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Pretrial Discovery and the Adversary System

Pretrial Discovery and the Adversary System

William A. Glaser
With a Foreword by Earl Warren
Copyright Date: 1968
Published by: Russell Sage Foundation
Pages: 320
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  • Book Info
    Pretrial Discovery and the Adversary System
    Book Description:

    Presents the results of the first national field survey of how lawyers use pretrial discovery in practice. Pretrial discovery is a complex set of rules and practices through which the adversaries in a civil dispute are literally allowed to "discover" the facts and legal arguments their opponents plan to use in the trial, with the purpose of improving the speed and quality of justice by reducing the element of trickery and surprise. Dr. Glaser examines the uses, problems, and advantages of discovery. He concludes that it is in wide use in federal civil cases, but that while the procedure has produced more information in some areas, it has failed to bring other improvements favored by its original authors.

    eISBN: 978-1-61044-632-7
    Subjects: Law, Sociology

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Foreword
    (pp. vii-viii)
    Earl Warren

    Our system of justice, long dedicated to accurate and fair adjudication of disputes, has relied on the adversary proceeding to disclose the information necessary for a just decision. Our reliance on the adversary proceeding as an acceptable fact-finding process has, in part, assumed that each party will present all the facts favorable to his cause, and further has assumed that each party will serve as a check on the others, so that no relevant information will remain undisclosed. Yet it has been recognized that our assumptions concerning the accuracy of the adversary proceeding have not always been justified. For example,...

  3. Acknowledgments
    (pp. ix-x)
  4. Table of Contents
    (pp. xi-2)
  5. CHAPTER 1 Perfecting the Administration of Justice
    (pp. 3-14)

    The law aims at justice, but it works through people organized in certain social relations. It is not enough to adopt the right moral principles; they can be undone by mistakes in the organization of adjudication. The wisest laws are worthless if litigation is delayed or confused.

    When one private person complains against another, each can quote on his behalf the society’s principles. The practical problem is to decide which of the competing claims fits the law’s definitions of rights, injuries, liabilities, and remedies. Every society must adopt some system of making these decisions. One method empowers an individual or...

  6. CHAPTER 2 Development of Modern Civil Litigation
    (pp. 15-25)

    An adversary system can function successfully only through some sort of regulated procedure. In an “inquisitorial” system, it is the government’s tribunal and its career functionaries who administer court proceedings. But in an adversary system, the litigants themselves carry far more of the burden in framing the issues; moving for trial, settlement, or dismissal; attacking the adversary’s contentions, evidence, and witnesses; specifying remedies; and so on. Litigants are numerous, diverse, and contentious, and therefore the adversarial system could not survive as a stable social institution unless it required all to conform to universal procedures. Because the adversary system legitimizes the...

  7. CHAPTER 3 Modern Pretrial Discovery Rules
    (pp. 26-37)

    Under the adversary system, each party has an urgent need for information. The issues are framed by the parties and not by the judge. Proof is introduced by the parties and not by the court. Each party and not the judge carries the burden for learning and revealing the weaknesses in the adversary’s position, particularly before juries.

    This need for information is intensified by the way the adversary system is organized in America. Anglo-American civil litigation is characterized by division into stages and by rules of preclusion that are often strictly enforced: if an offer of fact, motion, or objection...

  8. CHAPTER 4 Aims and Design of the Survey of Discovery
    (pp. 38-50)

    Policies can result from unplanned accretion or from purposeful edict. During several long periods in Anglo-American legal history, procedural policy was supposed to emanate from judicial usage rather than from the decisions of one or a few legislators or rule-makers. Each case would be decided in the light of all precedents. A judge would look up previous court decisions or commentaries on the case law, and he would apply the relevant rule to the new situation. Originality was harmful. Supposedly there was no need to investigate whether the rule was working well or badly in the total system, since it...

  9. CHAPTER 5 Discovery in Practice
    (pp. 51-82)

    Slightly more defendants than plaintiffs use some form of discovery.¹ This is particularly evident in the use of two devices well suited to probing a litigant’s claims on liability and damages: defendants depose the adverse party and give him a physical examination; plaintiffs use two devices well suited to extracting serious concessions from an adversary under attack, namely interrogatories and requests for admission. Interrogatories were traditionally the plaintiff’s device in equity, and they remain well suited to attempts by an attacking side to induce an opponent to divulge important facts under oath. Requests for admission are designed to narrow the...

  10. CHAPTER 6 Gains from Discovery
    (pp. 83-116)

    The procedural reformers who introduced discovery into the Federal Rules and discovery’s present-day admirers attribute numerous benefits to it. From the standpoint of the litigants, it is supposed to bring information and evidence not otherwise known, reduce surprise at trial, and increase the chances of favorable settlements and of victory at trial. From the standpoint of the administration of justice, discovery is supposed to relieve burdens on the court by increasing settlements and reducing appeals from verdicts, by improving the quality of settlements and trials, by reducing contention, and by generally shifting the burden of litigation from the courtroom to...

  11. CHAPTER 7 Conflicts Over Discovery
    (pp. 117-161)

    Discovery is an innovation calculated to harmonize the opposing sides in an adversary system of litigation, but they remain adversaries nevertheless. The danger in any institutional change is unanticipated and undesired side effects. And, in particular, any new arrangement in an adversarial situation might give one side a technique for belaboring the other and winning unfairly. Discovery was intended to dispose of more cases on the merits; if it actually leads to more dispositions by tactical tricks or through harassment of weaker adversaries, repeal or reform would be urgent.

    The potentialities for abuse have been foreseen by the supporters of...

  12. CHAPTER 8 Costs
    (pp. 162-188)

    A recurring theme in the history of procedural reform has been the danger that economic barriers might hamper the achievement of justice. If the time of lawyers is taken up by too many procedural formalities and if court fees are numerous and excessive, the average citizen will lack the money to protect his rights. Then disputes would be decided not according to the merits, but according to the sizes of litigants’ purses.

    The authors of the Federal Rules of Civil Procedure were aware of this peril. The first rule states that all rules “shall be construed to secure the just,...

  13. CHAPTER 9 The Heavy-Discovery Case
    (pp. 189-202)

    Most cases are small: their financial stakes are low, each takes only a few days of the lawyer’s time, and the use of discovery is limited. Most cases are also settled before trial and raise little trouble for the lawyers and judges.

    But rules and judicial procedures are supposed to apply to all situations. Even if they govern most cases successfully, they would still require reform if a few cases generated excessive work, trouble, and costs for the entire system. In the administration of justice, certain statistically infrequent cases are extremely important, because they occupy much of the court’s time,...

  14. CHAPTER 10 Contributions of Social Research to Rule-Making
    (pp. 203-232)

    Rules of procedure are statements of norms and guides to action. They forbid acts by litigants and courts that have been disapproved by the rule-makers, they are supposed not to allow unwarranted interference with permissible acts, and they are intended to encourage approved acts. The rule-makers must understand how the system currently works if they are to remedy its malfunctions and avoid creating new ones. They must possess the imagination to foresee all the possible consequences of any new rule. They must write clearly, since the rules must guide all the lawyers and judges throughout the jurisdiction. Because of the...

  15. CHAPTER 11 Discovery and Its Place in the Adversary System
    (pp. 233-246)

    Often when a reform is introduced, its advocates depict it as a panacea for all contemporary ills, while its opponents foresee only new catastrophes. Usually the results are modest and mixed. The political process of enacting a reform usually restricts its scope and eliminates its more risky features. Frequently the reform is part of a long-term movement involving many alterations; meanwhile, the environment itself may be changing, and therefore one never can be sure whether the particular reform is responsible for certain effects. Every reform produces some unexpected consequences.

    The expansion of discovery is part of a historic trend relaxing...

  16. APPENDIX A Federal Rules of Civil Procedure: The Discovery Rules
    (pp. 249-262)
  17. APPENDIX B Sampling
    (pp. 263-270)
  18. APPENDIX C Questionnaires
    (pp. 271-288)
  19. Index of Names
    (pp. 291-293)
  20. Index of Cases
    (pp. 294-294)
  21. Index of Subjects
    (pp. 295-300)