The Civil Advocate and the Multifaceted Functions of Dispute Settlement—Some Domestic and Cross-cultural Perspectives

Abstract

The Zeal of Civil Advocate is a valuable contribution to legal literature. Professor Schwartz identifies a vulnerable issue in chastising legal profession for not distinguishing between roles and responsibilities attributed to criminal advocates and those attributed to civil advocates. His observation that we too often use examples from criminal practice to justify responsibilities of civil advocates is a valid criticism. I write not to disagree with points Schwartz has made but to explicate a few points he has not made that I believe to be relevant to topic. Schwartz's conclusion that civil advocates should be held morally accountable for legal but immoral professional tactics and for such ends sought by their clients rests, at least in part, on his preliminary findings that the criminal defense lawyer is not an appropriate model for lawyer who engages in civil and that the rules of behavior for civil litigators should be drawn with primary objective of ascertaining truth. I regard both of these subordinate conclusions as correct but incomplete. While criminal litigation and civil litigation do differ in function, as Schwartz contends, their differences are not as clearly defined as Schwartz would have us believe, and if moral accountability of criminal defense lawyer is less than that of civil litigator, it is due more to peculiar constitutional provisions and interpretations in United States than to inherent differences between criminal and civil trials. Anthropological studies contain several illustrations of cultures in which criminal and civil processes are combined. Among Ifugao of Northern Luzon, there can be no criminal acts.' While both violations of contract and other wrongs and injuries are subject to penalties, the responsibility for initiating any prosecution rests with aggrieved; any damages, penal assessments, or physical punishment inflicted upon defendant are im-