Litigation is based on the adversarial system of trial used in Australia where two sides contest to win the case. Under this system the parties involved are adversaries meaning they are opponents. The ultimate aim of the adversarial system is to find a winner and a loser in a court contest. The judge decides which party wins the case.
The adversarial system has five distinct features by which it is defined:
- The role of the parties;
- The role of the Judge;
- The standard of proof;
- The need for professional representation; and
- Rules of evidence and court procedure.
Benefits of the adversarial system
- It is the most effective process for testing the validity of arguments and discovering the truth.
- Each side is given an equal opportunity to present arguments for their case and to critically question the arguments of the opposition through a process of witnesses being examined-in-chief, cross-examined and re-examined.
- The truth is ultimately reached because the desire to win the battle will ensure the truth is brought out to the court in the end.
- Legal representatives have a duty to the court over and above their duty to their clients. They cannot mislead the court by making allegations they know are false or by deliberately failing to inform the court of a precedent relevant to the case.
- The adversarial system encourages objective consideration of the evidence. The rules of evidence and procedure are an honest attempt to minimise human error and ensure fair consistency.
- The adversarial system has been the best system to date to satisfy the community’s idea of fair play and produces confidence in the decision made and the legal system.
- It requires parties to be personally responsible for the preparation handling of their case. In this system parties use professional advocates and representatives to ensure the best preparation of their case.
Disadvantages of the system
- The adversarial system is slow which means that too many people are denied justice for too long. In the Family Court and Federal Circuit Court of Australia the average waiting time between commencing court proceedings and a final hearing is between one and two years.
- Delays in the system are a constant problem for those seeking resolution of disputes.
- The adversarial system is expensive. The high cost of legal advice and legal representation can seriously hinder those who cannot afford it.
- High costs may prevent people from enforcing rights they may have or may force them to economise on representation of their case. This may mean that by the evidence which needs to be drawn out by questioning and proper preparation may not be revealed at the trial and therefore the truth may not also emerge.
- There is an emphasis on oral evidence. This means witnesses can be confused by highly skilled lawyers and their evidence appear to be unreliable. Witnesses also need to rely on their memory of events which often occurred some time ago because of the delays in getting the case to trial.