The ethical test of a judge is not whether his judgments run parallel to the judgments of a moralist, but whether the judge administers his office true to its traditional limitations as well as to its aspirations. From the day he takes his seat he is aware that while he has more personal discretion than the books reveal, he is hemmed in by impersonal usages, canons, and legitimate expectations. While he has choice, he cannot exercise it even to his own satisfaction unless it is disciplined according to standards. The minima are supplied by reversals administered by appellate courts. Those, however, are necessarily negative in nature. What counts more is the establishment of affirmative norms of judicial behavior. One man knows the practices of his own and perhaps a few other courts; so, to evolve standards, he must become critical of his own shortcomings, attentive to the reactions of the bar, informed of the unrecorded practices of his colleagues, and, above all, reflective about subtle differences in the tasks assigned to him.
The trial judge's first problem is his relationship to the jury. Much of the debate about the jury system rests on political premises as old as the eighteenth century. Montesquieu, Blackstone, and their followers contended that lay tribunals with a plurality of members were the safeguard of liberty. Bentham and more modern reformers replied that when the rule of law itself is sound, its integrity requires that its application be entrusted to magistrates acting alone. In their view, responsibility is the secret of integrity, and a reasoned choice is the secret of responsibility.
Experience will not give a sovereign answer to these warring contentions. Yet the disagreement can be narrowed if the question of the jury's utility is subdivided with specific emphasis on separate types of suits.
The importance of this subdivision is concealed by Chief Justice Hughes's striking phrase that a federal judge is the "governor of the trial." Some regard this as an implied acceptant of the practice of English courts. They construe it as a broad invitation to exercise in all types of cases a right to comment upon the evidence, provided of course that the judge reminds the jury in his charge that they are not bound to follow the court's view of the facts or the credibility of the witnesses.
Such boldness is not the surest way to end disputes in defamation cases. In 1944 a discharged OPA official brought a libel suit against the radio commentator, Fulton Lewis, Jr. At one stage in the examination I suggested that Mr. Lewis's counsel was throwing pepper in the eyes of the jury; and at the final summation I indicated plainly that, although the jury was free to reject my opinion, I thought Mr. Lewis had been reckless in his calumnious charges against the ex-OPA official. It makes no difference whether what I said was true; I should not have said it, as the reaction of the bar and public reminded me. A political libel suit is the modern equivalent of ordeal by battle. It is the means which society has chosen to induce bitter partisans to wager money instead of exchanging bloody noses. And in such a contest the prudent and the second-thinking judge will stand severely aside, and will act merely as a referee applying the Marquis of Queensberry rules.
Later a libel suit was brought by James Michael Curley against the publisher of the Saturday Evening Post for having said that Mr. Curley was a Catholic of whom His Eminence Cardinal O'Connell would have no part. Who knew better than the Cardinal whether that charge was true ? Mr. Curley, the plaintiff, did not call the Cardinal to the stand. The defendant's distinguished counsel did not desire to find out what would be the effect upon a Greater Boston jury if a Protestant lawyer should call a Catholic prelate to the witness stand. Should the court have intervened and summoned the Cardinal on its own initiative? The Fulton Lewis case gave the answer. In a political libel suit the judge is not the commander but merely the umpire.
Those cases which involve sordid family disputes also are better left to the jury without too explicit instructions. Plato implied and Holmes explicitly stated that judges are apt to be naive men. If judges seem to comment on the morality of conduct or the extent of damages, they may discover that the jurors regard their own knowledge as superior to the judges'. At any rate when brother sues brother or when spouse sues paramour, the very anonymity of the jury's judgment often does more than the most clearly reasoned opinion or charge of an identified judge could have done to still the controversy.
What of the trial judge's role in accident cases? How far should he go in requiring available evidence to be produced, in commenting on the testimony, and in using special verdicts and like devices to seek to keep the jury within the precise bounds laid down by the appellate courts?
There are some who say that the trial judge has not fulfilled his moral obligation if he merely states clearly the law regarding negligence, causation, contributory fault, and types of recoverable damage. In their opinion it is his duty to analyze the evidence and demonstrate where the evidence seems strong or thin and where it appears reliable or untrustworthy.
Most federal judges do not make such analyses. They are not deterred through laziness, a sentimental regard for the afflatus of the Seventh Amendment, or even a fear of reversal. They are mindful that the community no longer accepts as completely valid legal principles basing liability upon fault. They perceive a general recognition of the inevitability of numerous accidents in modern life, which has made insurance widely available and widely used. Workmen's compensation acts and other social and economic legislation have revealed a trend that did not exist when the common-law doctrines of tort were formulated. And the judges sense a new climate of public opinion which rates security as one of the chief goals of men.
Trial judges cannot, without violating their oaths, bow directly to this altered policy. In instructions of law they must repeat the doctrines which judges of superior courts formulated and which only they or the legislatures can change. But trial judges are not giving "rein to the passional element of our nature" or forswearing themselves by following Lord Coke's maxim that "the jurors are chancellors." Traditionally juries are the device by which the rigor of the law is modified pending the enactment of new statutes.
Some will say that this abdication is not merely cowardly but ignores the "French saying about small reforms being the worst enemies of great reforms." To them the proper course would be to apply the ancient rules with full rigidity. They anticipate that adverse reactions would then lead to a complete resurvey of accident law; to a scrutiny of the costs, delays, and burdens of present litigation; to a comparative study of what injured persons actually get in cash as a result of lawsuits, settlements out of court, administrative compensation proceedings, and other types of insurance plans; and ultimately to a new codification. To this, one answer is that in Anglo-American legal history reform has rarely come as a result of prompt, comprehensive investigation and legislation. The usual course has been by resort to fictions, to compromises with logic, to juries. Only at the last stages are outright changes in the formal rules announced by the legislators or the appellate judges. This is consistent with Burke's principle that "reform is impracticable in the sense of an abrupt reconstruction of society, and can only be understood as the gradual modification of a complex structure."
I am not at all certain that it would be a desirable reform in those personal injury controversies, known as tort cases, to substitute trial by judges for trial by juries. Just such a substitution has been made in the Federal Tort Claims Act. And experience under that statute does not prove that in this type of case a single professional is so satisfactory a tribunal as a group of laymen of mixed backgrounds. In estimating how a reasonable and prudent man would act, judges' court experience counts for no more than juries' out-of-court experience. In determining the credibility of the type of witness that appears in accident cases an expert tribunal is somewhat too ready to see a familiar pattern. Shrewdness founded on skepticism and sophistication has its place in scrutinizing the stories of witnesses. But there is a danger that the professional trier of fact will expect people of varied callings and cultures to reach levels of observation and narration which would not be expected by men of the witness's own background. Moreover, when it comes to a calculation of damages under the flexible rules of tort law the estimate of what loss the plaintiff suffered can best be made by men who know different standards of working and living in our society. Indeed, I have heard federal judges confess that in a Federal Tort Claims case they try to make their judgments correspond with what they believe a jury would do in a private case. And many judges would prefer to have such cases tried by juries.
In commercial eases and those arising under regulatory statutes there is reason to hold a jury by a much tighter rein than in tort cases. This is not because the rules of law are more consonant with prevailing notions of justice. In these controversies judges have a specialized knowledge. Parties have usually acted with specific reference to their legal rights. Departures from the declared standard would undermine the legislative declaration and would be less likely to produce reform than confusion and further litigation.
An extreme example will serve as an illustration. In a tax case tried before a jury at the suit of one holder of International Match Company preference stock, the issue was whether for tax purposes those certificates had become worthless in the year 1936. In another taxpayer's case the Second Circuit Court of Appeals had Affirmed a ruling of the Board of Tax Appeals that similar stock had become valueless in the year 1932. Technically this adjudication did not bind the jury, though the evidence before it was substantially the same as that in the earlier case. To preserve uniformity on a factual tax problem of general application I had no hesitation in strongly intimating to the jury that they should reach the same result as the Second Circuit.
In sales cases something close to a scientific appraisal of the facts is possible; there are strong mercantile interests favoring certainty; and future litigation can be reduced by strict adherence to carefully prescribed statutory standards. These considerations sometimes warrant giving juries written instructions or summaries and often justify the use of special verdicts. Either method makes jurors focus precisely on the formalities of the contract, the warranties claimed to have been broken, the types of damage alleged to have been sustained, and the allowable formulae for calculating those damages.
Indeed, except for tort cases, I find myself in agreement with Judge Frank that the trial judge ought to use special verdicts to a much larger extent, though it is more difficult than may at first be realized to frame questions to the satisfaction of counsel and to the comprehension of juries. Once when I used what I thought simple questions, a fellow judge, half in jest, accused me of trying to promote a disagreement of the jury and thus to force a settlement.