Lawyers in civil litigation are sometimes criticised for ‘excessively’ adversarial conduct. On the one hand we might argue that clients are entitled to expect that their lawyer will represent them as zealously as possible within the bounds of the law. Any attempt by lawyers to moderate adversarial advocacy on behalf of clients in civil litigation might be seen as an unjustifiable usurping of the role of the judge in our adversary system. On the other hand, ‘excessively’ adversarial advocacy by their lawyer might be harmful to clients because it wastes their time, money and energy, and ruins important business or personal relationships. Moreover, as officers of the court, lawyers are considered to have responsibilities to truth and fairness in litigation that override clients’ short-term self-interests.
The different roles of criminal defence and prosecution lawyers are clearly delineated by the very nature of a criminal trial as a public forum for determining guilt and innocence and upholding the rule of law. In civil litigation, however, it is not so clear where the public and the private aspects of the process begin and end. That is, to what extent is civil litigation a public process in which fairness and justice must be paramount, or to what extent is it a private dispute resolution process which the parties are free to control in their own interests?
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