I particularly enjoyed Jerome Frank's writing because I wholeheartedly agree with many of his assertions. Frank stated that "when 'primitive' man loses his way...when he is terrified...or trapped, he turns to magic...Magic, then, was one of the ways of coping with practical problems." This "primitive" behavior, he observed, is present today. There is no objective measure of the accuracy of a judge's finding of the facts, but because of our desire for objectivity and truth, we are driven to deluding ourselves (modern legal magic) that somehow our system reflects the "truth." Sadly, in reality, it seems closer to say that "legal rights are...dependent on human guesses about the facts of cases."

If we recognize that such modern legal magic exists in nearly all cases where facts are disputed, then we must likewise take an analogous view of trial advocacy. It becomes clear that trial advocacy, and likewise, the entire trial process, does not serve to reveal the truth, or really, any truth at all. It would be erroneous to believe that by presenting such-and-such witness testimony, and so-and-so deposition, that we are able to inch closer to the truth. Trial advocacy is not like peeling the layers of an onion down to its essential core, but rather like prodding sheep into different pens. The more effective lawyer is the better shepherd, because he can prod and cajole better than the other, and the sheep go where he wants them to.

Of course, the problem here is- where is the justice? If going to prison is simply a matter of who your shepherd is versus the other shepherd, then it would seem that our legal system is but a sham. But is it possible to do better? Will we ever be able to do away with our "modern legal magic?" I'm not so sure.

-- AlexHu - 09 Feb 2009