The adversarial system of justice practiced in the United States presumes that each of the opposing parties in a lawsuit will advocate for a ruling in its favor under the facts and applicable law, and an impartial group of jurors — or a judge or group of judges — will decide what the result should be based on those adversarial presentations.
The adversarial system applies not only at the trial court level but also on appeal. Although experienced appellate advocates could debate at length what style and tenor of advocacy is most effective on appeal, the truth remains that it is the duty of an appellate advocate to argue for the best possible result that favors his or her client. Nevertheless, as I now turn to explain, there is one aspect of the appellate process for which an “adversarial” approach is not especially well-suited.
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