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we anticipated, and we have stopped to analyse the situation and propose remedies. Disappointment and discontent are widespread and the spirit of unrest pervades everything. Nothing has entirely escaped.
It would be strange, indeed, if the law, which touches society so closely, were not included in the drag-net indictment which public opinion has found against modern social institutions. But the gist of the charge has been the administration of the law, not the law itself. With popular legislative assemblies constantly employed in enacting statutes with the sole apparent purpose of pleasing every passing whim of the people, there could hardly be any plausible excuse for the complaint that the law-making power is not responsive to popular wishes. The people seem to have just the laws and all the laws they want. Statutes appear quite fully abreast of current ideas.
But it is different with legal administration. Here the people act through a highly trained, but conservative, profession, the members of which are not directly responsible to the electorate. The legislature may formulate the standards for admission to the Bar, but the Bar fixes its own standards of professional conduct. Discretion necessarily plays so large a part in judicial administration, and personal capacity and skill are such determining factors in the complex problems of professional work of all kinds, that the legislature can do scarcely more than prescribe formal rules for the guidance of litigation. It can do little to control the manner of their use. But while the profession feels its independence, cherishes its ideals, honors its traditions, and pursues its way in comparative freedom from the fussy regulation of the legislature, it is subject to a power far more potent. The inexorable laws of supply and demand, of competition and the survival of the fittest, guide the destiny of the lawyer as well as the wage earner or the business man. These are laws of nature which nothing can withstand.
Lawyers are quasi-public servants. They are licensed and employed to accomplish certain purposes. They exist for the benefit of the public. Those who offer what the public will not have, must change their ways or go unemployed. The public has be
come convinced that there is gross inefficiency in the administration of the law. It has weighed current procedure in the balance and found it wanting. There is too much delay, expense and uncertainty about it. It does not produce results commensurate with the effort employed.
Many causes contribute to this. One is that there is too little regard paid to the finer ethical standards in the employment of the processes of the law. Technical rules are capable of a beneficent and a malignant use. The lawyer is much less likely to forget his duty to his client than to the court and the public. In the stress and strain of litigation he is too ready to resort to technicalities for the purpose of confusing the evidence, diverting the issues and laying a foundation for a vexatious appeal, when success upon the merits seems out of reach. It is the "nuisance value " of the rules of procedure which then appeals to him, and it is their "nuisance value " that has discouraged and disgusted the public. No legislation can reach this problem. It is essentially ethical and the solution lies with the Bench and Bar.
But concurrent with this perverted view of the function of procedure is an apparently inconsistent condition, namely, widespread lack of precision and effectiveness in the use of procedure. We lose our respect for what we habitually misuse. Its logic is lost in the maze of its petty rules; its true purpose is forgotten in the stress of the case in hand.
But procedure, when rightly considered is the very life of the law. It is that which renders litigation possible. Procedure is merely the means of coordinating effort, of harmonizing differences, of offering everyone equality of opportunity in offense and defense before the law. Without it there would be confusion, favoritism and injustice. If the subject were viewed in this fundamental way, and were studied conscientiously as an incident and aid to the development and determination of the merits of controversies, the criticisms now so fiercely directed against it would largely disappear. In its use it is indispensable, in its abuse only does it cause trouble. A professional conscience to curb that abuse and professional learning and skill to direct its proper use, are the two needs of the time.
Perhaps the law schools have a part to play in the attainment of both these ends. For law and ethics are twin sisters. But the primary problem of the schools is to develop true and comprehensive intellectual conceptions. So far as procedure is concerned, it seems clear that they have failed to appreciate the magnitude of the task and have done little to correct the deficiencies which the public is so insistently pointing out.
Procedure has always been a difficult and technical part of the law. In its primitive condition, law was not much more than a system of procedural forms. Gradually the law of rights obtained the ascendency over the law of remedies, and procedure lost its claim to an independent valuation and became a means to the investigation and determination of litigated controversies.
Viewing procedure in this modern way, two aspects at once present themselves for consideration. It may be looked at as both a mechanism and a mode of operation. And this distinction is important. Let there be devised ever so good a system, yet its value may be destroyed by clumsy methods of use. On the other hand, with a crude and cumbersome system excellent results may be reached by operative skill. The system itself is a matter over which the legislature has assumed direct jurisdiction, while the mode and manner of its application has necessarily been left largely to the Bench and Bar.
Such a division of responsibility is unfortunate, for there is so close an inter-relation between the machinery and its operation that a constant and free co-adjustment should be at all times possible. The excellence of a procedural system is to be tested by the ease with which it lends itself to practical use. As practice discloses weaknesses in its fabric, the practitioners themselves should be free to devise amendments and changes calculated to remedy such defects. The users should be also the designers and adjusters. Such is the case in England, where the judges enact and amend the rules which they themselves administer.
But the legal profession in the United States, though it may not have direct authority and control over the rules of procedure, is, nevertheless, charged with the duty of doing the best it can with the means at its command. If those means are thought to be not
of the best, so much the more skill is called for on the part of the profession. Lawyers may not be immediately responsible for fancied imperfections in the system, but they are certainly chargeable with inefficiency in the use of it.
It must also be remembered that procedure is the one branch over which the legal profession is vested with a peculiar and exclusive jurisdiction. While the trained lawyer must understand legal relations in all their phases if he is to be a proper adviser for his clients, his professional characteristic is his authority, and presumably his ability, to use the procedural machinery of the law. Many lawyers never go into court, and confine themselves to a consultation practice. But their advice is predicated upon an understanding of what they might be permitted or required to do if they were to resort to the courts, and though they do not themselves employ procedural processes, the value of their suggestions depends upon the accuracy with which they gauge the procedural possibilities in the case before them.
The legal profession in the United States has never taken procedure as seriously as has the profession in England, and it would hardly be amiss to ascribe our much-criticised inefficiency quite largely to this cause. The English professional system, with its division of functions between barristers and solicitors, is based upon the broad doctrine that procedure is of first importance. The barrister is the trial lawyer. He is also a consultation lawyer. A consultation practice is thus combined with the most technically exacting work of trial practice. Instead of freedom from court work being conducive to the development of ability as a giver of legal advice, just the reverse seems to be true. The barristers as a class are a most learned body of lawyers. From their ranks the English judges are drawn. To them is due the credit for English legal efficiency, because they are experts in procedure. Trials conducted by such men, gifted by native ability and rich in a long and varied experience in the conduct of litigation, could not fail to be models of rapid and accurate work. To them the court room is the shrine of the law. Instead of belittling procedure they exalt it as the method by which alone rights can be safely, quickly and accurately determined.
I take it to be clear, therefore, that the professional equipment of the lawyer ought to include a reasonable familiarity with the fundamental rules under which remedies are obtained in the courts. And it follows that the law schools, which are established to prepare lawyers for professional work, ought to do what is reasonably possible to give them the necessary training in the principles of procedure.
There is, as I look at it, a striking and far-reaching difference in the functions of the colleges of liberal arts and the professional schools. Both are established in the public interest. But while the aim of the former is to develop individual character and mental strength, the latter are expected to produce efficient practitioners. It is of little concern to the college educator whether his students study mathematics, or Greek or history, for he knows that all roads lead to Rome. He wants to develop the mental powers of his students and to bring them into contact with the best thought of the world's great minds. If he does this he does his duty, for he turns out men with the furnishings and training requisite to broad citizenship. Not so with the professional school. Its task is to train men to do well the technical work expected from their profession. It looks to skillful performance in certain lines of activity. The test of its success is the efficiency of its output. The gradually increasing entrance requirements among the better professional schools mean nothing else than a recognition of the truth that such schools are not a part of the general educational system, but are institutions into which the already educated man comes for special training to fit him for a special service. The law school does not justify its existence by contending that a legally trained mind makes a good citizen, though that may be entirely true. It justifies itself by asserting that the country needs well-trained lawyers and by showing that it can produce them. Accordingly, the law schools, in order to fully fill the place for which they have been created and maintained, should give their students a complete preparation for all that the practice of the profession will afterwards demand of them.
But the truth is that the schools have never taken hold of procedure in a thorough-going and comprehensive way. They have