Lawyers and Their Penchant for the Adversarial

THE OPEN MIND
Host: Richard D. Heffner
Guest: Marvin Frankel
Title: “Lawyers and Their Penchant for the Adversarial”
AIR: 2/20/81

I’m Richard Heffner, your host on THE OPEN MIND. Recently on our program, we’ve rather strongly reflected what seems to be an ever-increasing public concern with our national system for achieving justice. Over the years, we’ve done many, many OPEN MIND programs on the law and lawyers, but with a difference: now there seems to be somewhat more of a critical edge to our discussions. And we seem to be coming closer and closer to challenging whether, in practical terms, justice in our country is effectively and sufficiently the singular objective of the legal profession that is so much involved with its penchant for the adversarial. The other week, in drawing an obviously inadequate parallel between lawyers and doctors, I wondered out loud here whether, given the way their respective professions are developed in our country, doctors might not be somewhat more concerned with health in general than lawyers are with justice in general. Now, the prevalence of the adversary system in American law may, in part, account for that perception, whether the perception is accurate or not. And that’s why I’ve invited as my guest today Marvin E. Frankel, whose volume, Partisan Justice, is so much to the point. A government attorney, a trial lawyer, and then a professor of law at Columbia, and, for more than a dozen years, a United States District Court judge, he is now in private practice once again.

Judge Frankel, thanks for joining me today on THE OPEN MIND. And let me take a page, two pages, from Partisan Justice, and, turning to it, I see you say, “In the law courts, as in the marketplace, we have fashioned a regime of individual, competitive struggle, freeing the contestants to war against each other”. And you use the metaphor of war a couple of times in the book. And then, on the next page, you say, “One way to state the thesis of this book is to say, recognizing the complex relativities of life, that the American version of the adversary process places too low a value on truth-telling”. Are you saying that lawyers in this country don’t aim essentially to develop the truth before the rest of us?

FRANKEL: I am saying that they aim less than an ideal system of justice would have them aim. As I listened to your introduction and thought of the comparison between us and doctors, I was made aware once again that we do come out much less interested in justice in general than doctors are interested in health in general. And indeed – and I’m speaking now of lawyers, not judges – if we get too interested in justice in general, we very probably get fired by our clients, who are not interested in justice in general, and not necessarily interested in justice for themselves; they’re interested in winning.

HEFFNER: That’s the war that you were talking about?

FRANKEL: That’s the war that I was talking about.

HEFFNER: Do you think an adequate system of justice in any nation can be based upon that warlike metaphor?

FRANKEL: I think that justice systems everywhere are inevitably adversarial to a very considerable degree. There’s a fight between two people. One claims the other made a promise and broke it. And unless they settle that dispute by agreeing on what the truth is about that matter, they are going to contest about it. They’re going g to disagree about it. And in every civilized country in the world, so far as I know, today, the complexities require them to hire paid advocates to do the contesting for them. Well, the Chinese, you know, recently tried to do away with the lawyers; and even there, it didn’t work. They’re reintroducing them, perhaps with regret. So, when they come to legal blows, when they come to fight it out, each side is interested in vindicating his or its position. And our God, or some detached observer who is omnipotent, knows that one of them’s right. But the lawyers don’t know which one is right, and they’re in a sense, paid not to know too well. That’s the judge’s job. The lawyers, job, the advocate’s job, is to represent his side as zealously and effectively as he can. And our code of professional responsibility speaks of “zeal on behalf of the client”. One runs on. But if I represent a client, I’m not to sit in judgment on him.

HEFFNER: But, if you represent a client, aren’t you also an officer of the court? The court that is seeking, presumably, justice and truth?

FRANKEL: Yes. And that puts limits on this fight, just as in the prize ring we have certain limits on the fight. I’m not supposed, deliberately, to mislead the court. And I probably – although lawyers disagree about this – am not supposed to let the client deliberately mislead the court. But I hasten to repeat, because it’s very important, there’s a big dispute among lawyers as to how far we are supposed to prevent our clients from telling lies to the judge and the jury.

HEFFNER: Because I always ask my guests, or most frequently ask my guests what the downside is of their argument, what would be the upside on the part of those who say, “It is not inappropriate. It is not verboten for a client and his advocate to stretch the truth in presenting his case?”

FRANKEL: Well, I’m not a hearty advocate of that position.

HEFFNER: I understand.

FRANKEL: But I am aware of the position and its strengths. One, being lawyers, we are not supposed to be making judgments and casting our clients in judgment. And one argument for the position that the client is to decide how far he’s going to go in the direction of truth, one argument for that is that we, being professionally trained, are not to bar the possibilities against our own clients. We are to put them in the position they’d be in if they had our professional training. We are equipped to know what we may do in the courtroom. We’re equipped to know when we might decide to lie in our own self-interest. We mustn’t deny the client that professional equipment. Maybe we would try to persuade the client that truth is better than falsehood. But in the end, we’re to leave that judgment to the client, even if we know beyond a reasonable doubt that the client is lying in the courtroom. Now, that’s the easy subject, and one could talk about that. It gets more ambiguous when lawyers say – as we do, and honestly – that very commonly we don’t really know. We don’t know what the truth is. We’re not that omnipotent being that I spoke of before.

HEFFNER: Sort of a cop-out thought, wouldn’t you say? Quite frequently, at any rate?

FRANKEL: Well, yes, it’s…

HEFFNER: Of course we don’t know. Who knows any of that?

FRANKEL: Right. It’s sort of a cop-out. But it’s not completely a cop-out. Because the client, if you were my client, you come to me trusting me. That’s at least the theory of the relationship. Relying on me. You’ll tell me everything. And I’m then to serve you faithfully. And if you tell me some weird story that, as a mere human being, I’d be likely not to believe, and you assure me it’s the truth, who am I, in whom you’ve placed confidence, to say, “Oh hell, you’re lying. And I won’t let you tell that to the court?” Well, the notion is that I really ought not to do that. I can do a lot of other things. I can say to you, “Client, no judge in his right mind’s going to believe that story”. Or, “No jury will believe it”.

HEFFNER: But that’s not what we’re talking about.

FRANKEL: But that is not what we’re talking about. So, you see, what I’m saying is that unless you, the client, say to me, “Now, the truth is that I did rob that bank. And I thought you might want to k now that, Mr. Lawyer. But I’m going to go testify in the courtroom and deny it”. Unless that happens, I don’t have any sure way of knowing – the theory goes – that you’re lying. And, indeed, you could press it a little harder. People have confessed to wrongs that they didn’t commit. So if you, client, confess to me, and then you say, “Well, I really didn’t mean it”, or “I’m not going to say that in court”, well, the rhetorical question again is: Who am I, the lawyer, to say that I should prevent you from telling whatever story you think you should tell?”

HEFFNER: Well, of course, it is in the area of criminal action that I think most of us are concerned with this question. Not that it isn’t important in a civil action too. That, perhaps, just enables lawyers to do as well as they might. You indicated that there is a free enterprise aspect to the legal profession. In our concern for apprehending criminals and putting them away if they indeed did commit the crimes we accuse them of, and are guilty of them, protecting ourselves, do you think we are at a disadvantage in this country because of the adversarial approach of lawyers in this question of crime today?

FRANKEL: At a disadvantage as against the criminal?

HEFFNER: Yes. Put it that way. Society opposed to the criminal.

FRANKEL: I wanted to ask you if you were putting it that way, because I’m acting as if I were a lawyer because I am, and I would want to rephrase the question.

HEFFNER: Please do.

FRANKEL: I say we have a lot of disadvantages. Let me say some crude things about it. We have more people in prison at any given time per hundred thousand than, I think, almost any civilized country in the world. I used that phrase before. I’m a little uncertain about Iron Curtain countries. But as against Western Europe, our prison population, per hundred thousand of total population, is enormously higher than it is anyplace else. So we’re a very punitive society. That is to say we send more people to jail for longer than any other country, substantially. Now, we also make it harder, with our various procedural rules, and some of them in the Constitution. I think we do make it harder to convict people in a trial than almost any other country. But the reason I mention both things together is that they go together. We don’t have very many criminal trials. Most of our defendants plead guilty. Why do they plead guilty?

HEFFNER: To the crime of which they’re accused?

FRANKEL: Well, to that or some bargained, lesser crime.

HEFFNER: But you don’t want to dismiss that; that’s an important point.

FRANKEL: Oh, it’s very important. So what am I saying, if you put it all together very quickly, and too quickly? I’m saying we charge people more fiercely than prosecutors do in other countries. We make it more costly than other countries do to go to trial. Because here, if you go to trial and get convicted, we’re going to give you the book, a huge sentence. And that’s what makes it possible to have plea bargaining. Because you can bargain for a lesser sentence – and it’s really sentence bargaining – and what the apparatus is saying to you is, “Look, if you want to make a deal, and you can, you may get some bearable sentence. If you go to trial, you may have a better chance than a defendant in Holland of beating the system. But if you go to trial and you get convicted, we’re going to put it to you”. And that’s the more total picture that the defendant and the community both confront. Now, who is at a disadvantage? It depends a little on where your heart lies. Many people who are concerned about the underprivileged, the oppressed, the disadvantaged, who are the main source of our criminal defendant population, say that the system is a terrifying one for them.

HEFFNER: That the advocacy system is?

FRANKEL: The adversary, plea-bargaining…

HEFFNER: Right, right.

FRANKEL: …system is, for them, a fierce and oppressive one. For example, in New York, you might sit in jail because you couldn’t make bail, for a year, waiting to go to trial. If the charges are modest enough, you may be able to make a plea bargain that gets you out in six months. Now, the advocates of the defendant’s point of view tell us, assert, that a great many innocent people make a plea bargain because they get out of jail sooner pleading guilty than they would taking their chances, eventually, in a trial. I don’t think anybody’s got powerful statistics on that. But there are some statistics that indicate that at least some people who are innocent and would be acquitted plead guilty under a bargain in order to get our of jail, or because they don’t want to take their chances in a trial.

HEFFNER: Well now, you’ve sat on all sides of the fence (if the fence can have many different sides). You’ve been a government attorney. Perhaps you’ve not been a prosecutor, but you’ve watched prosecutors from the bench. You’ve been a lawyer, a private lawyer. What changes do you recommend in the justice system in this country that would come, bring us closer to the quest of justice, the search for truth that you look for, because you’re one of the few attorneys I know who have talked about truth? And they you said something in the book about, well, you don’t want to seem to be romantic about it. You don’t want to seem to be idealistic. But why not? What’s the concern about being concerned for truth?

FRANKEL: Well, I don’t have a whole social reform recipe. This book that led you to be willing to talk to me is a skinny book. It covers a lot of things. And my hope in writing it was to cause people to think about this problem more than to sell them Frankel’s solution. Nevertheless – having covered myself in that way – I have a number of ideas about how the system ought to be reformed. We’re focusing on the criminal justice thing, and it’s different. The civil problems are severe too, and similar, but you’d have different solutions. I’d have a number of changes that make me enemies on both sides of this process; the defense side, the civil liberties side, and the prosecution side, and the repressive side. Nobody likes my ideas. That’s why I don’t want to put them way up front. But let me give you some examples. One of the things I talk about in here which is quite important, though it’s only a piece of the problem, is this weird Miranda business that you see on kids’ tee-shirts. There are Miranda warnings and so on. Everybody knows about Miranda.

HEFFNER: Because they watch television?

FRANKEL: They watch television. And nobody likes it. The prosecutors don’t like it, the defendants don’t like it, and I don’t like it. And I have a cure for it; but nobody likes that. Let me tell you the cure.

HEFFNER: Go ahead.

FRANKEL: I don’t think any police station confession, with all the warnings in the world, ought to be allowed in evidence ever. Yugoslavia, I understand, doesn’t allow police-station confessions. And the last time I looked, Scotland didn’t allow them. Now that’s two ends of a spectrum.

HEFFNER: Right.

FRANKEL: Well, at the same time, what do we do about that? Why do we have so many police-station confessions? Well, we have them for the very, kind of, primitive reason that the person who knows best whether he killed the victim is the person sitting there. And our general belief is that if you were accused of some horrible crime and you were innocent, you would protest your innocence. You would tell. And you would tell before you got some smart, questionable, tricky lawyer to help you concoct a story, assuming you were guilty.

HEFFNER: Assuming that that’s a description of even one or two members of your profession.

FRANKEL: Yes. And it is. It is a description of a number of us. And one that a number of us would not reject. Smart, tricky. A great many lawyers wish to be described and known in that way. It brings clients and could, us, from a large segment of the population. Well, there’s an urge, a desire – and I sympathize with it – to get to the accused early and say, “Look, did you do it?” There’s a fear that if the cops are sitting around the accused with bright lights on him in the police stations, perhaps nudging him a little spiritually and physically, he is liable to be led to say things that are either untrue or somehow forced out of him, that are the results of pressures that a civilized society ought not to put on people. Now, I’ve described this like everything else: very quickly. But what do we do? Well, the Miranda thing tried to make compromises. It says you may not question an accused unless you first tell him he’s got a right not to answer, he’s got a right to a lawyer, he can stop whenever he likes, if he can’t afford a lawyer, you’ll give him one, etcetera. And if he understands all those things, and then says he waives all those rights and he’s willing to talk, then you may question him. Well the whole thing’s absurd. Because nobody in his right mind, having been given those cheerful warnings, would be stupid enough to talk his way into prison, as so many people seem to do under our system, because they get the Miranda warnings, and no lawyer is present, and they then give a full, detailed confession. And later, in court, they and their lawyer are fighting like mad to keep that confession out, which is supposed to be voluntary. It’s a funny notion of volunteerness. Well, the compromise that I propose somewhere in this book is that you must have no confessions to the cops admitted in evidence. But when somebody is arrested, he or she is equipped with a lawyer, advised, really, of his or her rights, and then maybe brought before a magistrate and questioned in an open courtroom, publicly. And they refuse to answer.

HEFFNER: It’s so strange that you say that, in light of the comments that have been made by others than Chief Justice Burger, but by Burger and others, to the effect that, in that kind of situation, perhaps the legal advice that the accused will receive isn’t worth that much of a tinker’s damn, and yet you’re willing to participate in what some might consider an extension of a charade if they have that representation. You don’t want them just warned. But it’s okay if they have that representation at the time they come into the police station. But isn’t this…

FRANKEL: This is not the police station. This is a courtroom.

HEFFNER: Only in the courtroom then? Nothing in the police station?

FRANKEL: Open court. Nothing in the police station.

HEFFNER: I misunderstood.

FRANKEL: That’s the important difference. Now, I’m an accused. I’m being questioned before the magistrate. My lawyer’s got a problem. He can advise me not to answer, or he can advise me, depending on what I’ve told him, that I should answer. And I can’t go into all the complexities of this and how lawyers will react, with their wiles and their understanding of procedure, to these problems. But what I will say is this: Under the proposal I make, whatever happens in that courtroom at that point, I would allow the prosecution to use later on. So, if the defendant at that point, says, “I refuse to answer”, for whatever reason, “on the ground of the privilege against self-incrimination”, that refusal I would permit to be used later on. And why? Because six months or a year later, when the case comes to trial, that same defendant may choose to take the stand. And he may tell a very interesting story of his innocence. And I think a jury should have an opportunity to compare that with what happened when the events were fresh in the person’s mind. Now, I think of myself as, basically, a civil libertarian, and a believer in human rights. Most of my friends in the ACLU would like to see me lynched for this proposal. And, indeed, it is an unconstitutional proposal as the Supreme Court’s decisions stand at this moment. But the Supreme Court’s decisions change from time to time.

HEFFNER: With the election returns.

FRANKEL: Well, that was said by Mr. Dooley, and I ma thirty-odd years at the bar, and I’m not allowed to be quite that cynical. But they do change with the tides of opinion once in a while.

HEFFNER: Let me ask you something, Judge Frankel. If this reform were to take place, this change that you’d like to see take place, did, would it mean more people behind bars, in your estimation? Is that why you want this change?

FRANKEL: I don’t know whether it would mean more people behind bars.

HEFFNER: But it would mean more justice achieved?

FRANKEL: I think it would take some of the obstructive fight out of the system, and make it more likely that we convict the guilty and acquit the innocent. Because remember, part of the tradeoff is: No police-station confessions. And I’m assuming – because I think it’s true – that some people either confess in the stationhouse or are alleged to have confessed, falsely, by the cops, and are convicted on that basis when they should not justly have been convicted.

HEFFNER: Well, I asked you about justice achieved because I wanted to come back, in the two minutes remaining, and ask you whether you think most of your colleagues at the bar are essentially concerned – that’s where we began – with justice achieved?

FRANKEL: In some remote, detached, impersonal way, yes. In their daily business for clients – and I’ll make some more enemies – no. That is to say, here I am, an ex-judge. And I have some clients who have interests that they want vindicated. I, because I’m old and I used to be a judge, and I’m timorous, and perhaps for other reasons, will not lie for them, will not cheat or steal for them. But I will press to the hilt their legal rights. And I do not choose those clients based on my belief about the justice of their position. In most of the cases where I work as a private lawyer, if I face the facts, I would have to say I could be retained on either side, and I would work very hard and loyally for whichever side retained me. I think that’s part of the ethos, part of the understanding of my profession. It’s got lots of problems, not all of which can be solved even in a half hour. And they’re interesting and complicated, and I’m learning about them still.

HEFFNER: How does such an even-handed jurist, judge, judicial-type person, good lawyer, participate in the battle, the war, that you described at the beginning of your book? Happily?

FRANKEL: Usually, yes. The battle, if you’re jaded that way…I think those who become lawyers would probably not have made good ministers, although there are exceptions to that. And one knows some famous lawyers who, after some interesting experiences, became ministers. But they’re exceptions. The battle is fun. Frequently, you’re on the side of right. There are a lot of other things to be said for it.

HEFFNER: But it’s always a battle. Thanks very much for joining me in this battle over that battle, Judge Frankel.

FRANKEL: A pleasure.

HEFFNER: And thanks, too, to you in the audience. I hope that you will join us again on THE OPEN MIND. Meanwhile, as an old friend used to say, “Good night, and good luck”.