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Adversarial Justice: America's Court System on Trial, by Theodore L. Kubicek
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Oh, those lawyers!
The legal profession in fact, the legal system certainly has a poor reputation in the United States. Proposed remedies, however, rarely go as deep as the ethics of the system. America's judicial system should not be a game that anyone can win, regardless of actual guilt or liability. Ted Kubicek, JD, describes the problems and proposes solutions. Above all, he condemns the adversary system of justice which is used to evade the truth and which makes winning the paramount goal.
Dr. Kubicek postulates that the attorney-client privilege of communication makes the truth more difficult, even impossible, to determine. The adversary system goes hand in hand with the privilege of communication since neither can exist without the other.
He advocates moving instead to an inquisitorial system, in which truth is the goal of both parties, not just of the party that would gain thereby. He then shows how the elimination of adversaryism would automatically remedy other problems endemic to the system of justice, too, such as the passiveness of trial judges and juries.
Scrapping the adversary system would abolish trial and pretrial procedures and evidentiary rules that confuse law enforcement and trial participants alike. Criminal verdicts would not then depend upon confusing evidentiary or technical matters having no connection to the guilt or innocence of the accused.
This book is intended to encourage the legal profession, the judiciary, and the organized bar to remedy America's counter-productive judicial procedures. The argument will also interest anyone who has ever had to go to trial.
"Kubicek here attacks the American adversarial system of criminal justice as a system that allows too many of the guilty to escape unpunished and urges the adoption of an inquisitorial system in which all parties are enjoined to seek the truth, thus eliminating what he sees as the contradiction between attorney's duties to serve as a zealous advocate and their duties as officers of the court. Other recommendations include eliminating attorney-client privilege, eliminating exclusionary rules concerning illegally obtained evidence, and putting voir dire and jury selection entirely in the hands of judges."
--Book News
- Sales Rank: #1899371 in Books
- Published on: 2006-09-01
- Original language: English
- Number of items: 1
- Dimensions: 9.00" h x .50" w x 6.00" l, .65 pounds
- Binding: Paperback
- 224 pages
Review
Iowa lawyer Ted Kubicek, a seasoned veteran of legal warfare, though mostly in probate, has written an interesting book, Adversarial Justice: America's Court System on Trial, about the defects in the American system of adversarial justice. That system, as most lawyers and many of their clients know, puts a premium on winning and sees the pursuit of justice as a contest involving warriors leading the charge on each side.
The original goal of the adversarial ideal rested in the notion that each side should have a chance to present the strengths of its own case as well as the weaknesses of the opposition. Lofty as that goal may be in theory, it has degenerated too often into legal gamesmanship in tricks of discovery and trial tactics that weaken the prospects of getting to the truth.
As Dr. Kubicek's many quoted authorities note throughout the book, the adversarial system puts too much emphasis on zeal for the client and too little on presenting truth to the court. The author joins others in suggesting that lawyers ethics might well be revised to place primary emphasis on a duty to the court and only a secondary duty to the client.
The book... emphasiz[es] the agreement among legal scholars that something needs to be done to restore truth-seeking to the adversary process.
The concluding chapter fleshes out the author s suggestions for change, none of which is especially new but each of which deserve serious attention by those overseeing this system before arbitration and mediation render the adversarial trial a dinosaur. The 200-page text is easily readable and might serve well in a paralegal course or as a companion volume in a legal ethics course in law school.
----Rudolph J. Gerber, retired appellate judge, Arizona Court of Appeals
This is a refreshing and alarmingly candid scrutiny of the American bar and the American sys�tem of justice, and what we can do to reform the broken system.
This book should be required reading in all law schools. Because of its clarity, it also warrants being on the must reading list of the layper�son, who has long sensed that some-thing is seriously wrong with the American justice system, but also wonders specifically what apart from the interminable delays and prohibitive costs incurred in seeking justice is wrong and what can be done about it. Further, the perusal of this brilliant and courageous critique should be considered imperative for legal practitioners, most of whom are fully aware that something is broken, if not indeed rotten, in the state of their chosen profession. --Walter B. Mead, is Professor Emeritus, Department of Politics and Government, Illinois State University
Once I got started reading Adversarial Justice: America s Court System on Trial I found that, like a good novel, it was hard to put down. There are so very many good things I want to say about it that I don't know where to begin. Author Theodore L. Kubicek did a beautiful and thorough job from beginning to end. I can certainly see why the publisher was anxious to put it in print. A little way into the book, I said to myself that this is material that should be required reading for law students. Later on, I found that Dr. Kubicek felt the same way. I guess that like most laymen I had just taken our justice system as it is for granted and had come to believe that "it is the best system in the world." Kubicek certainly opened my eyes and made me see it in an entirely new light.
I was especially impressed by the way that he took the words and writings of others and were able to lead into them without appearing to be repetitious. The average person would have used such terms as he said, thought, felt, wrote, explain, etc. Dr. Kubicek must have spent a great deal of time in selecting interesting and unique ways in making the bridges in the material.
I can't imagine how many hours must have been spent in research and writing but every minute was well paid for by the results. All I can say is: well done, great job, very professional, a credit to the legal profession. The author's recommendations deserve to be implemented.
Dr. Kubicek has every right to be proud of his publication. I am delighted to have it on my bookshelf!
----Dr. Louis C. Jurgensen, Professor Emeritus, University of South Florida
About the Author
Ted Kubicek, JD, practiced law for thirty-nine years.
He has served as CEO of a Savings and Loan, as an adjunct legal assistant teacher at a community college, a tutor for GED students, a Fellow of the American College of Probate Counsel, and an arbitrator. He has authored many articles for publications including:
You and Your Estate (1988), and
Your Worldly Possessions, A Complete Guide to Preserving, Passing on, and Inheriting Property (1992).
Dr. Kubicek received his JD degree cum laude, having served as one of four editors of the Iowa Law Review.
Most helpful customer reviews
4 of 4 people found the following review helpful.
Adversarial INjustice
By Walter. B. Mead
Author and highly respected attorney Ted Kubicek provides in his book,ADVERSARIAL JUSTICE:AMERICA'S COURT SYSTEM ON TRIAL, a long overdue critique of the American court system, which he perceives as seriously and inevitably flawed by the fundamental motive inherent in its very structure -- specifically, the incentive to win rather than to produce justice. In this misguided pursuit of 'victory', truths are suppressed or distorted, both juries and judges are left to render decisions on skewed evidence and arguments, and the costs are tragically born both by those individuals who are euphemistically "brought to justice" as well as by the larger society. Kubicek cites other legal scholars as well as relevant cases in the development of his argument. And he provides an alternative to the adversarial approach to litigation in the inquisitorial (one versed in philosophical discourse is tempted to use the term 'Socratic') approach represented in most of the court procedures of continental Europe. His thesis, clearly and persuasively presented, inevitably leads to an awareness of the need for fundamental changes in the principles and practices of the American judiciary and related reform of legal education -- a conclusion that is likely to be strongly resisted by many of those who have become accommodated to, and rewarded by, the present system. It is an insightful and scholarly work that ought to be required reading for all pre-law students.
Review by Professor Walter B. Mead, author of EXTREMISM AND COGNITION: STYLES OF IRRESPONSIBILITY IN AMERICAN SOCIETY (Kendall/Hunt Publishing Company, 1971) and THE UNITED STATES CONSTITUTION: PERSONALITIES, PRINCIPLES, AND ISSUES (University of South Carolina Press, 1987).
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