Kirkus Reviews QR Code
PARTISAN JUSTICE by Marvin E. Frankel



Pub Date: June 1st, 1980
Publisher: Hill & Wang/Farrar, Straus & Giroux

Pithy reflections (described as ""an outline of a work intended to be in progress"") by a former New York federal court judge on aspects of our vaunted adversary system that thwart, rather than promote, the doing of justice. The key problem with adversary lawyering, according to Frankel, is that it spawns ""excessive tolerance for efforts by the contestants to distort the truth,"" and assigns an ""inert"" role to the judge. At its baldest, distortion of the truth can take the form of concealing unfavorable facts or concocting false stories, a problem which Frankel suggests is endemic to the time-honored practice of artfully ""preparing"" witnesses for testimony ""to the point where a question about Galileo could produce a list of last year's batting averages."" Just as often, distortion occurs when an artful attorney, on cross-examination, succeeds in making what is true seem false or doubtful. To compound the problem, pre-trial discovery procedures--instituted originally to open up the process and reduce trickery and surprise--are now routinely used as devices to harass or delay. All these horrors, Frankel argues, appear most clearly in the criminal area, where ""worship of adversary struggle"" has led to virtual paralysis of the process. There are stirrings of change, however, and Frankel discusses draft recommendations of an ABA commission (of which he is a member) to broaden lawyers' duties to reveal the truth. Frankel's own further suggestions for reform fall in three areas: improving flawed adversary procedures (limit discovery, limit jury trial, experiment with noncontinuous trials and videotape to shorten the process); exploring alternatives to traditional adversary trials (e.g., non-judicial tribunals and mediation); and making skilled legal services more widely available through a National Legal Service system. Intelligent criticism, skeletal but not superficial.