Advantages and Disadvantages of Adversarial System

An adversarial legal system brings cases to the court with two opposing sides
presenting themselves before a neutral panel that can include a jury and a judge.
Once both parties have argued their cases, the panel will then determine the facts
and the appropriate actions to be taken. Common law countries commonly use this
justice system, as its beginnings are quite ancient. While this approach to holding
actions and defenses is supported by many as venerable, it is also refrained by
others because they see it as having some potential drawbacks. To fully understand
the adversarial system, it is best to look at its advantages and disadvantages.
List of Advantages of Adversarial System
1. It is seen as fair and less prone to abuse.
Those who support this system often argue that it is fairer and less prone to abuse
than other legal systems, as it does not allow any room for the state to favor against
the defendant. Instead, it allows private litigants to settle disputes in amicable
means through pre-trial and discovery settlements, where non-contested facts will
be agreed upon to try not to deal with them in the litigation process.

2. It properly observes the rights of the defending and prosecuting parties.

In this judicial system, an accused individual is given the right to remain silent, get
a lawyer to help him state the case and remain innocent until proven guilty, which
is a crucial aspect in the outcome of the case. As for the prosecution, they are also
allowed to present facts as they interpret and understand them. Another thing is
that the government is advised on all criminal matters.

3. It allows both sides to support their positions.

The adversarial system allows both parties to present witnesses and evidence to
support their positions, where they can cross examine witnesses, independently
analyze evidence and challenge arguments. The objective here is to present all the
facts for the benefit of the jury and the judge in deciding what really happened and
who should be held responsible.

4. It provides power to the police.

In this approach, the police play an essential role in the path to justice, where they
are the ones who will run the investigation while adhering to certain conditions,
such as presenting a warrant. They cannot detain an accused individual without
proper arrest.
5. It does not promote bias.
The jury and the judge are expected to remain impartial—after all they are chosen
using criteria that are designed to get rid of people who might be biased in a certain
case. Basically, this system presents the contest to individuals who do not have
interest in the outcome and can evaluate the facts objectively. However, this
system can become complicated, where lawyers on both sides can use rhetorical,
but legal, strategies to influence opinion that can affect the outcome of the trial.

6. It hears the stories from both sides.

Generally, this system does not allow the Judge to comment until both sides are
heard, making him less biased and lessening the possibility of public protest to the
verdict.

List of Disadvantages of Adversarial System

1. It obliges each side to contest with each other.
The adversarial litigation approach is sometimes criticized for setting up a system
where sides on a case are required to contest with each other. This is believed by
critics to encourage deception and other questionable legal tactics, as the objective
is to win at all costs, instead of evaluating the facts to learn the truth.

2. It might lead to injustice.

Critics point out that a lot of cases in an adversarial system, especially in the US,
are actually resolved by settlement or plea bargain, which means that they do not
go to trial, leading to injustice especially when the accused is helped with an
overworked or unskilled lawyer. Also, they argue that this type of system causes
the participants to act in perverse ways, encouraging defendants to plead guilty
even when they think otherwise and prosecutors to bring charges far beyond what
is warranted.

3. It might result in judgments compelled by arguments, instead of evidence.

In this system, the discovery with evidence rests upon the lawyers who work for
each side, with the better one having better chances to win the case. But is the jury
is involved, the final decision might be swayed by the most compelling arguments,
instead of solid proof.
4. It has issues with accessibility.
One criticism of an adversarial system that is very difficult to refute has something
to do with accessibility. It cannot be plausibly argued that average defendants can
enjoy the same access to legal representation as the wealthy and influential
defendants, which is the same with the part of the plaintiffs. However, supporters
explain that such unequal access resulted from social and economic conditions, not
the structure of the judicial system, adding that altering the way of delivering legal
services would do nothing in addressing the root causes of such a disparity.

5. It uses a tedious process.

It is also said that the adversarial form of legal system is slow and cumbersome,
where the judge—who acts as a neutral fact finder—could only do little to hasten
the trial process, not to mention that the evidentiary and procedural rules can slow
down the process further. In addition, the wide availability of appellate reviews
would mean that a final decision can be made for years, though at least one
research has shown that some courts discouraged holding adversarial trials and
making active settlements. However, litigants in this approach are still
encountering substantial delays in reaching a resolution. And while this
disadvantage is true, supporters still argue that the slow methodical system is

needed to protect individual rights.