Law professor Geoffrey Hazard is well-known in legal and academic circles as an expert on civil procedure and legal ethics. So when he (with co-author Dana Remus) writes an article on the use of rhetoric in civil litigation, it’s well worth reading, even if it never mentions class actions specifically.
The problem that Hazard and Remus set themselves up to address is whether recent ethical lapses by lawyers (including some covered here) can be prevented by stronger ethics rules, or by moving away from the adversarial system of litigation. Hazard and Remus argue that the best solutions to areas where advocacy may have overtaken a search for truth in litigation lie in procedure, rather than ethics.
We therefore reject the suggestion of many critics that the problems of advocacy are properly addressed by reconstituting our legal system. We believe that solutions are better sought in the rules of procedure and evidence and in the law governing lawyers.
In fact, according to Hazard and Remus, there is no "objective truth" in litigation:
The assumption that lawyers, judges, and jurors can access the objective truth of a litigated legal dispute is incorrect and unwarranted. As an initial matter, and as Aristotle explains, uncertainty inheres in any context of “practical knowledge”—any context of human affairs. This uncertainty is heightened in the subset of human relationships that deteriorate into litigation. Litigation signifies that the parties lack a shared understanding of the facts and differ over proper application of the law. The parties may agree on some facts—for example, who owned a particular car, who completed the accounting, or who was formally responsible for compliance measures—but, by definition, they will disagree on others. Similarly, they may agree on some aspects of applicable law but will necessarily disagree on others.
It’s certainly true that, given the various cognitive biases human beings exhibit, finding an objective "truth" in a lawsuit may require superhuman effort. But Hazard and Remus go further, arguing that the strength of the adversarial system is that it doesn’t focus on a search for truth.
The critics’ approach diverts attention from what we believe to be the proper focus of reform efforts—the extrinsic regulatory controls of procedural rules, rules of evidence, and the law governing lawyers. These controls seek to set the moral risk of the lawyer-advocate’s function at a socially accepted level by counterbalancing economic pressures on lawyer-advocates to engage in questionable or improper conduct. To the extent that lawyers are exhibiting the dishonesty and deceit that critics allege, the current risk level may be too high.
Instead, they argue (as a number of academic have over the years) that the adversarial system works best at resolving questions of fact, even if it’s just providing a flawed but final answer to certain questions.
We have defended our system of adversarial advocacy not as capable of discovering objective truth, but as capable of constructing legitimate and authoritatively accepted truth.
In the end, the normative ("should") part of the article is a little weak, focusing on how "good" lawyers are good advocates, and it’s just the "bad" ones who give advocacy a bad name. As an old friend of mine used to say, this kind of argument is as effective as defending the jury system by saying "Good juries convict guilty people." But since Hazard and Remus are responding to largely academic criticisms about the American justice system (I assume no one in a position to enact legislation is seriously considering a ground-up reform of litigation), it’s probably not entirely fair to criticize them for not offering practical solutions to excessive rhetoric or truth-shading.
Nonetheless, Hazard and Remus offer some interesting observations about how advocacy and rhetoric work in legal argument. And they offer an excellent introduction to how Aristotle’s classic Rhetoric applies to modern lawyering.