the defects in the American system of adversarial justice. That system, as most lawyers and many of their clients know, puts a premium on winning and sees the pursuit of justice as a %u201Ccontest%u201D involving warriors leading the charge on each side.

The original goal of the adversarial ideal rested in the notion that each side should have a chance to present the strengths of its own case as well as the weaknesses of the opposition. Lofty as that goal may be in theory, it has degenerated too often into legal gamesmanship in tricks of discovery and trial tactics that weaken the prospects of getting to the truth.

As Dr. Kubicek's many quoted authorities note throughout the book, the adversarial system puts too much emphasis on zeal for the client and too little on presenting truth to the court. The author joins others in suggesting that lawyers' ethics might well be revised to place primary emphasis on a duty to the court and only a secondary duty to the client.

The book has the same strength and weakness in its repeated citing of quotations from other lawyers, law professors and judges (especially retired NY Judge Rothwax): the weakness lies in the repetitive nature of these quotations, but their strength rests in emphasizing the agreement among legal scholars that something needs to be done to restore truth-seeking to the adversary process.

The concluding chapter fleshes out the author's suggestions for change, none of which is especially new but each of which deserve serious attention by those overseeing this system before arbitration and mediation render the adversarial trial a dinosaur. The 200 page text is easily readable and might serve well in a paralegal course or as a companion volume in a legal ethics course in law school.

Adversarial Justice: America’s Court System on Trial, by Theodore (Ted) Kubicek, is a refreshing and alarmingly candid scrutiny of the American bar and the American sys­tem of justice, and what we can do to reform the broken system.
This book should be required reading in all law schools. Because of its clarity, it also warrants being on the ‘must reading’ list of the layper­son, who has long sensed that some-thing is seriously wrong with the American justice system, but also wonders specifically what—apart from the interminable delays and prohibitive costs incurred in seeking justice—is wrong and what can be done about it. Further, the perusal of this brilliant and courageous critique should be considered imperative for legal practitioners, most of whom are fully aware that something is broken, if not indeed ‘rotten,’ in the state of their chosen profession.
The author’s own experience is instructive:

During my forty years practicing law, I avoided the field of battle known as the courtroom as much as possible as I soon became disenchanted with the adversarial system of justice....I have long hoped the judicial system would change, a useless wait so far, although a
few, mostly judges and law professors, have questioned the system. These writ­ers have been largely ignored by the organized bar. (p. 5)

Kubicek and his sources identify some of the problems with our adversarial system. Chief among them is the fact that the process, as the word ‘adversarial’ suggests, is not consensual and collegial between the parties, but contentious. The court-room is described as a scene of bat­tle. And Kubicek reminds us that

while most comments throughout this book seem to apply to our criminal sys­tem, keep in mind that the adversarial system applies equally to our civil pro­cedure. Whether it is a criminal or civil case, all parties—plaintiffs, prosecu­tors, and defendants alike—desire to win. (pp. 54-55)

Elsewhere, he notes that where the remuneration of attorneys, in civil cases, is based upon a percentage of the award of the court, there is even further incentive to win. And win­ning—whether in civil or criminal cases—being the supreme objective, unfortunately, means winning at vir­tually all costs—constrained, at best, only by very ambiguously and loosely defined professional guidelines and, not infrequently, greatly stretched interpretations of both statutory and constitutional law. This means that truth, itself so integral a part of the inquisitorial system, is jettisoned, except where it conveniently does not interfere with the objective of winning. Kubicek observes that, within the “game-playing” rules of the adversary system, “No lawyer deemed [worthy of her salt] would engage in a trial with an attitude of not winning. . . .Truth [being too elimination of that clause in the Fifth Amendment of the U.S. Constitution that provides that no person “shall be compelled in any criminal case to be a witness against himself.” This privilege has never applied to civil cases.
To those who argue that the defen­dant’s rights to the strongest possible defense of his innocence, even when guilty of the charges against him, are violated when confidences are revealed, Kubicek’s answer is a sim­ple one based solidly on the princi­ple of fairness, or justice, as the only ultimate and justifiable objective for an officer of the court:

The goal of trial lawyers should not be to win, but rather to make certain that both parties receive exactly what they deserve. . . .If clients are not liable or guilty as alleged, then no earthly rea­son exists for the keeping of their secrets. On the other hand, if clients are in fact liable or guilty as alleged, then keeping their secrets is in direct conflict with the interests of a civilized society. (p. 92)

And:

[the] secrets of one party should be of no more importance than the welfare of the opposing party or of society in general. Protecting clients from what they justly deserve is not a valid reason for secrecy....The attorney’s hiding of facts from the court should always be considered unethical and a cause for sanctions. (p. 186)

Avoiding trial

What Kubicek hopes to see emerge is a system in which most disputes will not even get to a trial, or even a pre-trial, stage. Judge Richard Neely sug­gests that “at every point [the system will be] designed not to process liti­gation but to reduce the need for lit­igation at all.” (p. 157) Law school curricula will be revamped to turn out attorneys who have the interper­sonal skills that should characterize what one should appropriately asso­ciate with a ‘counselor’ at law and the ability to recognize, in the words of former President of the ABA Robert Grey, Jr., “when mediation, negotiation and arbitration—or more innovative methods like sum-often obstructive of this goal] becomes irrelevant.” (p.19)
The same ABA Rules that suggest that attorneys have an obligation to act as officers of the court also emphasize their responsibility to win and, therefore, to “zealously advo­cate” for their clients. Kubicek makes it clear that you can’t have it both ways. The Rules are, indeed, replete with inconsistencies, ambiguities, and loopholes. Presumably, an attor­ney who acts in the spirit of being an officer of the court and thereby is deemed insufficiently zealous in advocating for his client could be punished for his laxity.
In their attempt to win at all costs, under the rules of adversary justice, lawyers employ a practically endless repertoire of tricks. “The adversarial trial system,” Kubicek says, “opens wide the doors to all kinds of irrele­vant but successful trial tactics on the part of defense counsel.” He cri­tiques all of these adversarial devices, and more, proposing that there are a few procedures in the adversarial sys­tem that, if not abused, can be retained in a more inquisitorial approach, many that must be signifi­cantly curtailed, and still others that simply are so inconsistent with the pursuit of truth and justice, at least in contested cases (that is, in all crim­inal and some civil cases), that they must be eliminated.

Attorney-client privilege

Chief among the latter is the attor­ney-client privilege. According to this principle, what a client reveals to his attorney—assuming that that information comes to the attorney originally from his client—must be regarded as a secret between the two of them unless the client, by informed consent, permits the reve­lation of that information, or is for the client’s benefit . . . even though such secrecy could do harm to a third party or to society in general. Kubicek insists “it is [this privilege] that prohibits ultimate truth, and therefore justice, in the courtroom.” He makes a compelling case for the elimination of this privilege even if it would entail, as some argue, the mary jury trial—are the best use of resources to achieve a just solution.” (p. 170) An increasing number of lawyers now participate in a process called ‘collaborative law,’ in which, according to Steven Keeva,

parties come together for the sole pur­pose of resolving disputes [in civil cases]—out of court and with all infor­mation shared among lawyers and clients. What makes this possible is the fact that collaborative law practitioners forswear litigation and sign agreements to that effect. If the case cannot be set­tled and the clients decide they want to litigate, they have to find other lawyers to represent them. This setup creates such a strong incentive to reach agree­ments that the collaborative process is overwhelmingly effective. (pp. 177-178)

Informal, transparent procedures

The inquisitorial trial court system, for those cases that finally must go to court, would be characterized by procedures far more informal and transparent than what we are famil­iar with in our present adversarial system. According to Kubicek, all information and facts relating to the case would be on the table, fully available to all officers of the court including both the prosecuting (or plaintiff) attorney and the defense attorney.
In the inquisitorial trial court, there would be far more interaction among all the court officers—judge, jury, and attorneys. No longer would the discovery and presentation of evi­dence be left primarily to the attor­neys. Judges, who now are largely constrained from active involvement because of their fear of having their interventions and applications of procedural law appealed, would be protected in their freedom and responsibility to manage their courts. They would be expected to keep the attorneys focused on their proper common task of seeking truth and justice, and to exercise their authority to sanction the attor­neys where they impede that process.
They would also, from the outset of the trial, actively keep the jurors informed. Kubicek says that under the inquisitorial system there would probably be far fewer jury trials, although litigants would be assured of their right to a jury trial. The jurors themselves would be selected by a process that, unlike the present system, does not permit the attorneys to select jurors who appear to share their biases and who, generally, dis­play little knowledge of the world around them. Jurors would also be permitted to take notes during the trial and to discuss the events of the trial during their daily recesses.
In many respects the inquisitorial process would resemble the present European court system—specifically, by allowing much more to be brought before the court, even some hearsay evidence, instructing the jury that assumptions about the defendant’s guilt are valid to the extent that she refused to testify on her own behalf, not permitting con­fidentiality between lawyer and client, and—importantly—not hold­ing evidence from the court even when it has been illegally obtained. If law enforcement officers violate search and seizure protections in the process of obtaining evidence, it makes much more sense to punish the officers as a means of deterring further violations of that sort than to assume that impeding the process of justice will be justified if it accom­plishes that same result.

Is reform possible?

Given all the resistance to major reform of our judicial system, the dif­ficult question is: How can this possi­bly be accomplished? The author quotes Elliot Bien: “Bar associations are an ineffective means to correct deficiencies in our judicial system; it will be up to the judiciary to do so.” (p.128) It would appear that he agrees with this statement, although he also clearly recognizes that, since the eminent Roscoe Pond voiced his severe criticism of America’s judicial system a full century ago, not much reform has been accomplished by the judges or by anyone else.
The author maintains that “up to now, no one has comprehensively analyzed what needs to be done” to effect the necessary transformation and, thereby, “to make America’s judicial system consistently more trustworthy, thus more reputable.” (p. 2) Now that Ted Kubicek has bril­liantly provided that comprehensive analysis, he has taken for us a giant first step on what must be a long and difficult journey. We can only hope that, one by one, not only judges, but increasing numbers of the rank and file from the over one million attor­neys in America today, will take up this book and follow him on the path he has laid out for an urgent and major reform of our broken system of justice.