Ordering Proof: Beyond Adversarial And Inquisitorial Trial Structures

by Mark Spottswood

In typical trials, judges and juries will find it easier to remember the proof that occurs early in the process over than what comes later. Moreover, once a fact-finder starts to form a working hypothesis to explain the facts of the case, they will be biased towards interpreting new facts in a way that confirms that theory. These two psychological mechanisms will often combine to create a strong “primacy effect,” in which the party who goes first gains a subtle, but significant, advantage over the opposing party. In this article, I propose a new method of ordering proof, designed to minimize the inaccuracy or unfairness that arises due to primacy effects. A neutral third person, rather than the disputing parties, would prepare an opening “statement of the dispute,” which would take the place of partisan opening statements. In lieu of separate, partisan cases-in-chief, this neutral third party would also decide the order of testifying witnesses, balancing considerations of clarity, efficiency, and neutrality between the parties. This proposed ordering would, however, be subject to variations by agreement among the parties. In a jury trial, the presiding judge could perform these new functions, while a magistrate judge or an appointed master could do so in non-jury trials. After exploring the reasons why this new mode of ordering proof would likely improve the fairness and accuracy of our system without excessive cost or inconvenience, I propose a policy experiment to test the proposed method in a random selection of jurisdictions, so that its impacts on outcomes, costs, and litigant satisfaction can be measured.


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