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and the difficulty is enhanced by the necessity of considering in a mass many issues which under the other system could have been disposed of before trial. The burden upon the jury and the constant improbability of their sustaining that burden satisfactorily, is, of course, greatly increased for their inability to distinguish between and separate issues and to apply the law to them is necessarily largely magnified by the multiplication of issues, and the presentation at the same time and place of the law to the court, and the facts to them.
The discussion, however, is in large part academic, for the one system is gone, or is going fast, while the other has come to stay. It is a part of the politico-economic unrest which is busying itself with looking at things in a large way, and dealing with masses, rather than with individuals. He who is a part of the public, or of a class, must have his interests subordinated to the interests of the public or the class. It is this subjection of the one to the many which marks the age. Individualism, and the rights which inhered in it, and which distinguished the common law, is giving place to collectivism, and the largeness of the ends attained is the excuse for the sacrifice incurred in the attainment. So in the matter under discussion. In many cases, clients with complicated causes may justly complain of want of time and opportunity, on the part of the courts and the jury, to give maturity of consideration, and hence complain of miscarriage of justice, but in most cases, rough justice, and in some cases exact justice, will be done, and he who fails must solace himself in the thought that his smaller loss is merged in the larger common good.
In view of the adoption of this system in so many jurisdictions, of its evident assistance in celerity of adjudication, and of the satisfaction of those who practice under it, may we not say that the goal of simplicity in pleading has been reached, and that the struggle as to it is practically over?
But how stands the case with its handmaid-practice? Is it as simple and certain in its results, and as quick in the production of them, as the reasonable exigencies of the times demand?
The answer must be negative. Delays which are avoidable and inexcusable, and productive of failure of justice, occur too often
to satisfy the least exacting. At the same time, it cannot be doubted that the case against the law and its practice as to its delays and uncertainties, is most usually stated much too strongly. As is usual, when reform is desired, exceptional and extraordinary instances are selected as types of the system to be reformed and used as illustrations. It is true that cases have gone to courts of appeal, three or four or more times, and that in some of them the plaintiff has changed his testimony on each succeeding trial, and that it has taken twenty years or more for the ingenuity of counsel, assisted by the pliability of the conscience of the plaintiff, to get a verdict that could stand. But this would seem to be a defect in the ethics of the courts, which fail to disbar too resourceful counsel and, in the administration of the criminal law, which fail to convict a perjurer. It is true also that cases remain untried on the docket for years, and sometimes for decades, and, when the judgment comes, its fruit is
as dry as summer dust," but in most of such instances, the situation arises from the failure of any effort of either side to force them to a conclusion. Except in congested courts, where, each case must wait its turn, and thus cannot be quickly tried, there is usually no difficulty, when both sides desire a trial, to obtain it. Such congestion can be relieved only by the Legislature, by providing more courts or better judges, or by the judges trying cases more quickly. A reformed or better practice can give no relief in such cases.
To eliminate all causes of, and all opportunities for, delay, would require a revision and recasting of almost all the rules of practice, but I content myself with general suggestions along the most general lines.
Rules of practice should be assistive and compulsive-assistive to those whose aim is to make of them only a vehicle, for the presentation of the disputes of men to judicial arbitrament, and the speediest determination of such disputes, consistent with due presentation and deliberation-compulsive to those who would. block the wheels and retard the progress for their own ulterior purposes. They should be so framed that they shall produce
an orderly, systematic and prompt arrival at the end of litigation when all parties desire, and a compulsory arrival at such end when either party obstructs. With this purpose in view, the shortest possible period, consistent with due preparation in the simplest cases, should be fixed as a time in which various pleadings should be filed or steps taken. The principles of prevailing rules should be reversed. They contemplate periods of preparation for average cases. They should provide for periods for such cases as require the shortest preparation, and make exceptional those requiring longer, and the judge should be permitted, upon special application, and cause shown, to extend the time in such exceptional cases. In some states, the defendant has automatically thirty days or more to file a plea, after the declaration has been filed, and in some, sixty days or more in which to file an answer, after a bill is filed, and between each succeeding step thirty days are allowed. In many cases, this is not too much, but in the great majority it is time unduly consumed, without benefit to anyone. Ordinarily, both parties to a controversy consult counsel before suit is instituted, and each side is informed as to the contentions of the other. In such cases, but a short time is required for preparation and pleading. In other cases, the attack and defense are confined to well defined points, the law upon which can be digested and the pleading prepared in a few days. A suitor sues upon a store account, or upon a promissory note, or a claim for rent. The defendant knows instantly what defense he has-whether he owes the account, or has paid it, or whether he made the note or has paid it, or why he should not pay it, and whether he was or was not a tenant, and each of these defenses should be interposed in days, and not in weeks. So, in chancery, the respondent in an ordinary bill for foreclosure, or in any like simple cases, which readily occur to the mind, has his defense always at hand. Why should not, in such cases, a week suffice for the interposition of that defense, and if the pleadings be not limited to claim and answer, why should not the plaintiff reply in like time? When pleading at law requires more time for preparation, or the bill in chancery be for the stating of a com
plicated account, or for the dissolution of a trust, or for the restraining of governmental fixing of the rates of a railroad, or for like relief, the judge, upon application, can fix a special time for the pleading in a special case, proportioned to the preparation required. The vital thing is, however, the fixing by rule of the shortest practicable time for the shortest, simplest pleading, and making that the base from which to work in exceptional cases-creating what the railroad experts call an arbitrary, with an elastic differential.
Under the English practice, the judge has the power to shorten, as well as enlarge, the time in which under a fixed rule any proceeding may be taken, and it might be well to give him this power in this country, but it would apparently be better to fix a short maximum time for all cases, except those in which special cause is shown for an extension, for thus the burden of showing the injustice of the general rule, as applied to the particular case, would fall upon counsel, and they would soon come to comply, in all possible cases, with the fixed rule.
In order that causes may be gotten ready for trial without undue. consumption of time, it would be well in all cases, not triable at fixed times, or fixed terms, to have the judge, upon application of either party, fix the time of trial, after a statement by the parties of the witnesses to be procured, the difficulties to be met with in preparing for trial, and depositions, if any, to be taken, and such other matters as would enable him to determine what time should be consumed. Lawyers are too apt to give themselves an over liberal allowance of time to the detriment of their clients and their adversaries.
If we pass the delays which occur before trial, we are confronted with those which occur at the trial. It would be almost impossible to fix by rule or statute such methods of directing the conduct of a trial as to expedite it. The judge is the factor here. The length of examination and cross-examination of witnesses, the brevity or voluminousness of the argument of counsel upon objections to evidence, and to the jury, and the other numerous details, which shorten or lengthen the trial, rest with him, and his mental make-up and his sense, weak or strong, of responsi
bility to the litigants, to the government and to the public, whose representative he is, must determine the result.
There is, however, within the scope of legislative action, a matter of fundamental importance as affecting the speed and certainty of proceedings at the trial, which cannot be too strenuously insisted upon a sharp definition and separation of the functions of the court and jury.
The most certain way of attaining inexactness and injustice is by the making of the jury determiners of the law.
Judges, too timid to take responsibility, or too mentally inert to form clear, keen-cut conceptions of the conclusive probative force of the evidence introduced upon a trial, or of the evidence relating to a vital issue, or restricted by rules of practice, or decisions of superior courts, are wont daily to theorize abstractly before juries as to what the law is, and to leave them to apply it to the facts. But is it not clear that the power to apply the law is the power to declare the law in the particular case? And is it not clear also that in most cases there can be no remedy for a misapplication, because it is not known whether or not such misapplication has taken place? Most cases submitted to a jury embrace conflicting testimony, or inferences as to essential facts. The law applied in one way produces one possible finding, and in another way another possible finding. A general verdict is found and no human intelligence is allowed to penetrate the arcanum known as the "mind of the jury" so as to determine in which way it found the issue of fact, or how it applied the law given to it by the court, or whether the verdict is not a compound of misapplied law to well-found facts, or of well-applied law to misfound facts-in short, whether the verdict is right or wrong.
So long as the constitutions and the temper of the American people require jury trials, there would seem to be no remedy for uncertain verdicts and their injury to exact and speedy justice, except the complete divorcement of the function of the jury from that of the trial judge, and this can probably be effectively attained only by special verdicts to be rendered upon the demand of either party upon any one or more of the vital issues of the case and then the pronouncement by the court of the law to be applied to such finding, and the entry of a judgment thereon.