Is this a question? if it is, I remeber the Damska's classic: http://yalebooks.co.uk/display.asp?k=9780300051193 which explains well some differences...On the other hand, I think the civil procedure has became in recent years more 'adversial' even in Continental Law countries, with some evident drawbacks (systems started leaning towards parties with deep pockets, etc) but there is a lot to be talked on this topic…

I am of the opinion that this system does benefit the parties (litigants) as well as the court officials. The duties of the court officials are lessened whilst also the parties are given the freedom to lead their prosecution without unnecessary court intervention, and so on.

It clearly benefits the courts officials (especially when they can reject a cases because it was not filled using the proper writ), as it tends to render litigation more formal. It also benefits the parties who know the law, or who could hire lawyers to do the work. But in mixed systems (continental civil law) that adopted elements you have to see how the ideas became bastardised, to say so and have negative consequence. Formalism of law, already strong, enhanced. Access to justice restrained (indirectly of course, but very efficiently). People who generally ignore the law or too poor to hire lawyers, dropping litigation in high numbers. And so on…Basically you have legal systems extending without limits in theory ‘rights’ (without any extra expenses for courtrooms, judges salaries, etc) but in really ‘rights’ that are just on paper. More & more if you are a dog, you have lesser ‘rights’ or no rights at all. Dunno who is in a mixed system like the South African one, I am just talking about what I have observed in selected continental law jurisdictions...

Hi. This is an interesting question. It strikes me that some of the differences can be counted as either benefits or detriments, depending on answers or assumptions regarding wider questions of how best to organize a society—in particular, whether a society should be more privatized or less so.

As one sees in the United States, an intensely adversarial legal system that tends to give the litigating parties overall control over both civil procedure and litigation in general tends toward a massive privatization of the legal system and court process. From the perspective of neoliberalism, which obsessively favors privatization of societal institutions and the erosion or eradication of traditional public institutions, this clearly would be a benefit.

In keeping with Liviu Damsa’s observations, the U.S. adversarial legal system clearly tends to take “justice” out of the hands of the public in general and delivers it into the hands of lawyers (and those who can afford their services). A legal system with extensive rules regarding formal pleading is a system inherently controlled by lawyers and those who can pay for their services. The traditional Blackstonean and pre-Blackstonean English common law system had even more elaborate procedural requirements than most legal systems tend to have today, and was a system that served the interests of aristocrats, gentry, and especially lawyers as such. Such formal pleading requirements were relaxed somewhat over the course of the nineteenth century in the United States and other Anglophone nations, but enough remains that the legal system and court system remains largely inscrutable and inaccessible to lay people without the assistance of lawyers who can use the “magic words” that can open the doors of the court and get its attention.

It is somewhat ironic, perhaps, that the participants in one of the world’s first great democratic revolutions, the American Revolution, maintained a legal system that favored aristocrats and aristocratic values—though that may just further illustrate the point that various historians have discussed, that the American Revolution was in many fundamental ways only moderate or even conservative compared to the French Revolution or other later revolutions, hearkening back to mythical ancient freedoms of “free-born Englishmen” rather than looking forward to confront modernity in self-consciously new ways. [Granted, the American Revolution was a mix of both impulses in practice, and as such might represent yet another example of what historians have described as “backing into the future,” or confronting modernity by clinging fancifully to mythical earlier traditions.] Anyway, it strikes me as ironic that Americans, who were largely products of the Protestant Reformation who had tended to embrace each individual’s right to read and interpret holy scripture and to toss out the requirement of a priest to interpret scripture (in Latin!), should nevertheless adopt a more Catholic-style approach to the legal system in which a lawyer, like a priest, was needed to speak and interpret the quirky, semi-foreign language of the law and get access to justice. [But I probably shouldn’t overdo America’s early Protestantism, because many of the original colonies remained dominated by the Church of England, which back then even more than now remained relatively close to Catholicism, including the use of Latin.]

In theory, justice is not something that may be bought; but in reality and in actual practice, procedure does tend to be something that can be bought, as well as used as a weapon by those knowledgeable and experienced in manipulation of procedure against those who are not. There’s a famous quotation that I think is attributed to long-time U.S. Congressman John Dingell of Michigan (though it might date back to an even earlier time) to the effect that, “I give you substance and you give me procedure, and I’ll screw you every time.” That statement expresses the realization that wherever substantive justice might lie in a given case objectively or in theory, whoever controls procedure has great leverage over the actual, subjective outcome of any given subjective court proceeding. [And the same goes for mastery and manipulation of America’s complicated rules of evidence.] In American-style adversarial litigation where the judge is supposed to sit as a passive neutral referee over the litigants’ ongoing procedural badminton game, whoever can afford the most, and highest-grade, procedural maneuvers has a huge advantage. Large, high-priced firms and experienced, high-priced litigators will be more familiar with the wide array of procedural motions and tricks that potentially may be tried, and litigants with deep pockets can pay for such procedure, which in practice tends to give the wealthy and their attorneys multiple “bites at the apple” of justice that poorer litigants with less experienced attorneys cannot afford.

That’s all sort of vague and general, but here are some more specific points. Some of this is drawn from various articles by Maximo Langer, a law professor out at UCLA who has studied differences in legal systems and legal procedure as reflected in international war crimes tribunals (where judges from common law systems and civil law systems have to come together to agree on hybrid procedures for how to prosecute war crimes defendants).

One thing the American adversarial system and its corresponding civil procedure does a lot, I guess more so than Napoleonic Code-derived legal systems traditionally have done, is to allow and actively encourage parties to settle cases, really at any time in the litigation from the very beginning to just before a judge or jury verdict might be issued. This has the effect of massively privatizing the law in a sort of interesting way. That is, although the litigants are using the (publicly funded) court apparatus for resolving their dispute, they also can pull the litigation out of the public realm and convert it to a (mostly) private matter at almost any time by settling, with the court’s/judge’s blessing. At one level, this is perhaps efficient and a benefit as such: cases are resolved, hopefully in a manner satisfactory to both sides, without going all the way through the full court process. But as Prof. Langer points out, this can also short-circuit the development of law as a public institution, in which the public has an interest and to which the public has rights. Traditionally in a civil law jurisdiction, once a case is brought in a court, it is a public matter requiring a public resolution and decision. [Langer is more concerned with criminal prosecutions, and the difference between American-style plea bargains versus Continental-style inquisitorial prosecutions is probably even more dramatic, but I think the same overall distinction also applies to civil suits between common law and civil law jurisdictions.] That is, depending on the case, the public may have a very significant and legitimate stake in having particular legal issues addressed and legal questions answered. In the American system, the adversarial parties, with their power over the litigation and the procedure, can short-circuit that potential evolution of the law at virtually any moment by reaching a private settlement agreement. This power to derail the potential evolution of the law is especially striking in a precedent-based common law system like that in the United States—it means that legal decisions and court opinions that could help judges and the overall legal system to figure out how to handle problematic legal issues can be bottled up by litigants. So some areas of the law can potentially be prevented from developing or becoming settled and established by parties’ power to prevent the issuing of opinions in those areas of law. The settlement agreements typically involve the sealing of court records, also, such that information that might be valuable or necessary to the public and perhaps appropriate for public disclosure can also be bottled up and kept closely private by litigants. [For one example I ran into years ago, the records from major U.S. federal antitrust litigation back in the 1960s-1970s regarding an alleged conspiracy by the major U.S. auto manufacturers to prevent or delay the introduction of exhaust-control devices on their cars were sealed pursuant to a settlement, which denied the public access to that information back then and still does today, more than forty years later.]

So anyway: at least in the United States, civil litigants can use the (publicly funded) court system, and they can potentially use it very heavily, over the course of several years, with all manner of discovery, procedural motions, etc.—burdening the (publicly funded) court system potentially almost without limit—but at the last minute, perhaps even right before a jury reaches a verdict, the litigants can privatize the whole matter with a settlement, and the public is treated as having no accrued stake in the outcome, and the (publicly funded) court sees its role mainly as guaranteeing the terms, including secrecy, confidentiality, non-disclosure, etc., of a (privately arranged, although court-supervised) settlement.

That strikes me as interesting and problematic, though entirely in keeping with a neoliberal vision of fundamental privatization of society together with the withering (and perhaps hijacking or parasitizing) of public institutions.

Regarding another of Damsa’s observations that I think is quite correct: the higher the level of formality and proceduralization of legal proceedings, and the greater the control over procedure by adversarial parties, the higher the barrier for the poor and less educated to get meaningful access to the courts. Societies and their court systems can seek to mitigate this through public legal aid services and such, but even at their best, they never really level the playing field for less advantaged litigants overall, and public budgets for legal aid also can be slashed (as happened dramatically a few years ago in the UK, and probably has been happening gradually in various states of the United States for decades). Representative Dingell’s distinction between substance and procedure is, I suspect, related to Damsa’s distinction between rights in theory and rights merely on paper: control over procedure, and the ability to purchase procedure, may tend in practice to reduce substantive justice and rights to mere rhetoric on paper.

Some of this discussion assumes significant distinctions in wealth and power between litigants, and certainly that is a common situation in a lot of litigation in the United States and other nations. But of course, a good many civil suits in the United States may involve two large, wealthy, powerful corporations each of which is represented by high-priced major law firms who know their way around procedure very well. In such cases, the parties may be pretty evenly matched. Yet the issues about the parties perhaps monopolizing and overusing the (publicly funded) courts, prior to arranging a private settlement that denies the public it’s arguable “right” to a public resolution of important legal issues, may still remain.

I am admittedly not that sympathetic to neoliberalism and the whole wave of privatization of society and erosion of public institutions that started so visibly with Thatcherism and Reaganism forty years ago. Others, like members of the Federalist Society in the United States, will doubtlessly feel differently about all that. It does strike me that America’s elitist, aristocrat-favoring, lawyer-dominated, procedure-heavy legal system—in some ways so out of keeping with the democratic and egalitarian ideology that were also part of the nation’s foundation and early history—actually pointed the way toward neoliberalism decades or centuries before the rise of neoliberalism as we know it today. For already in the 1800s if not earlier, it was a legal system that clearly favored accumulated wealth and power, as well as a partially privatized quasi-public institution (with (private) lawyers as officers of the (public) court), based in large part upon privatized control and manipulation of procedure by the specially entitled, privileged profession that we call lawyers.