IN a memorable summary of the progress in the administration of justice during the Victorian period, one of the most scholarly and learned of modern English judges, the late Lord Justice Bowen, speaking of the reforms effected in judicial procedure in England, and their result, said,—
“In every case, whatever its character, every possible relief can be given with or without pleadings, with or without a formal trial, with or without discovery of documents or interrogatories, as the nature of the case prescribes — upon oral evidence or upon affidavits, as is most convenient. Every amendment can be made at all times and all stages, in any record, pleading, or proceeding, that is requisite for the purpose of deciding the real matter in controversy. It may be asserted without fear of contradiction that it is not possible in the year 1887 for an honest litigant in Her Majesty’s Supreme Court to be defeated by any mere technicality, any slip, any mistaken step, in his litigation. . . . Law has ceased to be a scientific game that may be won or lost by playing some particular move.”
This proud affirmation of judicial progress which a distinguished jurist was able to make twenty years ago as to conditions in England, is in strong contrast to a statement made by President Taft only a year ago when, in the beginning of an address in New York on the “ Delays and Defects in the Enforcement of Law in this Country,” he said, —
“If one were to be asked in what respect we had fallen furthest short of ideal conditions in our whole government, I think he would be justified in answering, in spite of the failure that we have made generally in municipal government, that the greatest reform which could be effected would be expedition and thoroughness in the enforcement of public and private rights in our courts. I do not mean to say that the judges of the courts are lacking either in honesty, industry, or knowledge of the law; but I do mean to say that the machinery of which they are a part is so cumbersome and slow and expensive for the litigants, public and private, that the whole judicial branch of the government fails in a marked way to accomplish certain of the purposes for which it was created.”
The first impression of President Taft’s statement upon the average reader is that it is an exaggeration: that while nodoubt there is need of reform in legal methods, nevertheless, to give to the reform of legal procedure such transcendent importance, is to over-emphasize its relative value. But this first impression vanishes when we consider that but for the record — and that by no means perfect — of our poorest-paid judiciary, the judges of the federal courts, the ultimate failure of graft prosecutions and the punishment of rich men and dishonest corporations all over the country has been almost uniform; when we recall the humiliating collapses, elsewhere, of our criminal law, its demonstrated failure in so many cases to protect the public against crime by punishment of conspicuous public offenders; when we study, for example, the criminal law of Missouri and the frightful record of its inefficiency in the battle between the honest people of St. Louis and their plunderers; when we study the situation in San Francisco and see what bulwarks for crime can be found in California’s higher courts, there can be no doubt that law reform is a vital issue in America to-day.
No one can read the reports of the transactions of the National and State Bar associations in our country without being struck with the increase in law-reform propositions which are there found in the topics of discussion and in the subjects of papers read. The lawyers who conduct these discussions and prepare these papers, and appear in them as advocates of specific improvements in legal machinery, are, moreover, not the young and restless members of the bar, but the leaders of the profession, whose standing gives weight and authority to their advocacy.
In this movement there is no occasion for general attacks upon the judiciary. The yellow press, to which a technical judge and eloping parson are objects of equal interest, can be relied upon to misrepresent the actual condition of our jurisprudence without assistance from sober-minded lawyers or laymen. Many of the defects in our law which require a remedy are judge-made, no doubt. But the idea that the judiciary is responsible, and solely responsible, for all our troubles in the bad workings of over-complicated law machinery is at once absurd and unjust. The courts of New York, for example, never devised that monster civil code, of nearly thirty-five hundred sections, which governs by set rules everything but the home life of the lawyers and judges, and prescribes with inflexible precision a myriad matters which demand neither inflexibility nor precision. The judges are not responsible for obscure and badly written statutes, the interpretation of which requires the full powers of clairvoyants, few of whom, it must be admitted, are upon the bench. When the legislatures lay down fixed rules in statutory enactments for judges to follow, it is not the fault of the judge if his oath of office compels him to follow where he is far more fit to lead. Where, for example, the statute law of a state requires the judge in his charge to the jury not to discuss the facts of the case, but merely to hand to the foreman some abstract statements of law for laymen to apply as best they may, it is no fault of the judge if the applications of the law made by the jury are at times bizarre in the extreme.
The spirit of law reform which is healthful, and which is likely to effect results, must be one whose motive is not the placing of blame upon some scapegoat,— jurist or legislator. — but rather the correction of defects in machinery, however occasioned, and the evolution of a better system of justice.
It is entirely logical and proper that in our desire to reform our methods of legal procedure, we should study the effect of law reform in England. The main impulse toward law reform there, beginning over seventy-five years ago, came from the observation by discontented English critics of the salutary effect of law reform in America, for we took the first great forward step in abolishing cumbrous and antiquated machinery and substituting more direct methods. It is only fair therefore, when we in turn are taking thought as to still further reforms and improvements here, that we should look to England and see what suggestions she may have for us, in return for those which we made and she profited by over half a century ago.
Dealing in this paper solely with the machinery of civil litigation, one fundamental difference between English and American methods, which should be of interest to us, is the relatively greater importance attached there to what may be called the stopping-point in litigation. By this is meant something more than speed in getting to trial and being heard. It is speed not only in getting into court, but also in getting out of court, which the English have admirably provided for in their judicial system. With us this last feature has as yet received little attention. It is because, in the writer’s judgment, our indifference to the litigant’s right to stop is a fundamental and far-reaching defect of American judicial machinery, that this paper is written to discuss it, and some of its most obvious and important consequences.
Two questions which are asked every day in lawyers’ offices all over the world, are, how much it will cost, and how long it will take. It is of the highest practical importance, to both the lawyer and his client, that satisfactory answers be made to both of these queries. They can scarcely be answered separately. A lawsuit which takes years to dispose of is bound to cost, in proportion, more than one which can be speedily brought to a termination. The English system recognizes this, and has adequate facilities for termination of litigation by a final judgment. A case can be heard and decided in the High Court a month after it has begun; and if an appeal be taken, it can be heard and finally decided and ended in the Court of Appeal five months later. Only a tenth of the cases tried in England in the High Court are appealed at all, and of the appealed cases very few are ordered re-tried.
Compared with the great dispatch characteristic of English litigation, the interminableness of our own makes an extraordinary contrast. One prevalent cause of that interminableness is the unlimited and senseless scope of the right of appeal. In Illinois there are six kinds of frequently occurring cases in which the delays of reaching a final judgment are extraordinary. The case is tried and decided first in the County Court. An appeal can then be taken to the Circuit Court, where the witnesses again must be called and the whole case re-tried as though no previous trial had taken place, and in complete disregard of the proceedings and judgment of the County Court. The defeated party may then again appeal to the Appellate Court, where the case is heard on a printed record; and from that court, on a similar printed record, if still defeated, he may go to the Supreme Court of the state. In case there has been no error committed in the court below, the law-suit, after having been decided four times, may come to an end in two and a half to three years after it was begun.
The folly of a system which permits a litigant to require a re-trial of the whole case, as though the first trial had never occurred, simply because the defeated party desires it, and without any proof whatever that any error or injustice was committed in the first trial, seems too patent for discussion. It is all the worse when this method of duplicate trials applies to the small claims of the poor for wages, and the like, and puts the poor litigant to the delay and expense of two trials before he can hope to get his rights. This is the case in Pennsylvania to-day. A claim under a hundred dollars goes to trial first before a magistrate. After his decision, the defeated party may appeal to the Court of Common Pleas, and the whole case then is re-tried as though the first trial never had taken place. The delay and expense of these trials are a burden on the honest creditor, and afford every possible opportunity for dishonesty and “beating” by debtors. By these retrial methods, a solvent defendant who owes a hundred dollars or less in Philadelphia can put off payment if he wishes for two or three years.
Another and more general form of legal interminableness is of a different kind. It is caused by the re-trial of the same case over and over again, following reversals in appellate courts for “error,” the effect of each reversal being to send the case back where it started, to be gone over again, the witnesses being reassembled in court and reëxamined as though no trial had ever been held.
Over a year ago the writer listened to a lawyer arguing an appeal in the Appellate Division of the Supreme Court in New York. It was a very uninteresting law-suit about the title to a small plot of land in the city. At the close of his argument, the lawyer said, “This case has been tried three times in the lower court by juries, has been heard on appeal in this court twice, and once in the Court of Appeals. The expenses of the litigation already have absorbed the value of this property in dispute. If there be some way which the court can find for deciding finally this dispute here in this court, without requiring it to be tried over again, it will be a blessing to all concerned.”
This blessing the court found itself unable to confer, and six months later the case again was on the first round of the judicial ladder for a new trial in the lower court; and recently it has been once more decided in the Appellate Court, and is now on its weary way to the Court of Appeals. This is hardly an exceptional case. Interminableness in one form or another is a characteristic of our judicial method.
In one of the fairly recent volumes of the New York Court of Appeals Reports is contained the last chapter of a famous and extraordinary case, which is a gross illustration of this interminableness, and an extreme though characteristic example of its results. The court record of the last chapter of this law-suit is curt and obscure; hardly what one might expect for an extraordinary case. It consists of eight words: “Judgment and order affirmed with costs. No opinion.” These eight words mark the close of a simple accident case involving no difficult questions of law, which had been in the courts continuously for twenty-two years ! It had been tried before juries seven times. It had been argued in appellate courts ten times. The final bill of costs in the case, not including lawyers’ charges or the cost of printing seven different volumes of testimony, each of from two to three hundred pages, as required in the appellate courts on the various appeals, and not including any of defendant’s expenses whatever, is over two thousand dollars. A conservative estimate of the expense of this litigation not including lawyers’ fees probably would be five thousand dollars.
This law-suit was one brought by a brakeman, named Ellis R. Williams, who had been employed by the Delaware, Lackawanna and Western R. R. Company, to recover damages from the railroad company for personal injuries. He had been injured, in July of 1882, by striking against a low bridge as he went under it on top of a box-car. His suit against the railroad company was brought in December of that year. It was tried for the first time, in 1884, before a jury in the Supreme Court at Utica, and he obtained a verdict against the railroad for four thousand dollars.
Now, there are two courts in New York to which a defeated party to a law-suit can successively appeal. First, comes the General Term, now known as the Appellate Division, composed of judges of the Supreme Court. There are no juries in this court, and the case is heard on the briefs and arguments of the lawyers and on a printed record containing the testimony of the witnesses in the court below. The defeated party tries to show this court that either the judge or the jury was wrong in the lower court. If he fails to convince the first of these appeal courts, he may again appeal to the highest court of the state, the Court of Appeals. The full course of a jury case in New York, where the trial in the original court has been held in accordance with the established rules of law, is one trial and two appeals. If it has not been so held, one or the other of the appeal courts usually sends the case back for a new trial — sends it back where it began, where it is tried again before another jury as though it had never been tried before. The whole process is like a child trying to climb a toy ladder with three rungs. He begins on the first, balances himself, climbs from the first to the second, loses his balance, falls back. He picks himself up, climbs upon the first rung, then to the second, then to the third, and comes down with a thump on the floor again. When he gets to the third rung, and stays there, the law-suit is over.
To give in detail the various trials, appeals, new trials, and new appeals, in Williams’s case against the railroad company, which followed after the first verdict in his favor, would take more time and patience than any one but a well-feed lawyer would willingly give it. Condensing the story as much as possible, it is enough to say, that on the first appeal to the General Term, the railroad scored. Williams fell from the second rung of the ladder back to the floor. There had been a mistake in the way the case had been tried in the court below, and a new trial was ordered. On the new jury trial. Williams succeeded again. Once more the railroad appealed to the General Term, and this time it was defeated. No new trial was ordered and the railroad accordingly took an appeal to the Court of Appeals.
This portion of the law-suit, that is, up to the time when Williams first arrived at the third rung of the law ladder, — the Court of Appeals, — occupied seven years, so that the case even then was a fairly old one; and it would seem that, if there were some way in which a seven-year-old law-suit could finally be determined by the court and stopped, it would be a good thing for both parties. The court was in an excellent position to render such a final judgment. The record which it had before it, when this appeal was heard, contained all the testimony which either party thought was material to the dispute, and everything which had occurred at the trial. Among other things, it showed that at the end of the case, after all these witnesses had been examined and both sides were through with their testimony, the railroad lawyer had asked the judge to dismiss the case without sending it to the jury, claiming that, even accepting Williams’s own story as true, he had no legal claim against the railroad company. The Court of Appeals, after listening to the lawyers and examining the printed testimony, decided that the railroad lawyer was right and the judge should have dismissed the case.
It reached this conclusion from reading Williams’s own testimony. He admitted that he had been under the bridge many times on the top of box-cars, and knew that it was a low bridge and dangerous; yet he had turned his back to it as the car went under it on the day of the accident, and had been struck while thus walking toward the rear of the car. In view of this testimony of Williams himself, the Court of Appeals was of the opinion that the judge who presided at the jury trial had been wrong in not dismissing the case.
Now, to the mind of an ordinary business man, it would seem as if this was the logical place for this law-suit to stop. It would seem as if there was only one thing now left to be done, and that was, by some appropriate judicial red tape, to end the case in the railroad’s favor. The Court of Appeals in New York is empowered. as the highest courts in other slates generally are. “to grant to either party such judgment as such party may be entitled to.” But instead of stopping a law-suit which then had been in the courts continuously for seven years, and on the full merits of which it had just decided, it started the wheels of litigation over again. It granted a new trial.
Now, Williams had been badly hurt, and his injuries were such as to appeal to a jury. During the seven years of this litigation he had twice had verdicts of sums which must have seemed large to him, and he probably had built many hopes on receiving the money the jury had awarded him. All these hopes were now destroyed. The Court of Appeals had decided, substantially on his own story, as he had told it to the jury, that he was not entitled to damages from the railroad company.
It is not in human nature to accept tamely and humbly such a killing decree without an effort to escape it. It is not in human nature for a man who has been for seven years fighting in the courts a hotly contested law-suit, which has twice been decided in his favor, to acquiesce without a struggle in a decree against him. Williams had been defeated in the Court of Appeals solely by his own testimony. If he was to succeed on a new trial, there was one thing, and only one thing, which he could do. He did that thing. On the new trial he completely changed his testimony as to all those matters on which the Court of A ppeals had based its judgment against him.
It is unnecessary for the purposes of this article to follow in detail the subsequent history of this law-suit. Suffice it to say that, after eleven years more of litigation, the plaintiff actually succeeded, by thus changing his testimony, in getting sixty-five hundred dollars of railroad money on the seventh new trial of his suit. The Court of Appeals acquiesced in 1904 in a verdict for that amount, twenty-two years after the commencement of the action and fourteen since that court had decided that Williams had no case and should have been put out of court.
The lesson of this extraordinary case is plain, and it is the importance of that lesson which is the writer’s excuse for so long a consideration of it. A system of law which has not adequate terminal facilities must be judged by its results, and one of them is the creation of unnecessary temptations to perjury. The court which created that temptation in Williams’s case has itself declared: —
“ It frequently happens that cases appear and reappear in this court, after three or four trials, where the plaintiff on every trial has changed his testimony in order to meet the varying fortunes of the case upon appeal.”
In every state where a similar system prevails — and there are many of them, — the Williams case can be duplicated. For human nature is the same in one state as in another, and the temptation to which Williams was exposed is the temptation of every litigant in a law case in which an unnecessary new trial is ordered by a court which is itself in a position, with all the facts before it, to render a just and final judgment.
The disadvantages to justice herself of the treadmill system are equaled only by those to the litigant. A grimly humorous illustration of one of the results to the litigant may be found in another New York law-suit which reached a final chapter recently in the Court of Appeals. It was a complex ease against an insurance company on some policies of insurance, and each time it was tried it took from a week to two weeks’ attention of court and jury. Owing to reversals and new trials ordered by appellate courts, it had to be tried nine times. It was in the courts from 1882 to 1902. The plaintiff became at last so sick and disheartened with his interminable law-suit that he abandoned it, refused to go to his lawyers to consult with them about it or to appear when the case was being tried. The lawyers had themselves spent over forty-five hundred dollars on fighting the case, and had worked on it for nearly twenty years. Their client having abandoned them, they settled the case for thirty thousand dollars, and took the money themselves for their fees. The last chapter of the litigation was an unsuccessful attempt by the receiver in insolvency of the plaintiff to make the lawyers give up some of their fees to their client’s creditors. How much the twenty years’ delay in the law-suit had to do with that insolvency it is impossible to say; but such an outcome, to the lay mind, seems hardly satisfactory as a result of twenty years of litigation, of nine trials, and seventy-two days’ time of over a hundred jurors.
While these illustrations have been taken from the New York courts, this has been done merely for convenience, and not because (he Marathon method, of the results of which they are extreme examples, is peculiar to that state. The courts of New York, through the learning and ability of their judges, have stood for a century at the very front of the American judiciary. The disregard of the litigants’ right to stop is not confined to one state or section, but it is, with few exceptions, a general and characteristic defect in American justice. It exists through the courts, even when the legislatures have provided adequate means for the termination of litigation. In Pennsylvania, for example, there was adopted some fifteen years ago a statute giving its appeal courts power to enter such judgment as would do substantial justice without sending the case back to the original court. One of the leaders of the Philadelphia bar testified, before the Law’s Delay Committee in New York, that during twelve years in which the statute had then been in effect, the Supreme Court had exercised the power given by the statute only once.
There is not a recent volume of either the intermediate or highest of the New York appeal courts which does not contain some case which has been tried over again three or four times in the lower court, through successive re-trials ordered by higher courts on appeals taken. Such decisions cannot be duplicated in English justice. There the endless re-trial of the same case for “error” is neither required nor permitted. The fundamental importance, from practical considerations, of a system of justice with “ terminal facilities,” is recognized there, but not here.
Now, this difference in point of view is important not only in itself, but in its necessary consequences. It is entirely logical that a judicial organization which does not consider the stopping-point of a lawsuit as at all important should be technical in procedure, and filled with pitfalls, delays, and interminable re-trials, and an extraordinary over-development of higher courts and appeal machinery. It is equally logical that a system which does consider the stopping-point of the law-suit as practically important should be one in which technicalities of procedure are absent, where new trials are ordered rarely and only for extraordinary reasons, and where the great strength of the system is expressed, not only nominally but actually, in its trial courts, the courts where the whole dispute is first heard and decided.
It is because of this fundamental difference in point of view that we have developed top-heavy appellate courts, with unlimited rights of appeal to them for delay as well as for justice. It is through the disregard of a stopping-point as a fundamental requisiteof substantial justice that the appellate courts develop technical “error55 and order new trials for trifles, till the difficulties of getting justice in the court of first instance are almost insuperable.
In England everything is done which can be done to make the first trial a conquest of substantial justice. In the courtroom the judge has free play. He is fettered with no technical rules. He turns promptly out of court cases too flimsy to deserve the consideration of court and jury. He expresses his opinion on the facts freely. He is the keystone of the judicial arch. He has none of the terrors of reversal hanging over him for any technical error he may make, because the English law binding upon the appeal courts expressly provides: “A new trial shall not be granted on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the court to which the application is made some substantial wrong or miscarriage has been thereby occasioned in the trial.” He is endowed with such judicial power because he is a part of a system which expects justice to be rendered at first hand in his court, and which considers speed in reaching a final judgment essential to its usefulness. The judge who in the first instance sees and hears the parties and their witnesses, who hears the case while it is a living thing, is there considered at his actual importance. A system which reduces his importance, which fetters him with rules so technical as to tend to make him afraid of his shadow in his own court, which deprives him of influence with his juries, which forbids him to dismiss cases too flimsy for judicial consideration, is and must be a system which does not expect justice to be rendered in the first court, but in some appellate court, or rather in some lower court after some appellate court has decided wherein the first lower court has failed to meet the full requirements of the law. The over-development of appeal courts in America is largely due to this spirit.
The effect of the over-development and mis-development of appellate courts upon civil justice can be better explained perhaps by an illustration. The illustration chosen is taken from the history of a somewhat famous accident case in New York, which was tried over three or four times by juries, and was passed on twice by the Appellate Division of the Supreme Court and once by the Court of Appeals. The plaintiff was a widow suing for the death of her son, who was killed by a street car. She had a verdict each time from the jury. The appellate courts were inclined to consider the plaintiff’s case weak, and that the justice of the verdict was doubtful. The first time the case was tried, the judge thought the evidence was so meagre as to require a dismissal, and dismissed the case. When, on the appeal taken by the widow, the case first reached the Court of Appeals, that court established what was in effect a new rule for all such cases, and declared that however flimsy the plaintiff’s testimony was, if it was such that if it were uncontradicted it would justify a verdict, the case must go to the jury, even if the evidence produced by the defendant was overwhelmingly greater and showed clearly that there was no justice in a recovery by plaintiff. On the re-trial ordered by the Court of Appeals the plaintiff had a verdict, and the case again went up on appeal taken by the railroad. The Appellate Court once more reversed it. The ruling it made was this. The trial judge had attempted to tell the jury how much care the little boy who was killed was bound to use in crossing the street where the cars ran, and had said that he was bound to use the care which a boy of his tender years would use in the same situation, and “would deem adequate thereto.” The Appellate Court reversed because the trial judge had used the words quoted. They were held to be erroneous, and were assumed so to have influenced and misled the jury that they had brought in a bad verdict. Now, of course, the jury was not misled at all by this ruling, and a reversal on this ground was absurd. The situation, however, is quite clear. The Appellate Court, as a matter of fact, was influenced in reversing the verdict, not by the “error,” but by the apparent injustice of the verdict itself. It placed its decision upon a highly technical ground because it found no other legal ground for setting aside the verdict.
But, by this and a multitude of similar decisions, it has rendered accident law, which in view of the nature of these cases ought to be fairly simple, a complicated and highly technical branch of legal art, and has multiplied enormously the difficulties of trial judges in managing these cases. Now, it may be that in this particular case it was proper to prevent the widow from recovering the verdict which had been awarded to her. There was some benefit to the defendant by this ruling, because the record shows that on the next trial she got a smaller verdict, so that the four erroneous words quoted cost her nine hundred and sixty dollars each. The question in its broader aspect, however, is whether the decision of the Appellate Court and others like it are worth what they cost. In other words, whether it is a good policy to make the general accident law, for example, so technical and difficult and filled with so many possibilities of legal error, that the trial judge is constantly nervous in trying to avoid making mistakes, and has his mind occupied with these technical rules rather than with the real merits of the case he is trying.
An old business man who for a quarter of a century has managed, with distinguished success, a corporation maintaining many departments, once said to the writer, “There is at least one demonstratedly wrong way to run a business corporation. That wrong way is to make every department chief feel that there is not a dot or cross that he makes or a minor rule that he lays down, however unimportant, which is not likely to be changed in the president’s office a day or so later. The surest way to spoil a good department manager is to make him think that the actual management of his department, not in general outlines only but in detail as well, is to be done in the president’s office and not in his own.” There is more efficiency lost to a big business by a top-heavy president’s office, than in any other way. It can hardly be doubted that a top-heavy judicial system loses its efficiency in the same way. If the judge who presides at the trial of a case, who listens to the witnesses as the attorneys questions them, is made to feel that the detail of his work, as well as its genera! principles, is to be reëxamined and revised somewhere else, the judge, like the business manager, loses not only a certain freedom necessary for his full efficiency, but a proper sense of responsibility as well. That this policy of interference is a failure may be denied by appellate court judges and by lawyers familiar with the workings of the court. Technical decisions which multiply the uncertainty and delays of the law are the last thing that people want. Delays, uncertainties, new trials, and the absence of terminal facilities, are not aids to justice, but unwholesome substitutes for it.
There is a well-known historical objection to this method of trying to avoid injustice by multiplying technicalities. The technicalities of criminal law which mightily disgust the people to-day and result so often in the escape of offenders justly convicted, had their historical origin in the efforts of English judges a century and more ago to avoid rendering judgments of death and outlawry for minor offenses, — sentences which a barbarous criminal law then required the judges to render. To avoid one evil they industriously created another. Because the criminal law was barbarous, they made it almost ludicrously technical. We inherited the technicalities and made them part of our more humane criminal law, and it is an inheritance which has been, and to a large extent continues to be, a stumbling block to justice and a shield for guilt. The development of technical law as a means of avoiding possible injustice in individual cases is a demonstrated failure.
One of the most serious results of a meddlesome over-control of trial judges by appellate courts, and their system of deferring final judgment by interminable re-trials directed over and over again on technical grounds, is the breaking down of the jury system. The number of cases increases perceptibly in which the judges of appellate courts set aside verdicts and order new trials, because they are convinced that the juries have brought in unjust verdicts. The theory of our law has always been that the jury is to pass upon disputed questions of fact, deciding which of the opposing witnesses is to be believed, but that the courts have the right to set aside verdicts when they are so contrary to the clear weight of the evidence as to show bias, prejudice, or passion, on the part of the jury. Why are the courts interfering so much more frequently than they formerly did with jury verdicts? Are the jurors of a lower order of intelligence than they were seventy-five years ago? Is the modern juror less just, more prone to passion and prejudice, and less open to reason? Any such deterioration in the quality of a juror will hardly be claimed.
There is another explanation which deserves more consideration than it has received. It is that the appellate courts are tacitly confessing that their method of managing trial judges is, in an increasing number of cases, working substantial injustice. It is the example of the effect of the lack of terminal facilities of our law upon the quality of the law. Under a system in which new trials are granted by appellate courts for trifling technical reasons, the conscientious judge at the jury trial must be doubly anxious to avoid these possible “errors” which will result in the miscarriage of justice by a new trial granted in an upper court. A trial judge whose mind is focused on the avoidance of legal “error,” whose charge is a desperate effort for correctness rather than clearness, is bound to lose his influence with the jury in handling the broad lines of the case. Charging a jury used to be considered a fine art, one requiring the highest type of judicial mind in marshaling the facts of a complicated case so as to make clear the bearings of the law upon them, to show the jurors the issues, the point which it is their province to decide. The average juror respects the judge, is sensitive to his opinion, is anxious to follow his rulings and to do justice according to law, provided, and always provided, he can understand what the judge is talking about. When the charge to which the jury listens is onethird vague platitudes and two-thirds undigested extracts from the opinions of the appellate courts laboriously collated by the opposing lawyers and charged by request, couched in legal phraseology which a lawyer would have to read twice to understand and which a jury is supposed to understand by intuition, the authority of the trial judge over the bewildered jury is gone, and the verdict which some appellate court reverses later is a reflection upon that court, a commentary on the results of its own methods far more than upon the jury system.
The weak spot in the American judicial system is in theso-cailed lower courts. This is true because the public has an exaggerated opinion of the importance of those tribunals where the judges sit in robes and austere dignity, and uphold the constitution, and write long and learned opinions which are printed in law books and sometimes published in newspapers. It is the weak spot because, through an indifference generated by this mistaken opinion, the public so often permits the election to the lower ranks of the judiciary of political henchmen and semiincompetents, in the complacent belief, shared by many lawyers, that all will be well so long as these dignified upper courts remain to right, at least temporarily, the wrongs of the man with a purse long enough to get there. It is the weak spot because the appellate courts, in a meddlesome over-development of their own functions, tend to hamper and confuse the trial judge in his work by multiplying technical trifles to govern his conduct.
The undue subordination of the trial judge lies at the basis of the interminableness of litigation. The complaint is made often that commercial litigation has largely disappeared from our courts. Why should there be any? If simple accident cases, through technical slips and procedure, can be ordered re-tried three or four times, what chance have complicated commercial causes, involving difficult questions of law or fact, of reaching final termination with anything like promptness ? Commercial litigation will not return to the courts solely by shortening the delay in getting to trial. The business man wants to know when he is likely to get out of court, and lacking any reasonable assurances on that score will settle his grievances or charge them up to profit and loss.
Interminableness is the great defect of civil justice in America. It is a defect which must be removed if the courts are to perform their proper functions. Justice at first hand is what the honest litigant wants. It is the only kind many suitors can afford. The causes which make our first-hand justice uncertain or ineffectual must be removed. The right of appeal must cease to be the means of denying and delaying justice. Complicated and inflexible codes of procedure must be made simple. The old Latin maxim which Blackstone knew, and which modern American law has forgotten, must be again recognized and its validity restored: “Interest rei publicæ ut sit finis litium.” (It is to the advantage of the state that there should be an end to litigation).