Oregon State Bar Bulletin — APRIL 2011
Parting Thoughts
The Adversary System:
What Happened?

By Peter M. Appleton

I was watching a football game on television recently. A receiver attempting to catch a pass came up short and the ball hit the ground, but just barely. The player rolled over on the ball and then held it up in his hand trying to convince an official that the catch had been made.

A commentator I listen to often attempts to make a distinction between athletes who’ve cheated by taking performance enhancing-drugs (drugs which were not actually banned at the time) and those who cheat by attempting to convince officials that balls were caught when they were not or tags were made when they were not. That purported distinction eludes me. It seems to me that cheating is cheating. Having said that, I want to turn to the question of whether lawyers are expected to cheat.

According to Arizona Court of Appeals Judge Rudolph J. Gerber, lawyers are not only expected to cheat but they are obligated to do so:

Cross-examination — that most powerful engine of eliciting truth — is also used to obscure the truth. Wigmore called the witness stand the slaughter house of representations. The decimation of a witness still remains a favorite trial tactic. An attorney is obligated, according to Dean Monroe Freedman, to attack, if he can, the reliability and credibility of an opposing witness who he knows is telling the truth. Such, we are told, is part of the excellence of the adversary system. Even respectable lawyers strive to perfect techniques of insult and innuendo to confuse and intimidate witnesses.

But then, how do we reconcile our obligation to cheat, namely to push our client’s claims as far as we can; to stretch the law and the facts as best we can in order to convince a judge or a jury that our client should prevail regardless of whether we believe that our client’s position is just, with the obligations imposed on lawyers to do the “right thing”? In the words of ethics guru Geoffrey Hazard:

Lawyers forgot or were too young to have ever learned the lessons of the great depression, mainly that speculative bubbles always burst sooner or later and banks easily can fail. In the 1980s older attorneys, who were cautious by habit and training, were seen as old fashioned and unable to keep up with the times. All you heard was that the attorneys had to give their clients their undivided loyalty. Those of us who held complex views of lawyers’ obligations were disparaged and vilified.

A similar message comes from another ethics expert, my law school classmate Michael Josephson, who told an audience of lawyers at an ABA program in Arizona that a lawyer negotiating with another lawyer should make full disclosure of what he or she knows. I question that. I agree that a lawyer should not misrepresent facts, but full disclosure? Give me a break. Whatever happened to the adversary system?

Another voice is that of former Man- son Family prosecutor Vincent Bugliosi writ- ing about the conduct of the lawyers def- ending O.J. Simpson against murder charges:

… What I am very critical about is the way several of them (defense counsel) went about [defending Simpson]. It’s one thing to defend someone you know is guilty, even defend him vigorously.

But inasmuch as the defense lawyers had to know Simpson was guilty… I personally wonder how they could possibly have found it within themselves to go far beyond a vigorous representation, defending him with the same passion and fervor with which one would defend his own parents, wife or children who were being charged with a serious crime.

Personally, I think Bugliosi is wrong. I believe that a lawyer is free not to accept the defense of someone he or she believes is guilty. However, I find incredibly dangerous the proposition that a lawyer can accept the representation of a client and then sacrifice that client’s case for the sake of some element of society, regardless of what that client is alleged to have done. Shouldn’t the bar require that a client who hires such “moralistic lawyers” be advised in writing that his or her lawyer is going to decide whether to defend him or her zealously or whether the lawyer intends to assist the prosecution depending on what the lawyer believes the client did so that the client can choose whether he wants to engage that lawyer?

How far does a court’s obligation to ensure fairness go? Must a court ensure mediocrity by leveling the playing field to help a poor lawyer? Or should a court not reward a litigant with a very good lawyer by letting him or her best an opponent?


Peter M. Appleton is a sole practitioner in Salem. He is a former president of the Beverly Hills (California) Bar Association, former trustee of the Los Angeles County Bar Association, a former chair of the California State Bar Conference of Delegates and a member of the California State Bar Judicial Nominees Evaluation Committee. Reach him at (503) 585-0105.

© 2011 Peter M. Appleton

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