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The “Adversary System”: Rhetoric or Reality?*

Published online by Cambridge University Press:  18 July 2014

Stephen G. Coughlan
Stephen G. Coughlan
Affiliation:
Health Law Institute, Dalhousie University
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Abstract

Our system of justice is generally referred to as an “adversary system,” although this term is used very loosely. At times, the term is used in a technical way to refer to a system with structured rules of evidence, party presentation of evidence, and a neutral decision-maker. At other times, the phrase seems to be given a broader meaning, referring to the way in which law is practised—that hard-headed competitiveness is the proper, and normal, approach. In fact, neither the rules of our justice system, whether criminal or civil, nor the way in which lawyers behave most of the time are best described as “adversarial.” The current situation, in which largely nonadversarial behavior and rules are described as an adversary system, gives rise to confusion and, more importantly, to unethical action. A possible solution is to cease calling our system an adversary one, and to acknowledge that other rules and behavior are more defining.

Résumé

Notre système de justice est généralement qualifié de «système adversaire», quoique l'utilisation de cette expression manque trop souvent de rigueur. Elle est parfois utilisée dans un sens technique pour décrire un système composé de règles de preuve structurées, de parties présentant chacune leur preuve et d'un décideur impartial. En d'autres temps, cette expression semble recevoir un sens plus large, référant alors à la manière dont le droit est pratiqué—cette approche de compétitivité positive constitue l'approche correcte et normale. En fait, ni les règles de notre système de justice et ce, que l'on parle de justice criminelle ou civile, ni la façon dont agissent la plupart du temps les avocats ne sont décrits de façon adéquate lorsqu'on leur accole le terme «adversaire». La situation actuelle, ou plusieurs comportement et règles non adversaires sont qualifiés ainsi, suscite la confusion et, plus encore, des comportements contraires à l'éthique. Une solution possible serait de cesser de qualifier notre système d'adversaire et de reconnaître que d'autres règles et d'autres comportements constituent des aspects plus déterminants de sa qualification.

Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 8 , Issue 2 , Fall/automne 1993 , pp. 139 - 170
Copyright
Copyright © Canadian Law and Society Association 1993

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References

1 See, for example, Linden, A. M., “In Praise of Settlement: Towards Cooperation, Away From Confrontation” (1984) Can. Comm. L.J. 4Google Scholar; Finlay, H. A., “Towards Non-adversary Procedures in Family Law” (1983) 10 Sydney L.R. 61Google Scholar; Rosenberg, M., “Resolving Disputes Differently: Adieu to Adversary Justice” (1988) 21 Creighton Law Review 801Google Scholar; Gerber, R. J., “Victory vs. Truth: The Adversary System and its Ethics” (1987) 19 Arizona State L.J. 3Google Scholar.

2. The suggestion has been made before that the actual practice of law does not conform well to the rhetoric about the adversary system. See, for example, Blumberg, A., “The Practice of Law as Confidence Game” (1967) 1 Law and Society Rev. 15CrossRefGoogle Scholar; Ericson, R. V. & Baranek, P. M., The Ordering of Justice: A Study of Accused Persons as Dependants in the Criminal Process (Toronto: University of Toronto Press, 1982)Google Scholar. However, those authors make their claims for a different purpose. Generally speaking, they do not question that the system ought to be adversarial: rather, their claims are that the behavior of lawyers departs from what it ought to be, and that lawyers involved in criminal justice work effectively abandon their duty to accused clients. My claim is that the system should be defined by a combination of the rules of the system and actual behavior, both of which should lead one not to label it adversarial; however, ethical behavior toward clients is still possible within this system. See the further discussion of this point below, in the section titled “Some Defences of Adversarialism Rejected.”

3. Brooks, N., “The Judge and the Adversary System” in Linden, A. M., The Canadian Judiciary (Toronto: Osgoode Hall Law School, 1976) at 93Google Scholar. The author argues that when the term “adversary system” is used only to distinguish our system from the inquisitorial system, the phrase is “deprived of meaningful content” (p. 93). There are differences within adversarial and inquisitorial systems, and if he means that this use amounts merely to describing our system as “our system,” then the term would be of little use. Nonetheless, the theoretical distinction between adversarial and inquisitorial systems is clear enough, even if in fact many of those systems have moved closer to one another in practice.

4. Phillips v. Ford Motor Co. of Canada Ltd., (1971) 18 D.L.R. (3d.) 641 (Ont. C.A.) at 661 per Evans J.A.

5. See, for example, Luban, D., Lawyers and Justice: An Ethical Study (Princeton: Princeton University Press, 1988) at 56–57Google Scholar: “It is a method of adjudication characterized by three things: an impartial tribunal of defined jurisdiction, formal procedural rules, and… assignment to the parties of the responsibility to present their own cases and challenge their opponents.’” See also Landsman, S., “A Brief Survey of the Development of the Adversary System” (1983) 44 Ohio State L.J. 713Google Scholar. Similar statements can be found in JudgeBorins, S., “Efficient Criminal Procedure” in Canadian Institute for the Administration of Justice, Expeditious Justice (Toronto: Carswell, 1979) at 146Google Scholar, quoting the United States Supreme Court: “The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free” (Herring v. New York, 422 U.S. 852 (1975) at 862); and can also be found in Greenspan, E. L., “The Future Role of Defence Counsel” (1986–1987) 51 Sask. L. Rev. 199 at 202ff.Google Scholar See also Brooks, supra note 3 at 91, who uses the term to describe the first two elements listed here.

6. Lord Brougham (1820), cited in a number of places, including Freedman, M. H., Lawyers' Ethics in an Adversary System (New York: Bobbs-Merrill, 1975)Google Scholar, and Luban, D., “The Adversary System Excuse” in Luban, D., ed., The Good Lawyer (Totowa, NJ: Rowman & Allenheld, 1984)Google Scholar. Freedman cites Lord Brougham to agree with him: Luban questions the morality of the sentiment expressed, but suggests that the statement has “frequently been admired as the most eloquent encapsulation of the advocate's job” (p. 86).

7. Luban, supra note 5 at 12.

8. Ibid. at 57–58. Luban makes a similar distinction between narrow and broad senses of the adversary system, noting that “[w]hen lawyers follow the principles of partisanship and non-accountability in negotiation and counselling as well as courtroom advocacy, and they attribute this to the adversary system, they are speaking of the adversary system in the wide sense. Lawyers often equivocate between the narrow and wide conceptions, appealing to the virtues of adversary adjudication in order to justify ruthless behaviour on behalf of clients in nonlitigation contexts.” Despite this similar distinction, Luban and I are making opposite claims. He suggests that there is no real difference between the way lawyers act as advocates and in their nonlitigation activities—that although business lawyers claim that “the lawyer's role is to work out something that is fair to all parties… hardball maximization of client interests is out of place in such a setting” (pp. 11–12) in fact nonadvocate lawyers are just as adversarial as advocates. My claim, it will become apparent, is that there is a great similarity between the way advocate and nonadvocate lawyers behave, but this similarity lies in the fact that hardball maximization of client interests is as often out of place in advocacy situations.

9. See, for example, Feinberg, K. R., “Mediation—A Preferred Method of Dispute Resolution” (1989) 16 Pepperdine L. Rev. S5Google Scholar; Nader, L., “The ADR Explosion—The Implications of Rhetoric in Legal Reform” (1988) Windsor Y.B. Access Just. 269Google Scholar; Knebel, F. & Clay, G. S., Before You Sue (New York: William Morrow, 1987)Google Scholar; Sharma, R. S., From Small Acorns Do Large Oaks Grow: The Rise of Alternative Dispute Resolution in Canada (Masters Thesis, Dalhousie University, 1990)Google Scholar. See also Canadian Bar Association, Alternative Dispute Resolution: A Canadian Perspective (Ottawa: Canadian Bar Association, 1989)Google Scholar.

10. Part 3, below, discusses the actual settlement figures for criminal and civil cases, but 90% is a reasonable overall approximation.

11. Samek, R. A., The Meta Phenomenon (New York: Philosophical Library, 1981)Google Scholar. Samek places “primary” and “secondary” in quotation marks to indicate that these terms can only be relative. For a discussion of the meta-phenomenon as it relates to the law (rather than to the practice of law), see Samek, R. A., “Fictions and the Law” (1981) 31 U.T.L.J. 290CrossRefGoogle Scholar.

12. This displacement of goals is not necessarily a bad thing: the meta-system could be considered superior. See, for example, Linden, supra note 1 at 6–7: “Going to trial to settle a dispute ought to be regarded as a failure of our legal system, not a success. Rather, a legal system is functioning as it should be when it produces a compromise, making a trial unnecessary.”

13. Negotiation is not adversarialism in the technical sense, although of course it could be an adversary process in the broad sense of the term. I shall argue later that the type of negotiation typical of lawyers is not even adversarial in the broad sense.

14. See, for example, Galanter, M., “Reading the Landscape of Disputes: What We Know and Don't Know (And Think We Know) About Our Allegedly Contentious And Litigious Society” (1983) 31 UCLA L. Rev. 4, esp. at 32–34Google Scholar. See also Luban, D., “The Quality of Justice” (1989) 66 Denver University L. Rev. 381Google Scholar.

15. See, for example, Sharma, supra note 9 at 24, who argues for the superiority of alternative dispute-resolution techniques: “These negotiation almost always assume an adversarial or positional approach. The parties come to the bargaining table saying ‘here are my desires and conditions and if we cannot ultimately reach a consensus favorable to me, I'll see you in court.’ Through heated exchanges and, sometimes, threats, an agreement is forged. However, the settlement which often emerges in litigation cases commonly is the result of one party (i.e. the weaker, less resourceful one) giving in because it has been convinced that a protracted court case will deplete all of its scarce resources.” There certainly are lawyers who insist on being confrontational, but one would want some fairly solid evidence before concluding that the 90% of court cases that never reach trial are settled only through heated exchanges, threats, and the poorer party's giving in despite the merits: the discussion of negotiation strategies below suggests the opposite. No system has an exclusive claim on ethical behavior: contrasting the best case of one system with the worst case of another is not a useful way of discovering their comparative merits.

16. It has been questioned whether alternative dispute-resolution methods are actually an improvement over litigation, precisely because they may do nothing more than produce the same result as a trial: see Luban, supra note 14, and the sources discussed there.

17. “The concept that counsel is the mouth-piece of his client and that his speech is the speech of the client is as unfortunate as it is inaccurate. He is not the agent or delegate of his client. Within proper bounds, however, counsel must be fearless and independent in the defence of his client's rights” (emphasis added). Schroeder, J. A., “Some Ethical Problems in Criminal Law” (1963) Law. Soc. U.C. Special Lectures 87 at 102Google Scholar, cited in Canadian Bar Association, Code of Professional Conduct (Ottawa: Canadian Bar Association, 1987), c. 9 at 40Google Scholar.

18. G. B. Shaw, The Doctor's Dilemma, act 1. See on this point the discussion below under “Some Defences of Adversarialism Rejected.”

19. Though possibly the opposite is not true: being partisan may be a part of being adversarial.

20. To be sure, there is room for disagreement here. Luban, for example, discusses two principles as the justification for the adversary system: the principles of nonaccountability and of partisanship. By partisanship he means that “a lawyer must, within the established constraints on professional behaviour, maximize the likelihood that the client's objectives will be attained” (Luban, supra note 5 at 12). This use of “partisan” ignores the distinction I am trying to draw—to the detriment of the system and any ethical justification for it. Consider, for example, the reason for having a justice system, and the adversarial system in particular. The theory is that the adversary system is most likely to bring all the relevant evidence and persuasive arguments before the decision-maker, in order that the truth, and a fair outcome, are most likely to be achieved. (Other justifications have been offered; see the discussion in Luban, supra note 5, c. 5, or A. Donagan, “Justifying Legal Practice in the Adversary System” in Luban, The Good Lawyer, supra note 6.) Having the parties be partisan by the definition offered here accords well with this intention—I will win if there is more evidence for my side, and so my successful strategy is to bring to court as much evidence for my side as possible. But if we blur the distinction between partisanship and adversarialism, then the strategy changes. If I am not merely to promote my own cause, but also to hinder the other side (since both are part of maximizing the chance of success), then hiding evidence useful to my adversary is as successful a strategy as finding my own—either way, I will have more evidence. At this stage, the meta-phenomenon enters again: the new goal of having more evidence than my adversary has displaced the original goal of bringing all the evidence to court. Concealing evidence is as successful a strategy as bringing evidence to light, and the system would no longer accord well with the justification for it.

21. I will not pursue the ramifications of this distinction completely in this paper, but it seems to me that it is relevant to the ethical justification for the behaviour of lawyers within the adversary system. In the examples mentioned in this paragraph, the first action—purely partisan—is perfectly ethical. The second—aimed only at diminishing the other side's case—is unethical. The latter two examples, which are neither clearly partisan nor clearly adversarial, strike me at least as neither clearly ethical nor clearly unethical. At the least, they fall into the category of actions that Luban describes as covered by “institutional excuses”—actions that depend upon the special role played by the person performing them for their justification. See Luban, supra note 5 at 56ff. It may be that the ethical justification for the behaviour of lawyers in the adversary system works better if “partisan” is given the limited meaning I have proposed, rather than the broad meaning Luban attaches to it. The rule “Do anything legal to find and present evidence in support of your client's case” does have certain advantages over Luban's “Within the established constraints on professional behavior, maximize the likelihood that the client's objectives will be attained” (supra note 5 at 12). My formulation of the rule authorizes lawyers to undertake any actions that will increase the evidence they can provide, with the relatively straightforward limitation of acting legally. Luban's formulation is muddier: in effect, it encourages lawyers to do everything except the things they shouldn't do, with no very clear guidance on what they shouldn't do. Using “the established bounds of professional behavior” as part of the definition of ethical behavior starts to make the argument circular.

22. I wish I knew who said this.

23. Williams, G. R., Legal Negotiation and Settlement (St. Paul, MN: West Publishing, 1983)Google Scholar.

24. Ibid., at 19.

25. Ibid., at 18. In addition, 11% of lawyers failed to show any consistent pattern. This study is interesting in providing an empirical foundation for the view, but other texts on negotiation also suggest that a co-operative approach is best, or at least as good, in settlement negotiations. See, for example, Frascogna, X. M. Jr., & Hetherington, H. L., Negotiation Strategy for Lawyers (Engelwood Cliffs, NJ: Prentice-Hall, 1984) at 69Google Scholar: “Contrary to the way it may be depicted in fiction, most negotiations are based, at least to some degree, on a cooperative process where the emphasis is on compromise and problem solving.”

26. Ibid., at 20–23.

27. Ibid., at 24.

28. Ibid., at 22.

29. Ibid.

30. Ibid., at 29. The authors note the difficulty for new lawyers in knowing “who can be trusted and who cannot.”

31. Heustis, R. S., “Elementary Ethics: Integrity” (1988) 15 Nova Scotia L. News 29 at 29Google Scholar.

32. Blumberg, supra note 2.

33. See, for example, Burns, P. & Reid, R. S., “Delivery of Criminal Legal Services in Canada: An Overview of the Continuing ‘Judicare Versus Public Defender’ Debate” (1981) 15 U.B.C. L. Rev. 403Google Scholar. The authors note the difference in public perception of the effectiveness of public defenders and private lawyers: a difference not supported by independent studies of their effectiveness.

34. Frascogna & Hetherington, supra note 25 at 34–35 define a co-operative approach to negotiation as “softball,” and suggest that “[a]t first glance, softball seems to be nothing more than a euphemism for weakness, appeasement, and problem avoidance.” They also list among the disadvantages of the technique that it “establishes a weak negotiating image with fellow attorneys” and “displays an image of weakness to the client” (p. 41). Similarly, Galanter, M., “A Settlement Judge, Not a Trial Judge: Judicial Mediation in the United States” (1985) 12 J. of Law and Society 1 at 4CrossRefGoogle Scholar, notes “the frequent judicial observation that counsel are unwilling to initiate settlement discussions for fear of betraying weakness.”

35. In addition to the results in Williams, supra note 23, see Craver, C. B., Effective Legal Negotiation and Settlement (Charlottesville, NC: Michie, 1986) at 64Google Scholar: “Advocates who approach bargaining sessions in a combative, trial-like manner will usually be unable to obtain all of the information they will need to possess before they can hope to achieve optimal results.” Also at 87: “The best negotiator is not an advocate. The best negotiator is a man who could perform the role of mediator in the negotiations if he were called upon to perform that role” (quoting former U.S. Supreme Court justice Arthur J. Goldberg).

36. See the discussion of this point in Galanter, supra note 34, and in Galanter, M., “Compared to What? Assessing the Quality of Dispute Processing” (1989) 66 Denver U. L. Rev. xiGoogle Scholar: Baruch-Bush, R. A., “Defining Quality in Dispute Resolution: Taxonomies and Anti-Taxonomies of Quality Arguments” (1989) 66 Denver U. L. Rev. 335Google Scholar; Luban, supra note 5.

37. Williams, supra note 23 also notes that it is difficult for even the most competent negotiator to reach a reasonable settlement if she is not also a competent trial lawyer: in judging the strength of her case, she is required to take into account her own weakness in court.

38. There are other arguments to suggest that the technical definition of the adversary system does not accurately describe the practice of law. For example, although the judge is generally to be passive, it is accepted that in some circumstances (where a defendant, especially a disadvantaged defendant, is unrepresented, for example, or where a child witness is involved) it is appropriate for her to take on a more active and interventionist role. One could equally well mount an argument that there are significant nonadversarial elements in the role of judges, or in other aspects of the justice system; see, e.g., Sward, E. E., “Values, Ideology, and the Evolution of the Adversary System” (1989) 64 Indiana L.J. 301Google Scholar. However, I shall not pursue any of these arguments, since my concern is the behavior of counsel.

39. Boucher v. The Queen, [1955] S.C.R. 16 at 23-24.

40. R. v. Stinchcombe, (1991) 8 C.R. (4th) 277 (S.C.C.) at p. 283–289.

41. Canadian Bar Association, Code of Professional Conduct, supra note 17, commentary 9 to rule IX.

42. See, for example, Lilies, H., “Some Problems in the Administration of Justice in Remote and Isolated Communities” (1990) 15 Queens' L.J. 327 at 340Google Scholar, suggesting that Crown attorneys in the Yukon and Northwest Territories “appear to be reluctant to exercise any significant prosecutorial discretion.”

43. See, in particular, Report of the Commission of Inquiry into the Prosecution of Donald Marshall, Jr. (Halifax: 1989)Google Scholar, finding 1.4, and R. v. Stinchcombe, supra note 40.

44. MacKaay, E., The Paths of Justice: A Study of the Operation of Criminal Courts in Montreal (Montreal: Groupe de recherche en jurimétrie, 1976) at 36Google Scholar.

45. See Canada, Policy, Programs and Research Branch, Research and Statistics Section, Department of Justice, Some Statistics on the Preliminary Inquiry in Canada (Ottawa: Department of Justice, 1984) at 33Google Scholar, which found that 25% of the charges in the study were stayed or withdrawn, compared to a 6% acquittal rate. See also Canadian Centre for Justice Statistics, “Processing Time in Youth Courts, 1986–87 to 1989–90” 11:4 Juristat 1 at 11, which shows the number of charges stayed or withdrawn in the four years studied ranging from 20.9% to 24.0%, while the number of dismissals or finding of not guilty range from 5.3% to 5.7%.

46. Charges may have been stayed with the intention of relaying them at a later time, for example.

47. A similar example, though one where the benefit to the accused is less obvious, concerns preliminary inquiries. In principle, one would expect lawyers who are trying “to save that client by all means and expedients” (see note 5) routinely to try to use preliminary inquiries as a way of having their client not face trial. In fact, 52% of the time an accused is committed for trial at the preliminary by consent, and a further 40% of the time the defence consents to the admission of some of the Crown's evidence. Only 6% of the time is a preliminary inquiry fully contested. See Some Statistics on the Preliminary Inquiry in Canada, supra note 45 at 24–27.

48. But see the discussion below, under “Some Defences of Adversarialism Rejected,” for the ethical implications of this observation.

49. But the Canadian Bar Association Code of Professional Conduct, supra note 17, commentary 12 to rule IX, allows plea bargaining only where the client is prepared to admit guilt, and so some sentence is inevitable.

50. Ericson & Baranek, supra note 2 at 117. This study is discussed at greater length below, under “Some Defences of Adversarialism Rejected.”

51. Canadian Centre for Justice Statistics, “Preliminary Crime Statistics—1989,” 10:9Juristat at 2Google Scholar indicates that in 1989, approximately 90% of Criminal Code offences reported by the police were property crime (59.5%, the majority of which was theft under $1,000) or other crime— “i.e., mischief, disturbing the peace, bail violations” (30.3%).

52. Some Statistics on the Preliminary Inquiry in Canada, supra note 45 at 66–67 indicates that, in provincial court, a “not guilty” plea is entered only 18% of the time.

53. One cannot make direct inferences about the tasks counsel perform from the statistics on crime. Some counsel restrict themselves to more serious cases. More importantly, the less serious the offence, the less likely it is that an accused person will have counsel: many guilty pleas to minor offences will be entered by the accused personally. Nonetheless, particularly given the existence of legal aid schemes, it seems reasonable to expect a general correlation between the crime statistics and the role of counsel.

54. An interesting question, which deserves more attention on its own than is appropriate in this paper, is the question of the effect of legal aid systems on the adversary process. The types of cases handled vary from province to province, though the impact of legal aid is greatest in the area of criminal law. Legal aid systems vary, with some provinces adopting a “clinic” or “staff lawyer” model, while others adopt a “judicare” system, allowing individual clients to choose a private lawyer who will be paid by the province. An overview of the literature comparing the two major models for legal aid is undertaken in P. Burns & R. S. Reid, supra note 33. Two suggestions from that article are of particular interest for these purposes. First, in general there is a perception by clients that public defenders are more likely to be “cozy” with the prosecution and less likely to do a good job from the client's perspective. This view leads the clients to be less trusting and less satisfied with public defenders. Second, although it is difficult to judge, empirical studies suggest that in fact there is no difference in the quality of service provided by the two systems. It is possible that the relationship between legal aid lawyers and Crown prosecutors is different from that between private counsel and Crown prosecutors, though there is no clear evidence to that effect. It is also possible that any difference in relations between counsel is more attributable to regular, close contact of a small legal community than to the funding arrangements for the lawyers. One would expect that any group of lawyers who work regularly together will develop a relationship that transcends the representation of individual clients; see the discussion below under “Some Defences of Adversarialism Rejected.” This would be true whether the lawyers involved are public defenders and Crown counsel, a group of lawyers who regularly practise family law, or some other subset of the local bar who are in frequent association.

55. The Divorce Act, S.C. 1986, c. 4, s. 9.

56. See Beson v. Director of Child Welfare of Newfoundland, (1982) 30 R.F.L. (2d) 438 (S.C.C.); Racine v. Woods, (1983) 36 R.F.L. (2d) 1 (S.C.C.); King v. Low, (1985) 44 R.F.L. (2d) 113 (S.C.C.); Vignaux-Fines and Fines v. Chardon, (1987) 9 R.F.L. (3d) 263 (S.C.C.).

57. See, for example, Foote v. Foote, [1988] B.C.J No. 278, cited with approval in R. v. Khan, [1990] 2 S.C.R. 531.

58. Supra note 17, rule IX, commentary 2(a).

59. Finlay, supra note 1, relies on similar observations to justify the call for non-adversarial procedures in family matters. See also Bishop, T. A., “The Litigation Process: Its Effective Utilization and Avoidance” in McLeod, J. G., ed., Family Dispute Resolution: Litigation and its Alternatives (Agincourt, ON: Carswell, 1987)Google Scholar.

60. I do not mean to suggest that counsel will not be taking instructions from her client in these negotiations. At the same time, the client is generally only able to give instructions based on the advice received from counsel. Further, “the lawyer should advise and encourage the client to compromise or settle a dispute whenever possible on a reasonable basis” (Code of Professional Conduct, supra note 17, rule III, commentary 6), and “the refusal of the client to accept and act upon the lawyer's advice on a significant point might indicate such a loss of confidence [as to justify the lawyer's withdrawal]” (rule XII, commentary 5). For a discussion of the appropriate balance in this situation, see Rosenthal, D. E., Lawyer and Client: Who's in Charge? (New York: Russell Sage Foundation, 1974)Google Scholar.

61. R. v. Stinchcombe, supra note 40 at 282. See also Sward, supra note 38 at 329, where she argues that discovery proceedings are sometimes abused and used as an adversarial weapon “because discovery is anomalous in an adversary system. It is, in fact, a nonadversarial element in adjudication.” See also Glaser, W. A., Pre-Trial Discovery and the Adversary System (New York: Russell Sage Foundation, 1968)Google Scholar.

62. See rule 41 A.09. The plaintiff recovers costs from the date of the offer. To similar effect, see Ontario's rule of procedure 49.10.

63. See Code of Professional Conduct, supra note 17, commentary 8 to rule IX and commentary 5 to rule XII.

64. Ibid., commentary 6 to rule III.

65. Ibid., commentary 2(a) to rule IX.

66. Ibid., commentary 7 to rule IX.

67. Ibid., commentary 3 to rule XVI.

68. Shaw et al. v. Nickerson, (1850) 7 U.C.Q.B. 541 at 544, quoted in footnote to commentary 3 to rule XVI.

69. Code of Professional Conduct, supra note 17, commentary 7 to rule IX.

70. In this regard, see Landsman, S., “The Decline of the Adversary System and the Changing Role of the Advocate in that System” (1981) 18 San Diego L. Rev. 251Google Scholar, where it is argued that the American Bar Association Model Rules of Professional Conduct, by imposing rules similar to those discussed here, “challenge” the premise of the adversary system.

71. Code of Professional Conduct, supra note 17, commentary 2(h) to rule IX.

72. The percentage would be below 2% if one looked to all cases where a statement of claim, but not necessarily a defence, was filed. The study took a random sample of 2,761 statements of claim, filed in 1986 in Toronto, Windsor, Waterloo, Peterborough, and Sault-Ste Marie. Defences were filed in only 1,096 of those cases, and only 40 resulted in trial (as of June 30, 1990). Of the cases, 2,093 were known to have been disposed of in some way (through default judgement, notice of discontinuance, trial, settlement, or dismissal), while 668 (of which 197 had a defence filed) were simply left undisposed. (Information drawn from telephone conversation with John Twohig of the Ontario Court Reform Task Force.)

73. See the discussion above, section titled “The Gap Between Theory and Practice.”

74. Rondel v. Worsley, (1969) 1 A.C. 191 at 227, noted in the Code of Professional Conduct, supra note 17 at c. IX, commentary 1) and the Nova Scotia Barristers' Society, Legal Ethics and Professional Conduct, c. 10, Guiding Principle 1(a).

75. I have heard it suggested, but have no evidence, that lawyers in large centers are less likely to behave in these co-operative ways because it is the norm rarely to conduct more than one case with any other lawyer.

76. A. S. Blumberg, “The Practice of Law as Confidence Game,” supra note 2 at 19–20.

77. Ericson & Baranek, supra note 2.

78. Ibid. at 117.

79. Ibid. at 119 (references omitted).

80. Or at least the criminal justice system: Ericson and Baranek's study does not look at civil litigation practice. It does not seem likely that the same behaviour would be found in that area: private lawyers dealing with each other will not generally be at the same disadvantage as private lawyers dealing with a monolithic institution, upon which they are largely reliant.

81. Ibid. at 170, and, generally, c. 3.

82. Ibid. at 170, and, generally, c. 4.

83. Ibid. at 151.

84. Ibid. at 169–70.

85. Firak, N. L., “Ethical Fictions as Ethical Foundations': Justifying Professional Ethics” (1986) 24 Osgoode Hall L.J. 35Google Scholar is an interesting discussion oflegal ethics, considered through the vehicle of the Tom Stoppard play Professional Foul. The play deals in part with a football player who deliberately fouls an opposing player to prevent a sure goal. In one sense, the player merely broke the rules. In another sense, however, he acted in accordance with expected and appropriate behavior (he is praised by some supporters of his team), since risking the penalty kick that would be awarded for the foul was a better strategy than allowing the goal to be scored. The notion that some types of violations of the rules are anticipated—part of the unwritten rules—is consistent with what I am arguing. The question is whether one can change those unwritten rules, which is part of the goal of choosing not to label our system an adversary one.

86. Luban, supra note at 51.

87. Sward, supra note 38 at 329.

88. Borins, supra note 4 at 146.

89. See Rosenberg, supra note 1 at 816: “Then, there are the lawyers. Their training has schooled them to believe first, last and always in litigation and the adversary process. They think real advocates don't give ground when their client has a just cause; and that covers almost all cases, and both sides of them.”

90. S. Wolf, “Ethics, Legal Ethics, and the Ethics of Law” in Duban, The Good Lawyer, supra note 6 at 59, note 10 argues that “among experts there seems to be a tacit understanding that the code is to be read cynically.” One hopes that the same observation is not true of Canada. If it is, the problem is at least partly attributable to a mistaken belief that being adversarial is the highest aim of a lawyer—the attitude that “we know what the rules says, but we also know how the game is really played.”