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The adversary system demands that two lawyers become not only fully
conversant with the facts of a case and the evidence supporting those
facts, but it also requires that they carefully consider what "tricks"
the opposing counsel is likely to use. This makes the preparation of a
trial under the adversary system an expensive undertaking. Lawyers with
their office expense, malpractice insurance, taxes, regulatory fees, not
to mention personal salary needs are lucky to make ends meet charging
$75 or $100 per hour. Eighty hours can easily be consumed moving a
very simple case through to the end of trial.
Considering that the average household income in America is about
$31,000, it quickly becomes apparent that few people of average means
can consider availing themselves of their constitutionally guaranteed
right to have their dispute heard and decided by a jury. In fact,
experts have estimated that only 5% of the American population has
enough wealth to pursue dispute resolution from filing a lawsuit through
a trial.
One often hears that contingency fee arrangements substitute for
hourly billing arrangements for people of average means. This is true
where relatively large amounts are at issue and ultimate collection of
the judgement is assured. But if a dispute involves $10,000 or $20,000,
which is an amount that a family earning $31,000 per year is likely to
be fighting about, a trial by one's peers will cost more than is at
issue. In these cases the lawyers get together behind closed doors cut
a deal and force their clients to accept it whether it is fair or not.
By contrast, in Germany, which follows the inquiry system of law,
it is considered a societal good to have all disputes large and small
properly decided in open court. So in Germany large cases are charged an
extra fee to fund an account which subsidizes the costs of smaller
cases. The system in Germany is cheaper overall because only one court
appointed lawyer is involved in a case. He is charged with gathering the
facts and presenting them to judge and jury. The fact that only one
lawyer is involved also keeps costs down because he doesn't have to
worry about countering "tricks" from the other side. Although both
sides are allowed to hire their own lawyer to ask additional questions
at trial, few people actually incur this expense, particularly on
smaller cases.
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