TRIAL COURTS FOR CIVIL CAUSES
The great bulk of litigation is confined to the civil trial
courts, that is, to courts for the trial of ordinary causes
between man and man. It also has its seat in the trial courts of
the States, for not only is the judicial power of the United
States confined by the Constitution within narrow limits, but
these have been made still narrower by the action of Congress
from time to time.
Most lawsuits never get to trial. The defendant generally has no
defense, and is well aware of it. The suit is brought to obtain
security or force a settlement. He employs no lawyer and lets
things take their course. The result is a judgment against him
for default of appearance; for if one who has been duly summoned
to court to answer to a demand fails to attend and answer, the
court assumes that there is no answer that he could make, and
disposes of the cause on such evidence as the plaintiff may
produce. On the other hand, the plaintiff often does not care
for a judgment. He has become satisfied that, if he got one, he
could not collect it, or he has availed himself of the suit to
secure a compromise of the matter in demand on satisfactory
terms. In such case, or if, after bringing an action, he becomes
convinced that he cannot maintain it, he withdraws it, or if the
defendant insists, suffers a judgment to go against him, called a
nonsuit.
In some States the writ or process by which the action is begun
must be accompanied by a full statement of the particular nature
of the plaintiff's claim. In others this is not required, and
such a statement is only furnished when specially ordered by the
court. If the case goes to trial on the merits, it will be on
such a statement furnished by the plaintiff, and on some paper
filed by the defendant by way of answer. Occasionally these
pleadings, as they are called, are such as to call out further
statements or claims by way of reply and rejoinder. Their form
is now generally regulated by statutes, and is much the same in
most of the States, being based upon a system known as "Code
Pleading," which originated in New York about the middle of the
nineteenth century. It is simpler and less technical than the
system under the common law which it replaced.
If the defendant has any objections to the maintenance of the
suit, on such a ground as that it is brought in a wrong court, or
a wrong way, these are first disposed of. Then, if he asserts
that the plaintiff on his own showing has no case, or if the
plaintiff asserts that the defense set up is insufficient on its
face, this being a question of law, the judge decides it without
the aid of a jury. When, however, the facts are in dispute, a
jury must be called in, if either party claims it, in an action
not of an equitable nature, when the matter in controversy is one
of any considerable amount.
In this country we adhere to the old common law mode of taking
exceptions to the legal sufficiency of written pleadings. This
was by filing a paper called a "demurrer," in which the
particular objections were set out, unless, as was frequently the
case, they were so fundamental as to be apparent at the first
glance. In many States, however, the objections must always be
particularized. In England demurrers are no longer used. Her
Judicature Act of 1873 put an end to the common law system of
pleading, reconstituted her whole method of judicial procedure,
and authorized the judges to make rules and orders from time to
time to adopt the new scheme to convenience in practice. One of
their orders, passed in 1883, abolished demurrers. In place of
them, the party desiring to have the benefit of points of law
arising on the face of the pleadings may state his point to the
court and ask to have it set down for separate argument before
proceeding to a trial of the cause on the facts. American
lawyers are not satisfied with the reasons which led to this
change. They were that the old practice made it a matter of
right to claim a special hearing on a law point, while the new
order would leave it to the discretion of the judge. The English
judges are few and able. Such a plan may work satisfactorily
under their administration, but it might often lead to useless
delays and expense if introduced in a country where judges are so
numerous and of such different qualifications as is the case in
the United States.
Our trial courts are now generally held by a single judge. Until
the latter half of the nineteenth century it was not uncommon to
have three judges sit together in county or city courts. One of
them would be a lawyer and the others not.[See Chap. VIII.] In
cities the two side judges were generally aldermen. A tribunal
thus constituted is better adapted in some respects to trying
questions of fact than a single judge. It is a jury of three
acting by a majority. But for the conduct of a jury trial it is
unwieldy, slow-moving and uncertain. In most cases any question
of law or legal practice will be virtually decided by the
presiding judge, but he will usually pause to go through the form
of consulting his associates. Occasionally they will overrule
him, and in such case it will be apt to be by a misunderstanding
or misapplication of law. The expense of three judges, however
moderate the compensation, has also weighed in favor of an
abandonment of the system. It naturally results in paying too
little to the chief judge, and too much to the others; and always
costs more than it would to pay one man a sufficient salary.
We have not the need of several judges to hold a trial court,
which is felt in many countries. They use them for a purpose
which our juries supply. For similar reasons Americans have not
seen any occasion for organizing special courts, such as are the
German _Gewerbegerichte_ and _Kaufmannsgerichte,_ to
try special classes of causes. A jury of twelve will be apt to
contain some men who will adequately represent those interested
in any ordinary industrial or commercial controversy.
Petty suits not of an equitable nature must generally be brought
before a justice of the peace, who disposes of them himself, both
as to matters of evidence and fact, but subject to an appeal to a
higher court in which a jury trial can be had. In some States he
can summon in a jury of six and leave the facts to their
determination. The pleadings before him are usually in the same
form as in the higher courts.
In jury trials of civil causes the judicial function is, so far
as possible, divided into two distinct parts. All questions of
pure law are decided by the judge alone. All questions of pure
fact are decided by the jury alone. All questions turning on the
application of the law to the facts are decided by the jury under
instructions from the judge as to what applications of the law it
would be competent for them to make under the particular
circumstances which they may find to have existed. The judge
also has a large discretionary power in minor matters arising in
the course of the suit. It is for him to say when it shall be
tried; whether the written pleadings are in proper shape, and if
not whether they may be amended; and in what order and within
what limits the evidence may be introduced.
No countries in the world have so artificial a set of rules of
evidence as England and the United States. This is because in no
other country is the right to a jury trial so extensive. Many of
these rules date back to the early history of the English common
law. It was a time of general illiteracy. The ordinary juror
could not read or write. His powers of reasoning and
discrimination had had little or no cultivation. It was thought
dangerous to allow him to listen to any evidence that was not of
the clearest and best kind. It was thought necessary to bring
all witnesses in person before him and let him hear their voice
and look into their faces in order to give him the fullest
possible opportunity to determine whether their testimony was
worthy of credit. But while our rules of evidence were devised
for jury trials, they are applied with equal rigidity in all
trials. A jury may be waived; a single judge may hear the cause;
and yet he must rule out of consideration whatever would have
been inadmissible if it had been made the subject of a jury
trial.
Much that in other countries is helpful in reaching a just
conclusion is in this manner shut out in American courts. A man
of the highest character, for instance, may say before twenty
listeners that he saw a certain person shoot and kill another,
and state how the whole thing happened. The person thus accused
is sued for damages under a statute permitting such a remedy by
the representatives of the man shot. Before the trial the
witness of the act dies. He was the sole witness. There is no
other testimony to be had. Under our system of practice, those
to whom the statement was made cannot be allowed to testify to
it. Such testimony would be "hearsay." It would put before the
jury two questions, first whether such a statement was really
made, and then whether, if made, it was true. The law of
evidence says that they ought not to be perplexed by questions
upon questions.
The tendency of American legislation of late years has been
strongly toward removing some of these artificial bars to getting
at the truth. The common law thought it dangerous to allow a
jury to hear any witness not under oath, nor under such an oath
as implied his belief in the existence of a God, or any witness
having a pecuniary interest, in the event of the cause. An
atheist or an agnostic could not testify. The plaintiff and the
defendant could not. These restrictions have been almost
everywhere repealed.
The trial judge has also, and necessarily, a large discretionary
power in excluding testimony which has only a remote bearing on
the case, and in limiting or extending the examination of a
witness so as on the one hand to prevent needless repetition, and
on the other to get out the truth and nothing but the truth. He
has similar authority to restrain the arguments of counsel within
reasonable limits.
A trial judge suddenly called upon to make a ruling on some point
of law in the progress of a trial may make a wrong one. If so,
he may have an opportunity to correct it at a later stage of the
proceeding. He has admitted evidence which should have been
excluded. In his charge to the jury he may instruct them to
disregard it, and his error will thus be cured. He has excluded
evidence which should have been admitted. Before the case is
closed he can change his ruling and allow it to come in. But so
long as any ruling stands unchanged, whether it is in accordance
with law or not, it is the law of the case for the purposes of
the trial. Counsel may endeavor to procure a reconsideration of
the question, but they cannot ask the jury to adopt a different
view from that taken by the judge. Their only remedy is by a
motion for a new trial, after the verdict, or proceedings in
error before a higher court.
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Trial courts generally sit during a greater number of hours in
the day than appellate courts. This is particularly true when
they are held for short terms in a country shire town. In the
larger cities where they sit during a large part of the year they
generally have established hours from which they rarely depart,
such as from ten in the morning to five in the afternoon, with a
recess of an hour for lunch or dinner. Formerly nine o'clock was
a more common hour for opening court. In New York in 1829 the
sittings were from eight to three, when there was a recess of two
hours for dinner, and then from five till some time in the
evening, occasionally as late as ten.[Footnote: Kennedy, "Memoirs
of William Wirt," II, 231.]
The modern tendency everywhere is toward a shortening of the
hours of daily session, especially when an official stenographer
is employed.
The clerk keeps a docket-book in which each case returned to
court is entered and numbered. The entry reads thus:
John Doe
Smith
vs.
Richard Roe
Jones.
Doe is here the plaintiff and Smith is the attorney who brought
the suit for him. Roe is the defendant and Jones is the attorney
who appears in his behalf. If there be more than one party on
either side the words _et al._ will be added, signifying as
the case may be, _et alius, et alii_ or et alium,_ or
should there be three or more defendants, _et als_,
signifying _et alios_.[Footnote: Another book is kept for
criminal cases, which are docketed as "The State _v._ John
Doe," in others as "The People _v._ John Doe," and in the
federal courts as "The United States _v._ John Doe."] From
this docket trial lists are made up for each term or session of
court. Assignments for trial are sometimes made by the court and
sometimes arranged by the bar subject to the approval of the
court. Several cases are commonly set down for each day, so that
if one falls out another may be ready, and in every case so
assigned the parties must be prepared at their peril to appear
and proceed at any minute when called upon.
In courts having a large docket of cases it is customary to set
apart one day in the week for the disposition of incidental
motions and for arguments on points of law.
When a case is called for trial the plaintiff's counsel opens by
stating its nature and the main facts as set out in the
declaration or complaint which he expects to prove. Sometimes
the pleadings on both sides are read at length. The plaintiff's
witnesses are then examined orally, after the examination of each
an opportunity being given for his cross-examination by the other
party. The testimony of witnesses whose attendance cannot be
had, which may include any living out of the State (or, in the
federal courts, over one hundred miles from the place of trial),
or who are infirm or sick, may be secured by previously taking it
down out of court in the form of a written deposition, under
oath, before a magistrate. In such case the adverse party must
have such notice as to enable him to be present and cross-examine
the deponent, or to file written cross-interrogatories.
Depositions are received in the same manner and subject to the
same objections as oral testimony. In cases in equity a
considerable part of the testimony is generally presented in
written form, either by depositions of the kind described or
certified by a special officer appointed by the court for the
purpose, who may be called an "examiner."
When the plaintiff's case has been thus presented, his attorney
announces that he "rests." The defendant's attorney then states
what he proposes to prove, and produces his evidence, at the
close of which the plaintiff has the opportunity to meet any
testimony so produced as to points not covered by the plaintiff's
case as presented "in chief," by rebutting testimony. Should
there be any new point brought out in the latter which the
defendant had not anticipated in presenting his case (which
rarely happens), he may now be allowed to introduce further
testimony as to that.
At the close of the evidence the plaintiff's counsel argues for
his client; the defendant's counsel replies; and the plaintiff's
counsel is then heard in answer to anything which has been said
in behalf of the other side.
If the trial has been had before a judge without a jury he then
commonly takes the written pleadings and makes up his decision at
his leisure; but if the case is plain may give final judgment on
the spot.
If the trial has been before a jury the parties argue as to facts
in dispute to them, but as to the law upon these facts to the
court.[Footnote: See Chap. XII.]
In some States the arguments on the latter question are made
before those on the former, and written requests or "prayers" for
instructions to the jury as to the law are submitted to the
court, upon which it passes before the jury are addressed. In
most States there is no such division of argument; judge and jury
are addressed in turn during the same speech, and counsel first
know what view of the law is taken by the court when the judge
gives his final charge.
In every jury trial, after all the evidence is in and the
arguments concluded, it is the duty of the court to instruct the
jury as to what the precise controversy is and what disposition
of the cause it would be permissible for them to make. If in
view of facts which are undisputed by either party there can be
in law but one conclusion, the judge should direct them to render
a verdict accordingly. But if the facts might fairly be found as
they are claimed to be by either party, he instructs them as to
the law applicable to the facts so claimed by each. He can, at
common law and by the practice in most States, give his own
opinion as to the weight of evidence on any point in controversy.
The common law requires unanimity on the part of the jury before
they can return a verdict. If it cannot be had they report a
disagreement, and the case stands over for another trial.
If they agree upon a verdict, it must, to be effective, be
accepted by the court. This acceptance is ordinarily a matter of
course, but if the verdict is plainly contrary to the evidence or
to the law as laid down in the charge, it may be set aside and a
new trial ordered. If it gives damages which are plainly
excessive, the judge may set it aside, unless the prevailing
party enters a _remittitur_ of a certain amount, that is,
formally stipulates on the record that the verdict shall stand
only for such sum as the judge may have thus indicated to be what
seems to him to be the utmost limit that ought to be allowed. In
some States, if the verdict is unsatisfactory to the judge,
though not so manifestly against the evidence that he would be
justified in setting it aside, he may return the jury to a second
consideration of the cause.
When a verdict is accepted judgment is rendered in accordance
with it. To this rule there are, however, certain exceptions.
It sometimes happens that a verdict is returned for a plaintiff
whose case as stated in his pleadings is one which in law is no
case; the defendant having failed to take this objection and made
his contest only on the facts. He then can ask the court not to
render any judgment upon it. This is technically called a motion
in arrest of judgment. Again, the verdict may be rendered, by
reason of the state of the written pleadings, on some immaterial
point, in favor of one party, when there are other points of
controlling importance in favor of the other, on which it has
been admitted that he is in the right. In such case the party
against whom the verdict is rendered may ask for judgment in his
own favor notwithstanding the verdict.
Verdicts are ordinarily given directly for the plaintiff or the
defendant. Printed blanks for such verdicts, one headed
"plaintiff's verdict," and the other "defendant's verdict," are
often handed to the jury when they retire, to choose from
according as they may find the facts. Such a verdict is called a
general verdict. Occasionally one of a different form is
returned at the request of counsel and by the permission of the
court. This is termed a "special verdict," and sets forth the
particular facts as found by the jury in detail, without finding
the ultimate issue for either party. This is only proper when
such a finding would have been simply a legal conclusion from
these facts. A special verdict leaves it to the court to apply
the law and render judgment as that requires.
In many causes the testimony is all taken out of court, before
some officer or arm of the court, who only reports his
conclusions from it as to the matters in controversy. This is a
common practice in equity, the case being sent to a "master in
chancery" for this purpose. In cases of a common law nature the
consent of both parties is generally required; but with that any
cause may be disposed of before an arm of the court commonly
termed an "auditor," "referee" or "committee."
The report of such a hearing sometimes is confined to the facts
which are found to have been established. In other cases it may
extend to a provisional decision of questions of law arising on
those facts. The ultimate decision of any question of law is
always for the court, and if it accepts the report it is its duty
to draw the proper legal conclusions from the facts established.
As to whether the report shall be accepted, and as to the legal
questions arising upon it, the parties have a right to be heard
in court. Improper or irregular conduct on the part of the
officer making the report may be shown as a cause for rejecting
it. If it is accepted the facts found generally stand as
conclusively established.
Equity causes are generally tried before a single judge, who
decides all questions both of fact and law, proceeding in the
same manner as in a common law cause in which a jury has been
waived.
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