What effect will potent new legal tech tools have on the civil litigation landscape, and what can or should we do about it? Recent trends in plaintiff win rates and damages awards suggest the American civil justice system is growing more slanted toward the “haves” at the expense of the “have-nots.” Some say that AI-fired legal tech tools will reverse this trend and democratize the system. We disagree. Potent new legal tech tools are surely coming. Many are already here. But these tools are, and will likely continue to be, unevenly distributed because of the privileged access to data and technical know-how of emerging consortia of corporations, law firms, and tech companies. As a result, legal tech will, at least over the near- to medium-term, further skew the litigation playing field, shaping not just the resolution of claims but also the evolution of substantive law. As the American civil justice system enters the digital age, the haves will be propelled yet further ahead.

This chapter offers a critical review of reported fingerprint cases in three common law jurisdictions covering the period from the beginning of the twentieth century until the time of publication. It considers how the tools of adversarialism were applied to the admissibility and use of fingerprint evidence in criminal proceedings. It provides a detailed survey of the manner in which defence and appellate counsel contested fingerprint evidence, how courts responded to these challenges in trials and appeals and, implicitly, how examiners testified and prosecutors presented this evidence. In order to facilitate the analysis, the chapter draws upon mainstream scientific research and recommendations. This scientific knowledge operates as a standard that can be used to evaluate legal representations and uses of fingerprint evidence, as well as the effectiveness of legal rules, procedures and personnel. The chapter concludes that legal institutions in each one of these jurisdictions were basically inattentive to the epistemological dimensions of latent fingerprint evidence. Adversarial trial safeguards, including appeals, did not bring the lack of testing and systematic over-claiming to the attention of the courts.

A lack of regard for truth is a feature not only of problematic grading practices but also of aggressive advocacy as some people understand it. Liberals favor adversarial advocacy, in the courtroom and elsewhere. And a natural law concern with fairness prompts us to see adversarial practices as frequently valuable. But while the practice of aggressive advocacy by attorneys might yield positive results, attorneys themselves might still sometimes act unreasonably in engaging adversarially. The same may be true of professional adversaries of other sorts. Chapter 4 evalutes one positive proposal regarding adversaries’ ethics, seeking to show how natural law theory might help to clarify the moral status of some adversarial practices.