Trials Then & Now

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Thomas Hobbes famously proclaimed in Leviathan that Where there is no common power, there is no law, where no law, no injustice…No arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death: and the life of man, solitary, poor, nasty, brutish and short.”

Just as life pre-law was nasty, brutish, and short. So were trials pre-18th century.  According to historian J.S. Cockburn, almost no trials lasted longer than 20 minutes. And up to 25 trials were heard in one day by a single judge and jury. In that quick time, the judge and jury would decide the fate of the accused, often representing themselves. Who were then forced to endure the punishment, without barely any chance of appeal.

By the early 19th century, the court system shifted towards the adversarial system that we have today. Rules of evidence became more entrenched, rights became more respected, and party autonomy was birthed. With the rise of party autonomy, parties became expected to provide the evidence to the neutral decision maker, who passively heard the evidence.

It is the context of our adversarial system that former Supreme Court Justice Antonin Scalia and lawyer Bryan Garner, advise lawyers on how best to make their case. They write in their book Making Your Case:

All of us are more apt to be persuaded by someone we admire than by someone we detest… Your objective in every argument, therefore, is to show yourself worthy of trust and affection. Trust is lost by dissembling or conveying false information… by mischaracterizing precedent to suite your case; by making arguments that could appeal only to the stupid or uninformed; by ignoring rather than confronting whatever weights against your case. Trust is won by fairly presenting the facts of the case and honestly characterizing the issues; by owning up to those points that cut against you and addressing them forthrightly; and by showing respect for the intelligence of your audience.

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