The Adversarial System … An Ethical Concern

THE OPEN MIND
Host: Richard D. Heffner
Guest: Floyd Abrams, Esq.
Title: “The Adversarial System…An Ethical Concern”
VTR: 6/26/87

HEFFNER: I’m Richard Heffner your host on THE OPEN MIND.

As an erstwhile historian, I know very well how large a legal ingredient there is and always has been to American life: what an enormous role lawyers play in what we do, who we are, what we think as a people. I also wish I had become one of them. But that’s spilled milk now…and I’m pleased to settle with having a son who is an Assistant District Attorney and with the ability to get my own personal jurisprudential “fix” every once in a while right here on THE OPEN MIND, by inviting one or another distinguished officer of the court to talk out some of the real questions about the law and its practice, that is shared generally by concerned – even worried – fellow citizens…questions such as how far an attorney charged always with giving his clients the most effective representation – should or can rightly go to foster a client’s interest: whether that client is a person accused of rape, or murder, or stock market manipulation or is the government itself as it is represented by a local prosecutor or, perhaps, a United States attorney.

In practical terms, must advocacy ever draw a line? And if so, where must it be drawn? By whom? How much is too much prosecutorial zeal? What defense tactics are out of line, not just with what has rather pompously been called the majesty of the law, but with in truth its great and stated purpose to secure justice? And can we discuss these issues without them leading, perhaps unfairly, just to today’s or this week’s much publicized case, the “scandal” of the moment?

Of course, as a presumably know-it-all Producer/Moderator, I realize that I’m supposed to know where, at least, to begin to untangle this web we’ve woven here. But I’ll be darned if I do. So that I’ll turn instead to my OPEN MIND guest for his reasoned choice.

Floyd Abrams is, after all, one of the best known and most highly regarded and enormously accomplished members of the American bar (meaning that he wins a lot!), a partner in the prestigious law firm of Cahill, Gorden & Reindel…and clearly (as he has described a colleague and teacher) “a full-blooded First Amendment Voluptuary.” So, I ask Counselor, where should we begin in this case of ethics versus the adversarial system?

ABRAMS: Well, we begin, I suppose, with what lawyers do. I mean what is the role of a lawyer in our society? What is the role of a lawyer in a case? It’s to represent someone, to represent zealously the interests of a client. To be the spokesperson for the client as if the client could say these things, represent himself, speak out. And then we say there are some limits. There must be some limits and there are some limits. But we start with the proposition that what a lawyer is, is the embodiment of what the client could be if the client could say it all for himself in the most effective way. And I don’t think the public really understands that. Particularly when lawyers represent unattractive people, often guilty people, often people who we would rather, in our darker moments perhaps, not give trials to at all. But that’s not the system we live under and it shouldn’t be.

HEFFNER: Yet, you know, you start off with the question of what is the purpose, what is the function of the lawyer. You give a very, very clear cogent reply, but I would bet that if you asked a lay person, such as myself, and probably most of the people who are watching, we would come up with the answer to help us secure or achieve justice. Is that any incorrect approach?

ABRAMS: No, but I think you have to take it in the context of the system. The system is supposed to achieve justice. When the system really works, what do you have? Let’s take a criminal case. You have a good prosecutor, you have a good defense lawyer, you have a good judge, you have a well attuned, functioning jury. Sometimes that happens. Sometimes it doesn’t. But the way the system is supposed to work, is that everybody is functioning, playing his or her role in this grander scheme. And the role of the defense lawyer is to defend. And out of that defense and out of the prosecutor’s prosecuting and out of the judge’s instruction on the law and the jury’s functioning on the facts, in a better world or in a good world, you get an answer. And that’s justice. But it’s not the lawyer himself who is the justice-giver, the lawyer is playing a part of a system. And the part is to zealously represent his client.

HEFFNER: I suppose I must ask where it is written that the system should not be changed to achieve justice which is the objective, presumably, of most citizens.

ABRAMS: Well, to some extent it’s written in the Constitution. You remember the Constitution, it’s termed there in the Bill of Rights in terms of…there’s reference to counsel, there’s reference to a jury, there’s reference to trial by jury, there are other references to the nature of the system in which we live. We can tinker with it. Constitutionally we can tinker with it. And lawyers spend a lot of time at bar association meetings talking about some very important things about how far a lawyer is supposed to go. What can’t, what shouldn’t, what ought not a lawyer do? Those are hard, very important questions. I was starting with what I thought was sort of the easier line, which is to say that the function of the lawyer is to represent the client. And then we turned to well what…are there…I mean he’s not allowed to kill for his client. There are some things a lawyer is not supposed to do. But what he is supposed to do is to be the embodiment, the representative, the spokesperson of the client. And I think a part of disdain the public has, and I sometimes have, on a visceral level, for some lawyers that cross the television screen, is our disdain for the client being represented either too well, therefore getting off when he did it sometimes. Or offensively in one way or the other. Because we know what we know. And one of the things we sometimes know, and we’re right to know it, is that “This guy did it.” What’s this all about? Why is the system at work the way it’s at work. And the answer is because it’s a system, because we believe in having a legal system where everybody, even people that did it, even very nasty, offensive, dangerous people are well and fairly represented. And that’s where it all begins. After that, we say, all right, there are some things you are not allowed to do, even in the course of zealous representation. But the starting point is, “I represent you, if you’re my client,” I don’t represent justice. I’m part of the system of justice, but you’re my client, not anyone or anything else.

HEFFNER: Now you and I both know that the Constitution doesn’t embody everything that the Framers thought of…

ABRAMS: Right.

HEFFNER: …in terms of what a good society must mean and the way a good society must function. You’re not suggesting, then, that the Constitution embraces a continuing extension of the role of the adversarial system, are you?

ABRAMS: No, I don’t think the Constitution answers the question at all of how far the adversarial system goes. It…

HEFFNER: Well, then we can.

ABRAMS: Oh, yes, I think so. I think we can. What we can’t do, I think, is to sort of play around with the basic principle that we live in an adversarial system, that people are entitled to counsel and as a general matter, at least, counsel of their choosing. And that the counsel are supposed to represent them. But after we say those things, there’s a lot of room to say, well, what is it that you’re allowed to do? What is it that you’re not allowed to do? And, you know, what are the rules of the game?

HEFFNER: What are your answers to those questions?

ABRAMS: Well. After I say that the obligation of the lawyer is zealously to represent his client, then I say, as a sort of next step, well, you’re not allowed to lie for you client. And that’s easier to say than it is to know what I’m talking about. Because the question is, what is lying? You tell me this is what happened. You testify on the witness stand and you say that’s what happened. What is my role, as the lawyer? Well, I’m not supposed to put you on the witness stand if I know that you are lying. What does it mean to say that? When do I know it or when am I…when am I playing judge? I’m not supposed to be the judge either. That’s for the judge and the jury. Well, at least I know as a lawyer that if you tell me, “Look, I did it, but I’m going to tell the jury I didn’t do it,” that’s off limits. At least I know as a lawyer I’m not allowed to tell you, “Here’s what you have to say, the story is this, a, b, c, d, e, and that’s all there is to it.” But life is harder than that. Reality involves the lawyer talking to his client, telling his client very often and not just in criminal cases, what the law is. Client’s entitled to know, right? That has some risks. The risk is that if I tell you clearly enough what the law is before you tell me what happened, you will then shape what happened to fit with what the law is. And what’s my role in all that? As a general proposition, I don’t see anything wrong with and I do engage in the practice, very often, of telling clients what the law is. I think they’re entitled to that. And I don’t think that I am a truth-finder in the sense of being obliged to cross-examine my client to make sure that I am persuaded of everything he says.

HEFFNER: Then at what point do you become an officer of the court?

ABRAMS: Well, at some point…I mean, I’m an officer of the court at all points…but at some point my role as an officer of the court is such that I am obliged to say, and I know lawyers who have done this in different situations in their lives, obliged to say, “I can’t represent you. I can’t submit that affidavit.” I’ve done things like that. Or “We can’t say that.” You don’t have to insult people, people don’t know what to make of lawyers. Clients don’t know what to make of lawyers. They don’t know how much truth they’re allowed to tell, they don’t know what they’re supposed to say, they don’t know what the rules of the game are. They don’t know when I’m allowed, obliged, not allowed, obliged to speak. The ground rules have got to be set. And the ground rules have got to be made as clear as possible.

One of the reasons we have an attorney client privilege is so clients can speak freely. Can talk to their lawyers and say what happened. The problem…the areas where it gets close is where the client starts to say things which are very much to the harm of the client. Now a criminal defense lawyer will tell you, and I’ll tell you that they’re right, that’s the burden of the state, to prove guilt. Even if you represent a guilty client, you are absolutely entitled to put the state to the burden of proving the person was there, pulled the trigger, with the requisite state of mind, etc. It’s not my role as a criminal defense lawyer, if I were one, to cause my client to plead guilty. It’s the state’s obligation to prove that the person is guilty. But it is my obligation, as an officer of the court, not to let my client get on the stand and lie, if I know he’s lying.

HEFFNER: Now, let’s go back to this question of zealousness or over-zealousness or appropriate zealousness on the part of an attorney, when he will in defending his client, making his point, tear to pieces the opposing side. What are the ground rules there, if there are any?

ABRAMS: There aren’t many. Zealousness is a word which comes from a long history of legal canons, the rules of ethics, etc.

HEFFNER: (garbled) any definition?

ABRAMS: Well, that’s true. I mean, there have come to be some cases about it. Prosecutors, for example, are limited in the degree to which their zealousness may properly take them. I mean, you may be zealous as a prosecutor, you’re not allowed to make racial or religious comments about the defendant. You’re not allowed to refer to a confession which is inadmissible. You’re not allowed to refer to a prior record. Not only will the case be reversed if you get a conviction, but you will be censured in some way, as you should be.

HEFFNER: And a defense attorney? Is he limited in the same way…or she limited?

ABRAMS: He’s limited in a similar way. Not quite as much, I think, the way the case law has come out. A prosecutor has an obligation to principles of justice as well as getting a conviction within the bounds of zealous advocacy. A defense lawyer, I’m oversimplifying a little bit, but a defense lawyer’s obligation is almost exclusively to his client, subject to the rules of the game.

HEFFNER: Is that acceptable to you?

ABRAMS: Well, it is. It is as a general proposition. I mean, I get offended, as everyone else does, at the misbehavior, as I view it, the verbal brutality of some lawyers in court. The fact that we wind up with some prosecuting witnesses being tried, as it were, as if they had committed some crime, instead of being victimized. How to deal with that is very hard to say. It is appropriate, on occasion, for a prosecutor to object to certain questions being asked of a prosecuting witness. One reason the prosecutor tends not to is that the prosecutor doesn’t want to look as if the case is weak and so you hate to make an objection. Another is that we do bend over backwards in our courts. We provide more protection for defendants than any other society in the world, by far…by far.

Under the Constitution, consistent with the Constitution, under court rules and the like, we protect defendants more, by assuring them, for one thing, of the sort of counsel that I’ve talked about. By assuring them of the sort of courts that at our best, at least, we have. I sometimes think we don’t do enough for victims to protect their dignity in court. How to do that consistently with the Constitution isn’t easy. The only one one can turn to in the end is the trial judge. And I think that one of the errors that some trial judges have made in recent years is not to play, personally, a greater role in the case so as to assure that the dignity of people that testify is preserved, even if counsel make no objections.

HEFFNER: You feel that they have not played a sufficient role because of fear of being reversed?

ABRAMS: Yes.

HEFFNER: Because of reversible error?

ABRAMS: Yes. I think that’s one major reason. Also because judges are trained to generally play a low key role unless counsel object. It’s the role of counsel to object, if there’s objectionable activity going on. The problem is in the area that we’re talking about now is that it is often not in the interest of the state, say, to object to a state witness being raked over the coals by a defense counsel, so long as the prosecutor gets his or her conviction. Indeed, it sometimes makes it more likely to get a conviction if you just throw your witness to the defense counsel and, in effect, say “Go do whatever you can, I’ve nothing to be concerned about.” The problem is the state may have nothing to be concerned about, but the witness may be abused, and I think in that situation, the court ought to play a greater role.

HEFFNER: Is there some way, in your estimation, of providing that the court must play a greater role? I mean, you’ve talked before about, and you’ve mentioned several times, Constitutional provisions. It seems to me we do have to raise the question of whether the Constitution, in this area, as in the area of slavery, its protection essentially of the slave trade for a period of time, its protection essentially for limiting the suffrage to males, whether the Constitution and its provisions are sufficient as an explanation or excuse.

ABRAMS: Well, I think that’s a good and fair question. I’m not sure what I would do, even if I wanted to deal with this Constitutionally I’m not sure how I would change or think of changing the Constitution to accomplish what I’m talking about. I think what we need first is some greater leeway to be given to, and greater understanding when that leeway is exercised by the judiciary itself. I think that judges should come to play a greater role, to defend the dignity and well-being of witnesses before it. Even at some risk, and there’s always a compensating risk here. Even at some risk of therefore denying a defense counsel a chance to really go in and work his or her will and really do, perhaps, an effective cross-examination.

HEFFNER: Floyd, if you were to search decisions by the highest court, do you think you would find adequate reasons for judges generally, criminal court justices, in particular, to be concerned about playing a more active role?

ABRAMS: Reasons in the sense of examples?

HEFFNER: Yes, what happens to the judge who does do what you are suggesting?

ABRAMS: I don’t think that there are that many reversals which have come about because judges have done the sort of thing that I am talking about. Judges get a lot of leeway. Appellate judges really do understand that trial judges are the people on the scene, they’ve got to make the basic calls, the basic traffic calls, as it were, of what moves and what doesn’t move in a courtroom. Now, it has to be consistent with the Constitution. The Constitution effectively requires a cross-examination and full-blown, uninhibited cross-examination. That doesn’t mean, it certainly doesn’t have to mean, abusive cross-examination. And I think some of the things that come to mind in recent months involve what appear, at least to newspaper readers, to be abusive examination. There will always be cases in which the defense of the defendant is “I didn’t do it” or “You made me do it,” in which case you really have to let the defense counsel go a long way against the prosecuting witness to try to persuade the jury that that is so. There’s not much we can do about that. We can just try to watch out that at least people behave themselves and comport themselves with some degree of civility, so that the system can proceed and so that people won’t be afraid.

HEFFNER: You see, that’s why I asked whether indeed, in fact, in decision after decision the High Court has created an atmosphere in which the trial judge would be reluctant to do what you think he should be doing more frequently. Or whether this is part of your professions’ culture, whether this isn’t what your profession has said must be and that’s the way it is.

ABRAMS: I think it is more of the second than the first. I really do. I think that we have all grown up in a culture where objections are made by counsel. Judges look to counsel to object. Counsel know better than judges what’s going to happen three questions down the road. We are concerned, historically concerned as a people about judges playing the role of juries, superseding juries in their roles and so, we have rightly limited judges and what they can do. But I do believe…I think it’s both Constitutional and consistent with currently governing precedents for judges to play a greater role in this area and to insist…and many judges do, by the way, they really do…but to insist that lawyers behave themselves.

HEFFNER: You know, at the time of Watergate, there was a very interesting Op Ed piece in the New York Times which pointed out that so many of the people involved were lawyers and pointed out that the slippery slope toward activities, actions, behavior in court that you would say go beyond the pale, really begin in the teaching that goes on in law schools. That anything goes because what you have to do is win. Think that was a fair criticism? Because it was not a minor league university law school that this Op Ed piece was written about.

ABRAMS: I think that it is a problem in a few ways. One, yes, I think it’s the way it’s taught. But I think more broadly than that, it’s the way the system has existed for so long. Yes, it’s winning, but yes, it’s also that if all you know about the role of a lawyer is the first thing I said here, if all you know is that the lawyer is supposed to be zealous in his representation and if that’s what you graduate from law school knowing, then you’re willing to do almost anything. And if you also learn in law school how slippery the legal concepts are, how flexible they tend to be, how there seem to be two sides or six to every argument, what does one learn in law school but that. It’s very easy, it’s too easy, to graduate from law school thinking there are no rules. None. It’s all a game. I play and you play and a better person wins.

HEFFNER: You say rules, but what we’re really talking about are principles.

ABRAMS: Yes.

HEFFNER: Moral principles.

ABRAMS: I believe so.

HEFFNER: You know, once when you were at this table, the Chief Justice then, Warren Berger, had delivered a speech in which he was saying some of the things that we’ve been talking about. And he said, in part, “Our system is too destructive for a truly civilized people. In many instances trials by the adversarial contest must go the way of the ancient trial by battle and blood.” And I wonder in terms of our discussion thus far today, and we’re almost at the end of it, how you react now to those statements.

ABRAMS: I’d have to say, for myself, not yet. I’m not persuaded that we have to put aside, even to a significant degree, the adversarial system, the methodology or the like. I think we need a greater degree of civility and an end to the sort of brutality that passes for advocacy. I think judges can do that under the current system and I think that more and more judges are doing it.

HEFFNER: Well, I guess that’s the point that I’d want to come to at the end. You say more and more judges are doing it and yet, in recent times, we’ve seen so many examples of the brutal examination in court in defense of a client. It doesn’t seem to me that we’re moving up, but rather slipping down.

ABRAMS: Some of it is inevitable, it is inherent in your system, and I think in any good legal system. We must let counsel have a lot of leeway. We must have a lot of through probing, painful, sometimes, cross-examination. We’re talking about the liberty of people, we’re talking about capital punishment to people. We’re talking about money being taken away from people. We have to give a lot of leeway. But I think we can do that at the same time as we limit counsel in a fashion to norms of appropriate conduct. Who’s to say what they are, but we have to do it.

HEFFNER: You say, we have to do it. Is your profession now, in a half a minute, well…yes or no…is your profession doing it to your satisfaction?

ABRAMS: No. I think as a general matter, my profession chooses not to judge itself at all. And simply proceeds on an idiosyncratic basis that everyone is pretty much allowed to do what he or she thinks is the best thing to do. I think that’s got to come to an end.

HEFFNER: Judge not, lest ye be judged. The only trouble is that judge not and I suspect the profession will be judge.

ABRAMS: I agree.

HEFFNER: Floyd Abrams, thank you so much for joining me today.

ABRAMS:
Thank you.

HEFFNER: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as an old friend used to say, “Good night and good luck.”

Continuing production of this series has generously been made possible by grants from: the Rosalind P. Walter Foundation; the M. Weiner Foundation of New Jersey; the Mediators and Richard and Gloria Manney; The Richard Lounsbery Foundation; Mr. Lawrence A. Wien; and the New York Times Company Foundation.