THE LAW'S DELAYS
The right to be heard before judgment, the right to have judgment
rendered only on due process of law, and the right in most cases
to a jury trial, necessarily make the course of justice slower in
this country than it need be in one where there are no such
guaranties in favor of those against whom the aid of a court is
invoked. The plaintiff, too, has corresponding rights. It was
found not so easy by Frederick the Great to enforce his famous
decree that every lawsuit in his dominions must be finished in a
year. In a freer land no such result is possible.
The power of the judge to expedite trials is also much less in
the United States than in most countries. They must be had
mainly on oral testimony. The testimony must be so given that
thirteen different men may each understand it. What the
witnesses may be allowed to tell, and what they cannot be,
depends on the application of numerous and artificial rules of
evidence. If there is a question as to whether this rule or that
applies, the judges sometimes invite and generally allow a
discussion by counsel. Appeals are liberally conceded. If
exceptions to any ruling of the court are to be made the basis of
proceedings in error, they must be carefully noted at the time,
and afterwards made the subject of a lengthy set of papers.
Many trial judges are young men of little experience either on
the bench or at the bar. They are learning the law by
administering it. Such men cannot decide controverted points in
a moment, and shut off all unnecessary discussion in the manner
that might be expected and tolerated from judges of the first
rank. It is hardly probable that they will always come to the
right decision at last. Hence it is that so great a liberty of
appeal is granted in every American State.
Appeal means delay.[Footnote: See Chap. XIX.] A man is fortunate
whose appeal is heard within three months and decided within six.
Oftener he must expect to wait a year or two. During a long
course of years an appeal to the Supreme Court of the United
States could not be reached for argument in regular order in less
than three years after it was taken. In Nebraska, for some time
prior to 1901 the Supreme Court was so overwhelmed with business
that it could not hear a cause until five years after it was
docketed.
In 1882 a brakeman was injured on a New York railroad. He
brought suit against the company, and in 1884 recovered $4,000
damages. The judgment in 1886 was reversed on appeal. On a new
trial he got a verdict for $4,900. This was appealed to two
courts successively. The first affirmed and the second reversed
the judgment. In 1889, there was a third trial, at which the
company won. Two appeals by the brakeman followed. On the first
the intermediate appellate court, in 1894, decided against him.
On the second, in 1897, the court of last resort decided for him.
For the fourth time the case came on in the trial court, and a
verdict for $4,500 was recovered. The company appealed and with
success. A fifth trial gave him a verdict for $4,900. This,
too, was set aside on appeal. A sixth trial followed with
exactly the same results. In 1902, the seventh and final trial
took place. The verdict this time was for $4,500. The company
appealed again, but was defeated.[Footnote: Case and Comment, X,
50.] A lawsuit that embraces seven appeals and lasts for twenty
years is, of course, a rarity, but the system of administrative
justice under which such things are possible is faulty somewhere.
The right of trial by jury is one cause of such delays. The
broad right of appeal is another. The want of skill and
experience on the part of trial judges and trial lawyers may be a
third. The twenty-three English judges of the High Court of
Justice (with the aid of masters in chancery and referees)
actually try and determine about fifty-six hundred cases a
year.[Footnote: This was the average number for each of the years
1900 and 1901.] Each judge, therefore, on the average,
dispatches over two hundred and forty. No American judges under
our American system of practice could do as much and do it well.
We tolerate a succession of motions and objections and arguments
from the bar which English courts would not. We often take more
time in impanelling a jury than they would in trying the case.
The American bar, unlike the English, is not so constituted that
a certain number of its members are professedly devoted in a
special way to the trial of cases. The English barrister in
active practice may almost be said to do nothing else. His
standing and his income depend on his ability to try case after
case in rapid succession. Others are responsible for their slow
and careful preparation. He is responsible for their quick and
effective dispatch when the preparation is ended. He becomes
necessarily familiar with the _technique_ of a trial at
every point. In examining a witness, he strikes directly at what
is material, and would be ashamed to appear ignorant of what that
is. In argument he stops when he is through. The ordinary
American lawyer who tries a case to-day, draws papers
constituting a partnership or a corporation the next, and
prepares an opinion on the construction of a will the day after,
has not that concentration of knowledge which comes from
concentration of occupation.
The art of making a clear and definite statement of the points in
controversy on paper is also one not sufficiently cultivated by
the American bar. Without it the system of "code pleading,"
which has in most States supplanted the rigid and often
meaningless forms of the common law, leads to confusion and
obscurity. The claims of each party ought to be, but seldom are,
so presented that matters of law are, so far as possible, kept
distinct from matters of fact, and what he means to prove is set
forth, but not the evidence by which he hopes to establish it.
This looseness of pleading leads to endless motions to expunge
this and correct that, and time of the court is taken up by the
preliminaries of trials which, if the lawyers used more care or
had more skill, would be devoted to the trials themselves. Still
worse is it when such motions are postponed until the case comes
on for final hearing, and witnesses and juries are compelled to
wait during tedious arguments over questions of mere form.
In our great centers of population business under these
circumstances almost necessarily accumulates too fast for the
courts to handle it.
In bringing on criminal trials there is little delay, unless at
the request of the accused, and for what seems good reason. Our
Constitutions generally provide that whoever is to be tried on a
criminal charge shall be tried promptly, and the practice of the
courts conforms to this rule. The broad right of appeal,
however, for errors of law on the part of the court may serve to
postpone the execution of a sentence, and too many new trials are
granted by the courts for steps in procedure in matters of a
purely technical character. Delays from this cause are, however,
comparatively infrequent. Most convicts are too poor to take
advantage of it. Most also know that their sentence is just, and
are anxious only to have it executed and through with as soon as
possible. In hardly one case in a hundred is an appeal taken or,
if taken, pursued to the end.[Footnote: See Chap. XVII.]
In our largest cities the disposition of criminal business
occupies the time of several judges, and the prosecuting officer
has a staff of professional assistants. In cases of such
importance as to call for his personal management a postponement
is occasionally inevitable. In Chicago, in December, 1903, over
a thousand cases were awaiting trial in the Criminal Court.
It tends to expedition in the trial of any cause if it is heard
before a judge especially familiar with the class of questions
which it involves. Criminal courts, particularly in cities, are
largely held by judges whose work is either wholly or mainly
confined to them. This helps greatly to prevent delays in such
tribunals. For a similar cause admiralty business is dispatched
with great rapidity by the District Judges at our principal
ports, and patent causes by the Circuit Courts.
In the criminal courts of New York City in 1903, there were about
3,000 prosecutions on which indictments were found, and the
defendant committed for want of bail. In most of these cases
there was a plea of guilty, but counting them with the others,
the average time as to all which elapsed between the original
arrest and the final judgment was only eight days. During the
same time those who gave bail were generally tried within three
months from their arrest.[Footnote: Nathan A. Smyth in the
Harvard Law Review for March, 1904.]
An insufficiency of judges was formerly one great cause of delay,
but the modern tendency has been to have too many, rather than
too few. In the Court of Chancery in Virginia (which was held by
a single Chancellor, then a man seventy-six years old) there were
in 1802, 2,627 causes pending at one term.
In the city of New York a jury trial in civil causes cannot
ordinarily be reached until two years after they are brought. In
its principal trial court between four and five thousand cases
are annually disposed of, and in 1903, there were nearly ten
thousand on its docket. When the criminal courts in the borough
of Manhattan--the greatest division of the city--were opened in
October of that year, there were nearly five hundred different
prosecutions to be disposed of, and a hundred and sixty-seven
prisoners awaiting trial who had been unable to procure bail.
In the county containing the city of Chicago (and which contains
little else), there were in 1903 twenty thousand civil cases on
the dockets of the courts. This mass of business it would
require more than two years and a half to dispose of with the
number of judges then provided, were no new suits instituted to
divide their attention.
A very large part of the cases tried to the jury are claims for
damages for accidental injuries received by employees in the
course of their service. In the county in Missouri including
Kansas City there were, in December, 1903, over fifty-one hundred
civil causes on the dockets of the various courts. The
population of the county was less than two hundred thousand.
About three-fourths of the cases were against corporations for
injuries received by their employees. The defendant in such an
action is generally in no hurry to bring it to trial. The
plaintiff often is not. He may have a weak case, brought in the
hope of forcing a settlement. He has probably no money to pay
his lawyer for trying it, and finds it hard to get together what
is necessary to summon his witnesses and provide expert testimony
as to the nature of his injuries.
Whenever it is tried, however, he is sure to want a jury, for if
the case is a good one a jury is apt to give larger damages than
a judge, and if a bad one a jury is less likely to appreciate its
weakness.[Footnote: McCloskey _v._ Bell's Gap R. R. Co., 156
Pennsylvania State Reports, 254; 27 Atlantic Reporter, 246.] A
jury trial is much slower than a trial before a judge, although
the decision is apt to come more quickly. It also facilitates
appeals by necessarily presenting more occasions for error. A
judge in trying a cause, if evidence of doubtful competency is
offered, can admit it provisionally and exclude it afterwards if,
on deliberation, he thinks that it should not be considered.
With a jury this is impossible. There must be an immediate
ruling one way or the other. In the charge to a jury, also,
opportunities are offered for exceptions which do not exist if
the cause is to be decided by the judge alone. He does not have
to instruct himself in public. He can study the case in private
at his leisure.
A cause of delay formerly existed in several States which arose
from the method of computing the costs taxable against the losing
party. They included, by statute, a certain sum, say twenty-five
or thirty-three cents a day for each day's attendance at court by
the prevailing party. This was construed to mean each day during
which the action lay in court, since upon any of them it might by
possibility be called up, and the client was always represented
by his attorney of record, a notice to whom was a notice to him.
Christian Roselius, one of the leaders of the New Orleans bar in
the nineteenth century, once said that he had spent a fourth of
his life in the court house waiting for his cases to be called.
The lawyers, as the duty of attendance fell on them, generally
considered this allowance as their perquisite. An attorney with
a large docket received, therefore, a number of dollars for every
day the court sat, and the longer the term lasted or the more
terms to which a cause was carried over, the larger was his gain
if his client ultimately obtained judgment, and the defendant was
of financial responsibility. This system was not universally
discontinued until the last quarter of the nineteenth century.
A few States, by statute or constitutional provision, set a
certain time within which a decision must be rendered after the
trial. California gives ninety days; Idaho (Const., Art. V.,
Sec. 17) thirty. A sanction for the law sometimes provided is
that the judge cannot draw his salary until he has made oath that
he is in no default.
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