Theory against the

jury; practice for it.

The many

processes involved in a lawsuit.

that protection, when individual liberty needs that protection; and I will never consent, if I vote alone, against overwhelming majorities, to take away one jot or tittle of the strength, stability, and the perpetuity of that safeguard. (Applause.)

Mr. President, I have said all that I have to say, with one exception: We have had read to us to-night a number of expressions of opinion from text-writers, from jurists, from learned judges, in England, in Illinois, in Michigan, in Iowa, and in New York; but in England, in Illinois, in Michigan, in Iowa, in New York, there still remains the system of trial by jury, with its essential characteristic of a unanimous verdict. Theory is against it, Mr. President, but the plain practical common-sense of the AngloSaxon race has wrought out and holds to, and I believe means to hold to this, their peculiar method of conciliating disputes and of ending litigation. The plain sense of the people, through hundreds of years in practical experiment, sets itself still against the theories of jurists. The plain sense of the people will have to pass upon this revised and amended Constitution. Not theorists, not jurists, not text-writers. To them we must appeal, and let us apply their good common sense to the work which we do. I hope, Mr. President, that this Convention will not attack the system of trial by jury.

196. The Law's Delays

In 1884 the American Bar Association appointed a special committee to inquire into the possibility of reducing the number of delays which occurred in judicial processes, and this committee made a long and interesting report from which only a few extracts can be given here:

The theory of a lawsuit is, to hear what the parties have to say, and to decide between them. In doing this, the simplest and most direct method is the best. The plaintiff must make his statement; that is the first step; the defendant must make his answer or be held to admit the truth of the complaint; that is the second; if they differ, the truth of the fact must be ascertained;

that is the third; and then the law must be applied, which is the fourth step and the last if there be no appeal. These several steps may be shorter or longer. A short one is the best if it be a sure one. Some side steps may have to be taken, according to the circumstances of particular cases. But in all, not a single unnecessary step should be required or allowed. In other words, no form or proceeding should be permitted which is, not necessary to ascertain or preserve the rights of the parties, no form or proceeding that cannot be understood by either party, none that causes needless delay or needless expense. There must, however, be a complaint, and if there be an answer there must be a trial of the fact, a judgment of the law, and an execution of the judgment, with occasional incidental proceedings, such as orders made in the progress of the cause to insure the efficiency of the judgment. In other words, there may be in civil actions these several processes - the complaint, the answer, possibly a reply, the provisional remedies of arrest, replevin, injunction, attachment, receiver or deposit, a trial of the facts in issue, the judgment of the law, the execution of the judgment and one or more appeals, twelve or fourteen distinct processes, most of which are or may become necessary in a severely contested law-suit. The problem is how to expedite them all, preserving at the same time every right of the parties, and to cut off, with an unsparing hand, whatever is not necessary to this design. . . .

...

getting

Let us take our seats as spectators of a severely contested jury Delay in trial in a court of general jurisdiction of one of our cities, say in started. the City of New York, and see how one of them at least is conducted. The hour of the sitting is fixed for eleven o'clock. At that hour a crowd of lawyers, suitors, witnesses, and spectators is in attendance ready for the judge. He comes, perhaps punctually, and perhaps not punctually, but after a few minutes, or a quarter of an hour, or half an hour, nobody can foretell which. At last he appears, and begins by asking what suits are ready, or rather by calling over the calendar, an unintended but real invitation to the parties, one or both of them, not to be ready. This

The trial.

The appeal.

call, and the little debates which follow, take perhaps another half hour; so that the spectators may think themselves fortunate if they see a suit begun as early as twelve o'clock. It is then brought on and the names of the attending jurymen are called as they are drawn one by one from the wheel. Some questioning generally follows: now and then a contest and a side trial over one or more of the names drawn; but at last a jury is completed. Then the case is opened by the plaintiff, and the examination of witnesses begins. When three or four questions have been put and answered, some objection is made; it is duly debated for a few minutes, or it may be for an hour, or even for hours; the judge decides the question be allowed or disallowed; an exception is noted, and the questioning starts again. In a short time, however, comes another objection, when the process of debate, decision and exception is repeated, and so on until, perhaps, the day is spent before the first witness is dismissed, and an adjournment to the next day is taken. The next day comes and goes, with the like experience, and so another, and yet another, until at last, the testimony being finished, a discussion is opened upon one or more requests to the judge for his charge to the jury; then follows the charge, the exceptions to the charge come after, and finally the verdict, with perhaps fifty or an hundred exceptions on the record.

The trial being ended, a re-examination of all the legal questions that arose can generally be had if either party desires it, and one or the other will desire it, if he thinks he can derive advantage from it. The method of re-examination differs in different states; in some the questions are carried directly to another court; in other states they are re-examined in the same court by other judges or possibly by the same judge. The success of whatever method depends upon the ability of the judges; of the trial judge in the first place, and of the re-examining judges in the second. An incompetent judge is an expensive officer. It were better for the state if all the incompetent aspirants for judgeships who beset nominating conventions or executive cham

bers, were provided for at the public expense in some other way, than that they should be seated upon the bench to harass and bewilder suffering counsel and more suffering suitors.

a cause of delay.

Whatever may be said in other respects of the institution of The jury the jury for civil cases, it cannot be denied that it is the cause of great delays. This is the effect principally of two causes, one of which is the requirement of unanimity. When the jury is discharged, by reason of disagreement, the case has to be retried. Another and much more considerable cause of delay in the final result, is the ordering of a new trial for misdirection of the court or an erroneous admission or rejection of evidence. This may be obviated to a great extent by requiring the verdict to be special, upon questions submitted by the judge. The result would be that an error of the judge upon the trial would not require a new trial, unless the error related to a finding essential to the judgment; that is, one without which the judgment could not have been rendered.

delays.

Costs, too, have something to do with the delays. Two theories Costs and are propounded respecting them; one that they should be made sufficient to cover all the expenses of the successful litigant; the other that they should cover only the fees of the court officers, such as clerks and sheriffs. On one side it is argued that a party who has put his adversary to needless expense and suffered defeat in the suit, ought justly to indemnify this adversary; on the other side it is argued that no system of costs will prevent an unjust claim or an unjust defense, and that in most instances they are instruments of oppression, rather than of justice, and if they are made to depend at all upon the discretion of the judge the discretion is dangerous. The choice between the two depends more upon experience than on theory. And we think experience has shown that to allow no costs, except the fees of the officers, is better than to attempt an indemnification for expenses of the prevailing party.

It appears to us that a great deal of time is wasted and no little uncertainty introduced into the law by the habit of delivering long

Preference to certain

cases.

The

question of appeals.

opinions at the time of pronouncing judgment. Anyone who will look into the decisions of Lord Mansfield will perceive the difference between the old habit and the new, much to the disparagement of the latter. Our volumes of reports have too many dissertations in the shape of opinions. The inconvenience thence arising is manifold; the time of the judges is wasted; the reports and the cost of the reports are grievously swollen, and worst of all there is the chance, with reverence be it spoken, that some of the dissertations, if their expansion goes on, may be delivered in clouds of verbosity, covering as with a fog the points to sight and steer by.

We think, moreover, that giving by statute a preference to certain cases on the calendar is a mistake. The courts may well be trusted for the regulation of their own calendars; when they find a case to be of such public importance as to require a hearing before all others they will be quite sure to hear it. Whenever the state enacts that one case shall be heard before another, which stands ahead of it in order, it confesses its own negligence or inability to provide a prompt hearing for all. . . .

The question of appeal is always a serious one. How many successive appeals should be allowed, and within what time should they be taken? The answer to the first depends upon the organization of the courts. In the State of New York, for instance, where there are upwards of seventy co-ordinate trial courts of the highest original jurisdiction, it would be out of the question to give an appeal from each of them to the Court of Appeals; there must, of necessity, be a previous sifting of the case by a proceeding in the nature of an appeal in the original court itself; that is, an appeal from one judge to two or three co-ordinate judges. In other states the same reasoning may not apply, and one appeal may suffice. The time allowed for an appeal should be short. It is now in many instances long, grievously long indeed; a year, two years, sometimes six or seven.