Public Health Law Map - Beta 5 - Medical and Public Health Law Site

These problems with the selection of the cases and facts that give rise to legal
opinions make it difficult to evaluate legal problems prospectively. There is often
little congruence between real- world problems and the law as found in legal
opinions. For example, most legal opinions discussing the duty of a physician to
obtain the patient’s informed consent also involve proved malpractice. The opinions
do not discuss the malpractice because it does not involve any new issues. An
attorney reading the opinion may not properly appreciate the importance of the
underlying malpractice and attach too much significance to the technical requirement
for informed consent.
Taken in the long view, the common law tradition has been critical to the
development of our democratic traditions. In late–twentieth-century America,
reliance on the common law tradition of deriving law from judicial opinions has
given false direction to legal teaching and practice. The fundamental problem with
deriving legal rules from published legal opinions is that most law practice does not
involve litigation. Focusing on litigation ignores the role of lawyer as negotiator,
conciliator, and counselor, and it distorts the attorney’s perspective on the
management of nonadversary situations: “From the point of view of the parties to a
lawsuit, the costs are in vain; almost every litigated case is a mistake.” [Fisher R. He
who pays the piper. Harv Bus Rev. Mar–April 1985;150–159.] It ignores the issue of
prospective planning to prevent legal problems.
E. Administrative Adjudications versus Trials
The United States uses two different approaches to finding the facts in legal
proceedings. The civil and criminal courts use an adversarial approach, and
administrative law systems (state and federal agencies) use an inquisitorial approach.
Several other countries use the inquisitorial approach in their courts. In both systems
the opposing attorneys are charged with fighting for their clients; the difference is in
the role of the judge.
The United States uses the adversarial system in its courts. The opposing attorneys
have primary responsibility for controlling the development and presentation of the
lawsuit. The attorneys may not lie but have no duty to volunteer facts that do not
support their client’s case. The judge acts as a referee, seeing that the rules of civil
procedure are followed, especially the rules of evidence that concern the information
that the jury is allowed to see. Neither the judge nor the jury is expected to have any
special knowledge of the matters before the court. They are to base their judgment only
on the materials presented by the attorneys. In many cases the attorneys will ask that
persons with knowledge of the matter before the court be struck from the jury panel for
fear of bias. The premise of the adversarial system is that each attorney, through
discovery and courtroom confrontation, will flush out the facts concealed by the
opposing side. The judge’s role is to exclude questionable information, but the judge
has little power to bring out information that both sides’ attorneys choose to conceal.
In an inquisitorial system, the judge may question witnesses and inquire into the
presentation of the case and its underlying facts. The judge may be an expert in the
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