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followed the beaten path and nothing more. The great foundation subjects of contracts, torts, and property have been developed with consummate skill, and are presented in the better schools with a breadth of philosophical insight which leaves little to be desired. Instead of being taught in isolated, fragmentary bits, the whole subject in its logical completeness is unfolded before the student, so that he feels and understands its principles, its boundaries, its purposes and its relations. Such a method of study develops a feeling or attitude toward a subject which becomes a sort of intuitive guide in the solution of its problems. Such a method produces results which time cannot destroy, and the student's knowledge does not melt away with the first lapse of memory.
Why is not procedure taken up in the same far-sighted way? It is not because of any want of importance, as has already been shown. Apparently the schools have not progressed far enough yet.
No school teaches procedure under that name. Few teach it at all. Most schools teach pleading and evidence, with a course on equity practice and another on criminal procedure. Such a division of subjects is like separate courses on consideration and promises instead of a course on contracts, in which the main thing would be left out, namely, the co-relation of the parts which is the real significance of each. But the case of procedure is worse. For if all the parts of a subject are taught even in fragments, there is at least no positive gap left unfilled. But the procedure subjects taught in most law schools do not cover procedure. Not only is the coordination of parts missing, but one of the chief parts is itself a fugitive and an outcast.
If procedure is looked at in a broad way it is a single subject. Its aim, as already pointed out, is to supply a mechanism for litigation. One purpose runs through it all, and all its parts fit together like cogs in a gear. Pleadings are drawn to present issues for trial; trials are had to determine issues raised by the pleadings. Rules of evidence determine admissibility, but the foundation of the proof is the pleadings. The jury must base its verdict and the court its decision upon what the pleadings allege and the evidence tends to prove, and instructions are to be drawn within the
scope of both. The same principles which limit evidence place restrictions upon the conduct and argument of counsel. Upon the relation between the pleadings and the evidence depends the right to take the case from the jury. Appeals and writs of error call in question principles of pleading, of evidence and of trial practice. In truth, the writ, the pleadings, the trial, the verdict, the judgment, and the appeal are a connected series of elements each one depending upon the other, each comprehensible only through the others, each supplementary to the rest. To isolate pleading and evidence, take them out of their setting, treat them as absolute instead of relative and ignore the rest of the subject, is misleading. Only when one understands the problems, the purpose, and the logic of procedure as a whole can he understand the real significance of the rules relating to its separate branches.
The truth probably is that the most important, as well as the most illuminating, portion of procedure is trial practice, which the law schools largely ignore. The trial is the end and essence of procedure. It is the center about which all other procedure subjects revolve. To really understand the trial is to understand procedure. The pleadings lead up to it, the evidence is part and parcel of it, the appeal grows out of it. The trial is the heart of procedure.
A glance at the function of the jury in the modern trial at law will make the point clear. It is the jury which is the characteristic feature of the trial, coloring all its phases and determining most of its rules. This is the institution which has made common law procedure what it is. There is scarcely anything about the trial, from the pleadings to the writ of error, which does not reflect the influence of this unique feature of English and American legal development. The pleadings are drawn to produce issues triable to a jury; the trial opens with the selection of the jury; the conduct of counsel, from opening statement to final argument, is hedged about with restrictions due to the presence of the jury; the rules of evidence are all devised to meet the peculiar requirements of the jury; the whole theory of non-suits and directed. verdicts arises out of the division of functions between court and jury; the difficult and important subject of instructions to the
jury obviously rests upon the same conception; special interrogatories and special verdicts are merely devices for penetrating into the conscience of the jury; new trials, with their vastly complicated rules, were devised and are granted as a safeguard against perverse verdicts of juries; the verdict is the final decision of the jury and it fixes the character of the judgment; and the writ of error is sued out or the appeal is taken in most cases because the appellant believes he can convince the court that some error was committed in the presence of the jury which prejudicially influenced its verdict, and he prays for a reversal and another trial before another jury.
Equity procedure is much simpler. But with it I am not now concerned. It is usually taught in connection with equity pleading and gives little trouble.
Now, if the whole doctrine of civil procedure at law has been developed and is administered with a view to preserving the division of functions between the court and jury, segregating issues and questions of fact from issues and questions of law, that conception would appear to offer a logical center about which to group the various special subjects embraced within the general field. And that means that trial practice, which concerns itself with the rules relating to the conduct of the trial itself, is the essential and significant title in procedure.
A well-balanced system of instruction in procedure ought, therefore, to group all procedure branches about the trial as the procedural center. They should be coordinated with a view to their purpose as ancillary and incidental to the trial, for their meaning, scope and importance are strictly dependent thereon.
The teaching of trial practice has scarcely been attempted in most of the law schools of this country. And the reason probably lies in the failure to clearly distinguish between trial practice as a body of well-defined and accurately developed principles of procedure and trial practice as a vague and shadowy discourse on success in advocacy. The law schools cannot undertake to teach men how to read character; how to cultivate an impressive manner; how to skillfully interrogate a witness; how and when to appeal to the emotions of the jury; how to delicately flatter or se
verely arraign. They cannot teach resourcefulness and tact. The art of expression and the skill of strategy are outside the proper scope of the schools of law. All of these things are as necessary in selling goods or teaching school as in practicing law. The art of advocacy is the art of life, and only life can teach what life is.
But if trial practice is viewed as the keystone of a systematic scheme of procedure, concerning itself with the principles by which the problems pertaining to the conduct of the trial are analysed and solved, it becomes a very different thing. Such a subject is accurate, logical, and professionally technical. It concerns the very essence of procedure, and it is as solidly intellectual as any other branch of the law.
A glance at the subject-matter embraced by the notion of the trial will at once disclose its adaptability to law school instruction. It includes the scope, plan and purpose of the statutory systems for obtaining venires, and the theory of their interpretation; the doctrines relative to the examination of jurors on their voir dire, and bias and challenges; the functions of the opening statement and the right to open and close; the principles underlying the different methods of withdrawing the case from the jury, such as non-suit, directed verdict and demurrer to the evidence; the theory and practise of preparing instructions for the jury; the purpose and propriety of special interrogatories and special verdicts; the doctrine of new trials and the conditions and limitations under which they may be granted; the rules regulating the conduct of counsel while in the presence of the jury.
All these subjects, with perhaps two or three others, are of primary importance to the lawyer who appears in court. They have been worked out accurately and comprehensively by the courts in a vast array of decisions. They are based on the closest logic, and the broadest policy. They have called forth the best thought of able judges. They lie at the very heart of our judicial system, for of what value are rights if remedies fail?
The trial serves a single and perfectly definite purpose. Trial practice, which concerns its conduct, is not a mere collection of unrelated rules, but a closely articulated subject in which every part bears a demonstrable relation to every other and to the whole.
A study of it gives unity to procedure, and puts vitality into many a dry rule. Pleading and evidence can never stand forth in their true significance until they have been given their proper place as incidents of the trial.
Now, so far as concerns the question, how to teach practice, it is quite obvious that the principles of the subject can be taught in exactly the same way as any other branch of the law, except that I believe the case system is more imperatively necessary than elsewhere. In all procedure subjects the principles depend so intimately in the facts of the cases in hand that they mean little when divorced from the facts. And this is especially true of trial prac
One common fallacy has perhaps done much to deter the schools from seriously taking up the subject, and that is the prevalent idea that trial practice is essentially local in its close dependence on statutes and court rules. But the reverse is more nearly the truth. The basic principles underlying the subject are absolutely general in their scope and application. Variations occur in minor points but I believe there is no subject of the law, either in procedure or the substantive branches, where there is less diversity in fundamentals and in the principles of interpretation than in trial practice.
If it be conceded that trial practice should be taught, another step logically suggests itself. The student of chemistry is taught the principles of qualitative analysis, but he is also taught how to put those principles to use in analysing unknown combinations of chemical substances. The engineering student is taught in shop courses how to apply the principles learned in the books. Medical and dental students have clinical cases to work upon. Why should not the law student have cases in procedure? The practice court constitutes the affirmative answer of many law schools to this question. But I am inclined to think that the development of practice courts has been hampered by an incorrect conception of their true function.
A practice court is certainly not a mere imitation of a real court. It cannot survive amid the press of work in the brief period allowed for modern legal education unless it does some