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REPORT

OF THE

COMMITTEE ON UNIFORM JUDICIAL PROCEDURE.

To the American Bar Association:

The Committee on Uniform Judicial Procedure respectfully reports:

Since the last meeting of the Association, such a strong and wholesome sentiment has manifested itself in favor of the American Bar Association's program for the modernization and uniformity of the procedure of the courts, as to justify tlie belief that there will be a full appreciation by Congress of the merits of the movement.

THE AMERICAN BAR ASSOCIATION'S PROGRAM. · A fixed program, which had been under consideration for several years, took final and definite form at the Boston meeting in 1910. A condition precedent to its actual achievement was suitable power in the Federal Supreme Court to prepare and put into effect a complete system of rules for the regulation of the nisi prius courts. This idea reflects the organic principle of a division of duties between the legislative and judicial departments of government. It involves the idea of court rules, as to details, and legislative control as to fundamental and jurisdictional matters and all questions of permanent procedure and evidence, the latter to be embraced in a short practice code. The result will be the lodging of the responsibility for operation by Congress with the courts. The fact is becoming very generally understood that, although the courts and lawyers are now solely held responsible for juridical defects, the Congress regulates their entire conduct; that the judge is often helpless to prevent injustice being done in his very presence; and the lawyer, by force of these rigid statutes, is compelled to take advantage of technicalities, for he may not draw a distinction between the adjective and substantive law.

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THE REASON FOR ITS POPULARITY. Other elements of the popularity of the American Bar Association's program are that form is sacrificed for principle and that the Supreme Court, which will be ready to hear from lawyers and judges practical suggestions as experience may develop them, can from time to time change the system of rules in response to the call of convenience or justice. Obviously, failure or delay in correcting abuses has done more to prejudice the laity against the courts and lawyers than any other juridical element. The test of any permanent institution is its ability to adapt itself promptly to changing conditions.

AN EXAMPLE OF UNSELFISH PATRIOTISM. The sentiment of the American Bar Association has been practically unanimous in support of this program and many earnest lawyers and judges are militantly pushing it. Forty-two State Bar Associations have endorsed it and many have special state committees working harmoniously with your committee. They have suppressed all pride of opinion and agreed to depart from long established customs and usages in the interest of the general welfare and, thereby, have made possible a new and wholesome era of judicial relations. It became manifest that the lawyers must modernize the machinery of the courts or it would be done by some less competent agency.

PROGRESS WITH CONGRESS. It appearing that the 63d Congress would adjourn immediately upon the completion of a legislative program upon which it had been almost uninterruptedly engaged, attention was given to preparation for the 64th Congress and to harmonizing other bills concerning the courts that were found to be pending. To that end a resolution (Senate Resolution 552) appended hereto, was adopted by the Senate, authorizing a sub-committee of the Judiciary Committee of the Senate to consider in vacation a composite bill passed by the House of Representatives in the last preceding session. (H. R. 15578.) Your committee will appear before this sub-committee for the purpose of impressing the principles underlying the American Bar Association's program. It is respectfully suggested that full authority be given this committee in the premises. It will serve a useful purpose to comment briefly on the bill (H. R. 15578) if, by that means, individual representations are caused to be made to members of Congress.

H. R. 15578.

Its title is “ An Act to Codify, Revise and Amend the Laws Relating to the Judiciary.” It is 206 pages long; is officially designated as “Judicial Code, Part 2," but will, no doubt, be popularly known as “The Practice Code," and should be so designated. It deals with the following subjects: 1. District Attorneys, Marshals, Clerks, Commissioners, and

Stenographers. 2. Pay and Allowances of Court Officers, Jurors and Wit

nesses. 3. Evidence. 4. Civil Procedure. 5. Criminal Procedure. 6. Procedure on Error and Appeal. 7. Judgments, Cost, and Executions. 8. Limitations. 9. Habeas Corpus. 10. Extradition.

SOME RECOMMENDATIONS.

It would not be practical to discuss in detail the features of so lengthy a bill. Admitting the necessity for a measure of its general character, certain alterations appeal so strongly that they are briefly mentioned :

SEC. 168. Omit the words “ By the said courts, respectively," and “ to any District Court.”

Reason. "Uniformity requires one general source of power. Special rules for special localities or conditions can be provided by the Supreme Court upon suitable representation in that behalf.

SEC. 169a. This section forbids the judge to sum up” the evidence and should be omitted.

SEC. 169b. Arbitrarily requires submission of all issues to the jury regardless of the state of the evidence and should be omitted.

Řeason. Permission is asked, however, to say that the judge ought to be empowered to save the time and expense caused by cases improvidently and improperly brought so as to prevent their going to the jury. Where the evidence is insufficient to support a verdict, the court of necessity would set it aside. It is therefore thought expedient to permit the judge to act before instead of after

submitting the case. This is the practice in North Carolina and New York.

SEC. 171. Omit entirely and substitute the American Bar Association's Bill, H. R. 133, a copy of which is attached hereto.

Reason. This bill has met with practically the unanimous support of the American Bar Association and of over 40 State Bar Associations, Its object is to vest in the Supreme Court the same power on the law side of the court that it now possesses on the equity side; to prepare and put into effect a correlated system of rules for the guidance of the trial courts and the detail machinery thereof. It is conceded that the effort at conformity with state practice (Sec. 914 R. S.) is a failure and has become a menace to the administration of justice. The legislative department should enact all statutes concerning jurisdictional and fundamental matters and matters of evidence and of permanent procedure, but the detail operation of the court should be regulated by rules prepared by the Supreme Court. The Supreme Court would amend these rules from time to time as occasion required without having to wait upon or to disturb Congress to enact a statute.

SEC. 180. Insert the words“ Provided by the Supreme Court" after the words, “ By general rules ” and before the words “ adopt such ” in the eleventh line.

Reason. These amendments make the section consistent with the general principle laid down in Sec. 171 requiring the Supreme Court to make all rules.

SEC. 181. Omit the words “ Of such District Court” and insert the word “ Such" just before the words“ general rules" in the twenty-third line. Omit the words“ by general rules ” in the twenty-fourth line and insert in lieu thereof the words “in the manner aforesaid.”

SEC. 183. Omit entirely. See comments on Sec. 171 and Sec. 180. Uniformity requires that there shall be a single power for making rules. Upon the necessity arising, the Supreme Court will make all necessary exceptions and it will prevent unnecessary exceptions. This involves the great principle upon which the American Bar Association is practically unanimous.

SEC. 186. Omit the words “ The Court may make," in the eleventh line and insert the words“ may be made” in the twelfth line, between the words “therein ” and “as."

Reason. These alterations harmonize these sections with Sec. 171 as to rule making power and yet leaves the trial court free to act by way of an order.” The statute does not forbid the exercise of this power by the court and it meets every requirement.

SEC. 189. Insert in line twelve, the word “ Supreme" between the words “ the ” and “ Court” and insert in the same line the words" by rule” between the word "direct" and the period.

Reason. This, for the reasons given above, harmonizes the entire statute.

SEC. 218. Change the word “four" in the twenty-sixth line, to “thirty"; and the word “months,” in the first line of page 127 to “ days ”; and add the words,provided, that nothing shall prevent such time being extended by the court or the Judge therof by an order duly entered of record for an additional period of sixty days for good and sufficient reasons to be incorporated in such order."

Reason. Litigants are justly complaining of the delay and expense occasioned by appeals. Sec. 218 aggravates this condition. Thirty days is the greatest sufficiency of time in which to prepare simple bills of exceptions. It must be borne in mind that additional time will still be required to make up the record. The amendment suggested serves two purposes, viz: (1) Counsel will be forced to act with reasonable promptness while the facts are yet fresh in the minds of the necessary participants. (2) It will force counsel, seeking a delay, to place upon the record his reasons therefor, thus permitting the responsibility to rest where it properly belongs. The legislative policy, as evidenced by Sec. 226 of H. R. 15578, is to hold counsel responsible in all proper instances. This is to be highly commended.

SEC. 219. Omit the words“ its rules,” in line eleven, page 128, and insert in place thereof the words “rules of court.”

Reason. This, for the reasons above named, brings it into harmony with the entire act.

SEC. 322. It is respectfully suggested that forty-two days is too long a time for the simple purpose of moving for a new trial. This ought to be done with the utmost speed, and the record should evidence reasons for any delay.

Memo. It is suggested that the act should be known as “The Practice Code " instead of " The Judiciary Bill, 2d Part."

Memo. Time and economy, in the order named, are among the most important of juridical elements. There is justification for the prediction that any effort at juridical reform not reflecting these fundamental principles will prove a failure; that any effort wholly omitting them will destroy the present weakened faith in the courts. The public, within the last few years, has been educated to expect speed and economy in the courts; that the judges are helplessly restricted by iron bound statutes and that relief can

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