The arguments supporting special verdicts in commercial or statutory cases also support a trial judge in giving in such cases a more detailed charge and more specific guidance in estimating the testimony. In complicated cases or those in fields where the experience of the average juror is much less than that of the average judge, there is a substantial risk of a miscarriage of justice unless the judge points rather plainly to the "knots" in the evidence and suggests how they can be unraveled. The only time I have ever entered judgment notwithstanding a verdict was in a private antitrust suit. The jury had awarded damages of over one million dollars as a result, I believe, of the generality of my instructions.
So far I have said nothing of federal criminal cases. About 90 per cent of all defendants in the federal court plead guilty. In those federal cases which come to trial the crime charged frequently concerns economic facts; and generally, though not invariably, the preliminary investigation by the FBI and other agencies of detection has reduced to a small compass the area of doubt. Often the only remaining substantive issue of significance is whether the defendant acted "knowingly." Indeed the usual federal criminal trial is as apt to turn on whether the prosecution has procured its evidence in accordance with law and is presenting it fairly, as on whether the defendant is guilty as charged. All these factors combine to concentrate the judge's attention upon the avoidance of prejudicial inquiries, confusion of proof, and inflammatory arguments. Counsel can aid the judge to maintain the proper atmosphere by stipulation, by refraining from putting doubtful questions until the judge has ruled at the bench, and by other cooperative efforts. But if cooperation is not forthcoming the judge should hesitate to fill the gap by becoming himself a participant in the interrogation and should not indicate his view of the evidence. For the criminal trial is as much a ceremony as an investigation. Dignity and forbearance are almost the chief desiderata.
I turn now to the freedom of the trial judge when he sits without a jury. In nonjury as in jury cases, a substantial part of the bar prefers to have the judge sit patiently while the evidence comes in and then at the end of the trial summarize the testimony. This seems the sounder practice in the great bulk of trials. But in cases of public significance, Edmund Burke admonished us: "It is the duty of the Judge to receive every offer of evidence, apparently material, suggested to him, though the parties themselves through negligence, ignorance, or corrupt collusion, should not bring it forward. A Judge is not placed in that high situation merely as a passive instrument of parties. He has a duty of his own, independent of them, and that duty is to investigate the truth...." Let me give some examples of when I believe the judge has a duty to elicit facts in addition to those that are offered by the parties. The plaintiff, an owner of a multiple dwelling, brought suit for a declaratory judgment seeking to have the premises declared a "hotel" and thus exempt from the rent regulations of the OPA. Only one of the numerous tenants was named as defendant. In the trial the plaintiff offered evidence that showed the building was a hotel and not an apartment. Because of lack of funds or of forensic skill, the tenant's counsel failed to shake the stories of the plaintiff's witnesses or to offer adequate testimony to the contrary. Yet if the trial judge had called specialists and others familiar with the community and the property, the evidence would have demonstrated that in truth the building was a mere apartment house. I took no step myself to call witnesses or to interrogate those who did testify but, relying exclusively on what the parties offered, entered a judgment declaring the premises a "hotel" and thus exempt. Since this declaration of status became in effect a general rule binding on scores of persons not represented in the proceedings, would it not have been sounder if the court had taken a larger initiative in seeing that the record corresponded with reality?
A later controversy of even greater public importance posed a similar problem. In a case still undecided, the United States sued the United Shoe Machinery Corporation for violation of the antitrust laws. Among the issues that were presented was the effect of the corporation's acts upon its customers and its competitors. The Government in its case relied exclusively on the corporation's documents and officers. The corporation planned to call some customers, though the method by which they were drawn was not disclosed to the court. This seemed an inadequate survey. So the court asked the parties to take depositions from forty-five customers, selected from a standard directory by taking the first fifteen names under the first, eleventh, and twenty-first letters of the alphabet; and the court itself called to the stand the officers of the principal competitor. In the summons the court listed topics appropriate for questioning the officers. The actual examination was conducted in turn by the competitor's counsel, the Government's counsel, and the defendant's counsel. Both these types of testimony give a much clearer understanding of the total picture of the industries that will be affected by any decision.
Another problem in the United Shoe case has been to determine what have been the usual methods followed by the defendant in setting prices, in supplying services, and in suing competitors. An adequately grounded conclusion can hardly be based entirely on the plaintiff's selection of a few dramatic incidents and on the defendant's testimony of the general attitude of its officers. The critical point in determining liability and the form of relief may turn on what has been the typical pattern of the defendant's conduct and the typical effect of that conduct on outsiders. Here the judge can perform a useful function if he, through pre-trial conferences or at a later stage of the litigation when he is more aware of its dimensions, provides for appropriate samplings of the conduct and the effects. If the judge is fortunate, the parties may agree on the sampling. But where they do not, it seems to me to be the judge's responsibility first to elicit from witnesses on the stand the criteria necessary to determine what are fair samples and then to direct the parties to prepare such samples for examination and cross-examination. Sampling will make the record not merely more informative but shorter.
The question as to what has been the custom of the market and what would be the consequence of a judicial decree altering those practices arises not only in antitrust cases but also when the judge is faced with the problem of determining either the appropriate standard of fair competition in trademarks or the appropriate standard for fiduciaries. Usually, to be sure, diligent counsel offer in evidence enough relevant material. But where this has not been done, there have been times when a judge has tended to reach his result partly on the basis of general information and partly on the basis of his studies in a library.
This tendency of a court to inform itself has increased in recent years following the lead of the Supreme Court of the United States. Not merely in constitutional controversies and in statutory interpretation but also in formulation of judge-made rules of law, the justices have resorted, in footnotes and elsewhere, to references drawn from legislative hearings, studies by executive departments, and scholarly monographs. Such resort is sometimes defended as an extension of Mr. Brandeis's technique in Muller v. Oregon. In Muller's case, however, Mr. Brandeis's object was to demonstrate that there was a body of informed public opinion which supported the reasonableness of the legislative rule of law. But in the cases of which I am speaking these extra judicial studies are drawn upon to determine what would be a reasonable judicial rule of law. Thus the focus of the inquiry becomes not what judgment is permissible, but what judgment is sound. And here it seems to me that the judge, before deriving conclusions from any such extrajudicial document or information should lay it before the parties for their criticism.
How this criticism should be offered is itself a problem not free from difficulty. In some situations the better course may be to submit the material for examination, cross-examination, and rebuttal evidence. In others, where expert criticism has primarily an argumentative character, it can be received better from the counsel table and from briefs than from the witness box. The important point is that, before a judge acts upon a consideration of any kind, he ought to give the parties a chance to meet it. This opportunity is owed as a matter of fairness and also to prevent egregious error. As Professor Lon Fuller observed, the "moral force of a judgment is at maximum if a judge decides solely on the basis of arguments presented to him. Because if he goes beyond these he will lack guidance and may not understand interests that are affected by a decision outside the frame work."
The duty of the judge to act only on the basis of material debated in pubic in no sense implies that the judge's findings should be in the precise terms offered by counsel. Nor does Rule 52(a) of the Federal Rules of Civil Procedure require the judge always to recite all relevant evidence and to rely for persuasive effect exclusively upon mass and orderly arrangement. Yet in corporate cases or other litigation where the issues turn on documentary analysis and precise analysis of business details, and where appeal is almost certain to be taken, the trial judge may perform the greatest service by acting almost as a master summarizing evidence for a higher tribunal.