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University of Nebraska School of Law: W. G. Hastings. University of North Dakota School of Law: R. L. Henry, Jr., and H. A. Bronson.
University of Pennsylvania School of Law: William Draper Lewis, Francis H. Bohlen, William E. Mikell and J. W. Amram. University of South Dakota School of Law: Marshall McKusick.
University of Southern California School of Law: Frank M. Porter.
University of Wisconsin School of Law: Eugene A. Gilmore, Henry S. Richards, E. G. Lorenzen and Burr W. Jones. Western Reserve University School of Law: Walter T. Dun
Yale University School of Law: William Howard Taft, Henry Wade Rogers, Simeon E. Baldwin and John K. Beach.
Oklahoma University School of Law: J. C. Monnet, W. A. Seavey and J. B. Cheadle.
University of Texas Department of Law: Robert E. Cofer. Vanderbilt University Law Department: W. K. McAlister. The President:
On account of the compression this year of the program of the four allied associations into three days, and for other reasons as well, it has been found advisable that this Association should hold a joint session with the Section of Legal Education of the American Bar Association, and that joint session will be held on Wednesday, at 2 o'clock.
The President on motion duly made and seconded appointed as the Auditing Committee, Professor Edward R. Thurston and Professor F. B. Crossley; and also appointed as a Nominating Committee Professor A. H. Tuttle, Dean Harry S. Richards and Professor Manley O. Hudson.
The President then delivered the annual address.
(The address follows these minutes, page 890.)
Edson R. Sunderland then delivered his address on The Teaching of Practice and Procedure in Law Schools."
(The address follows these minutes, page 908.)
I have asked Mr. Ballantine to discuss the paper which has just been read by Mr. Sunderland.
Henry W. Ballantine, of University of Wisconsin Law School: It is not surprising that the greatest difference of learned opinion should exist on this subject of practice courts, for the reason that we are all apt to have very different things and very different functions in mind when the practice courts are mentioned. It is a problem of the utmost importance and delicacy to ascertain what is the true function and plan in conducting practice courts. Their development doubtless will continue to be hampered until this function comes to be better understood than it now is. If they are thought of merely as imitation courts, mock courts, to conduct a species of parlor theatricals, no one can be expected to take them seriously. Professor Sunderland's conception of the function of a practice court is, as I take it, that they are a supplement to a course on trial practice and also a means for co-ordinating the various branches of legal procedure, pleading, evidence and practice; putting the entire machinery of the law into harmonious operation.
It appears to me that Professor Sunderland has performed a signal service to the cause of legal education in working out in a large law school under difficult conditions a scientific method for conducting practice courts. Other schools may have done something similar, but I do not happen to be familiar with them. The dealing with real cases, cases that are arranged and enacted, is important in eliminating the objection of witnesses so frequently made to the artificiality of conducting the examinations and getting evidence of facts which are purely supposititious and occur only in an arbitrary statement. It eliminates the objection to the absurdity of the cross examination of witnesses as to facts which they have not observed. It adds a human interest to the trial that it is based upon actual transactions.
One point that I should like to suggest in connection with the practice court is, that perhaps there may be a tendency to expect
too much of the practice court; that is, to impose too heavy a burden upon those who are conducting it. It is too much to ask of the practice court to teach the art of pleading, the art of introducing evidence, and the art of conducting the examination of jurors and witnesses, and the art of drawing instructions for the jury. These matters ought to be taken up in separate courses. For instance, in the course on evidence the matter of the examination of witnesses might be practised; in the course on pleadings, the matter of drafting pleadings be considered; and in the courses on contracts, torts and damages valuable training could be obtained by requiring the student to draft up instructions stating briefly the propositions of law as applied to particular statements of facts.
For my own part I believe the true function of the practice court is not so much perhaps in teaching procedure, useful as it may be along this line, as in developing independent confidence and initiative in the working up and handling of a case as a whole, learning the methods of research and preparation upon which the success of an all-around lawyer will so largely depend. The trial itself as conducted in a practice court is by no means the main point, although perhaps a necessary stimulus. In practice one finds as one meets the young law graduate that lack of accuracy, thoroughness and patience are apt to characterize the beginner as contrasted with the old practitioner. The young man is in a hurry to rush into court without adequate preparation. This suggests another point: That one must not attempt to rush through a case at a single session. Cases should be taken up step by step, with all the precision and accuracy which can be insisted upon. No trial should be permitted to begin until the witnesses have been consulted and until an elaborate trial brief has passed the criticism of the instructor.
The objection will of course be made to practice court work that it is impossible to take up such work in the law schools; that it occupies too much time. This is a serious difficulty; but if the work of the practice court be reduced to two cases per man in the third year, which would seem to be a minimum certainly, we shall find the time for at least one course in practice court
work. Surely we now devote a dis-proportionate amount of time to certain subjects as compared with others, and possibly by a re-arrangement of the curriculum, as suggested by Dean Bates, we could economize enough time to take up this work and at the same time cover substantially all the ground which we now
Are we not following at the present time a somewhat hopeless delusion in trying to cover too great an area of the field of law? The time of the student is now occupied in reading various assignments made by different professors in different case books, so that he is largely engaged in the mechanical process of reading with little chance for independent thought. It seems to me that we are swamped with cases, and that we are in danger of warping the minds and taking away the individuality of our students. Could we not make our case books a little more selective, devoting more time to the elaboration of the crucial problems, and omitting more of the minor matters. It is the aim of the law school to develop a legal mind, to train a student to work out legal relations in all their phases, and to handle law as a science. We are, however, in danger of falling into something of a rut with the case system instruction as it is. We follow the same mechanical routine day after day, course after course, and year after year, so many pages per day. Is it not possible to introduce a little variety into the legal diet? Dean Wigmore, for instance, in some of his recent case books, has introduced a considerable amount of problem material, examination questions and brief abstracts of cases without stating the result. Now, by making our case books more selective and introducing problem material after the manner of the texts in mathematics, we can require a process of creative individual work such as is done by an author in writing a book and ought to be done by a student in connection with his reading.
Finally, a certain amount of the work of the practice court is a good supplement to case reading. There is certainly an urgent demand for such work on the part of law students. That law school is certain to prosper-at least in attendance-that has a reputation for good practice court work. In the practice
court the student must diagnose his case. He must draw his pleadings, which he can support with the proper evidence. He must plan ahead with all possible foresight as to how to get in his evidence and how to exclude the evidence of his adversary. The important part is not the trial, but the leading up to the trial and the preparing for it. After such training he will not find himself helpless when he is confronted with problems rising in actual practice.
It appears to me that no idea can be entertained of making any radical improvement on the law school instruction by any method which merely aims at imparting more legal information whether by lectures or text books or cases. It is a hopeless delusion. The only hope of any great improvement is, I believe, by some plan which will call out more effort on the part of the student, which will make the student do more for himself, which will in some way-I do not profess to say just how-develop his own power and ability, his habits of research, his initiative and ingenuity, which will call out the creative faculties of the man and enable him not only to handle his own problems, but to assist in improving the administration of justice, and in meeting the social needs and demands as to which guidance and creative leadership will be expected from lawyers.
I hope Mr. Pound will be willing to say a few words to us.
I am reminded of a young lady who called upon a lawyer and wanted to prosecute a newspaper for libel because it had announced that an engagement existed between her and a certain. young man, and that the engagement had been broken off, and her complaint was that the statement couldn't be true because it never had been broken on. Now I must reply to the charge of the President that I begged off by saying that I am not conscious that I ever was begged on.
I do not know that I can contribute anything of value to this discussion except possibly one suggestion. In Professor Sunderland's admirable paper we were told that the law schools