QUOTING the late Jerome Frank' famous dictum that lawyers cannot distinguish between stability and paralysis, Marvin E. Frankel announces in this small but weighty book that the American adversary trial system is overdue for a general overhaul. Both jurists, Frank now passed from the scene, Frankel still in the thick of it, have been among our most astute observers of a flawed system and even their most outrageous overstatements have contained cores of neglected truth. That is why those who care about the efficacy of our legal procedures have always listened to them.
Frankel's interestingly reversed career -- he was first a law teacher and then a federal judge before returning to the private practice of law in New York City -- equips him to assess our adversay dispute-resolution procedures from nearly every relevant perspective. In putting Partisan Justice together he seems, predictably, to have relied principally on his most recent extended experience, that of federal trial judge. (Having resigned from that post less than a year ago, after 15 years of distinguished service, to go into private practice, Frankel's only recent experience on the front side of the bench was his spectacularly unsuccessful defense of financier Michele Sindona, convicted last March of looting the Franklin National Bank.) But in his busy courtroom Frankel could observe all manner of lawyers and litigants and all kinds of disputes. And his Southern District judicial colleagues have included most variants of the genus judge. He writes, in short, from a rich experience and with a practiced eye.
Frankel begins by describing, with an alarmingly total candor, his broad view of the way the trial system has been functioning. A system which every Law Day we say is the world's best for developing the truth -- for accurately reproducing past history -- too often is a battle of mismatched lawyers employing their unequal skills in an effort to subvert truth on behalf of paying clients. Their ultimate goal is simpler than truthtelling. The goal is winning.
Frankel thinks a trial should more closely approximate a search for truth. He does not address the question the importance of which Gertrude Stein reportedly reminded everyone as she died: What is the question? Is pure truth -- and what is that? -- so clearly the only proper end of trials? Frankel apparently considers this self-evident, and so beyond comment, although respectable analysts have thought it might be something slightly different, a reasonably satisfactory resolution to a dispute within a bearable amount of time, in which case Frankel's focus is slightly off.
Frankel identifies his villains easily: They're the lawyers. They are, he says "[at] center stage . . . sometimes loved and appreciated, especially by successful clients, but also denounced by others as 'mouthpiece,' 'hired gun,' 'mercenary warrior,' 'shyster.'" The advocate is "an all-purpose, surrogate villain, doing everybody's dirty work -- obstructing, perverting, distorting, blocking the high road to justice." Frankel is not quoting others; he is himself satisfied that "widespread practices" of lawyers are deliberately truth-frustrating. They include knowingly presenting false testimony of clients or witnesses; attempting through artful cross-examination to block the truth or to make what is true seem false; and deliberately failing to reveal evidence which would assist the court or jury to get an accurate understanding of the "facts" (that is, the truth).
In fairness, however, Frankel points out that the lawyer is often a scapegoat: Retained to fight and win in an adversary system so frequently extolled as England's most glorious gift to its colonies, he is then condemned for plying his trade too well. Furthermore, Frankel sees some subsidiary demons are here his vision must surely be 20/20. Judges, too, get sucked into the adversary pit, partly because so many of them were working trial lawyers before they went on the bench and may be incurable truth-benders, partly because the advocates before them tease them and taunt them into partisan postures.
And behind the villains and demons resides the occasional archfiend, although here I insist that ex-professor Frankel speak for himself. Many law teachers, he says, "recoil from the thought of practicing law . . . [and] choose academic careers as a way of avoiding the actual practice altogether." These professors, Frankel says he believes, "find it acceptable to make lives teaching others to perform in roles they [the professors, that is] find unworthy."
Having identified the goal (truth) and its subverters (lawyers, judges, law teachers -- and just maybe the pressuring client), Frankel devotes half his pages to some solutions. The author's description of the problem and its creators is so horrific that his prescriptions seem timid. This is the unfortunate price the author must pay for having employed extravagant means to get our attention. The reforms Frankel suggests, while offering no panacea, are worthy of the careful consideration which most of them are already getting. a
Obviously, Frankel believes we need to modify the lawyers' adversary ideal and he seems to think that a few more ethical canons would be a step in that direction, canons which would require lawyers to be less cozy with truth. He would like to see some structural changes, too, although one must read his book, and not rely on a short review, to discover how some of them might be expected to facilitate the search for truth.
Here is an unelaborated catalog: trial to jury should be less freely available to disputants; rules of evidence should be less cumbersome; maybe lawyers should be barred from some dispute-resolution tribunals; we should take a closer look at videotaped trials from which impermissible evidence and lawyers' diversionary stunts have been pruned; perhaps more disputes should be put to nonjudicial mediation.
And then there is Frankel's ultimate suggestion, so succinctly stated that it can be passed along verbatim: "In place of the poor people's Legal Services Corporation; we need an agency that might be named the National Services supplying to anyone who applies the assistance of counsel paid (or paid for) by the community."
Frankel's prose is tight and elegant and he is nothing if not provocative. It is probably regrettable, because irrelevant, that many will insist upon wondering how long this book was written before Judge Frankel decided to return to the private practice of law.