Page images

The Chairman :
Is the Nominating Committee ready to report?

Judge Robinson:

The Committee on Nominations make the following report: For Chairman of this Judicial Section, Orrin N. Carter, of the Supreme Court of Illinois; for Secretary, Gaylord Lee Clark, of Maryland; for members of the Executive Committee, Arthur P. Rugg, Chief Justice of the Massachusetts Supreme Judicial Court; Frank S. Dietrich, U. S. District Judge of Idaho; Thomas C. McClellan, Judge Supreme Court of Alabama; and William C. Hook, Judge U. S. Circuit Court of Appeals of Leavenworth, Kansas. I move the adoption of the report.

The motion was carried and the officers named in the report duly elected.

The Chairman :

Permit me to say, as I said to the committee, I am not anxious to continue in this place. The duties of this position are not easy and take much time. I consented to remain in the present position for the coming year because of my interest in this Section, thinking that perhaps one who was somewhat familiar with this work would be better prepared to carry it on. The success of this Section thus far has been due as much to the hearty co-operation of all who have attended as to the efforts of any one individual. I wish to thank you all for the appreciation you have shown of my efforts and of what the Section has been doing.

We are now ready for the discussion of the day. I know it will be very helpful as well as very interesting. The subject is :

Uniformity in Practice and Procedure; is it desirable; if so how best secured; shall courts or legislatures frame the rules ? "

This is not to be a debate, but a discussion, each speaker giving his own views in his own way. The discussion will be opened by Frank S. Dietrich, United States District Judge, of Idaho.

Judge Frank S. Dietrich :

If the discussion is not to be at cross-purposes, I am convinced there is need of an express understanding of the scope of the question and a definition of some of its terms. The proposal is to establish the same system of practice throughout the United States in all the courts, both federal and state; whatever or wherever the tribunal, the procedure is to be the same. This is to be brought about not by a process of gradual assimilation, but by the adoption of a complete formal code. When we remember that there are approximately fifty jurisdictions governmentally independent of each other, with systems of considerable diversity, the magnitude of the undertaking challenges attention.

By the term “procedure," as I understand it, is meant the rules by which controversies are brought into court, the facts uncovered, and justice done. I further assume that it does not extend to certain subjects which, while pertaining to the remedy, and sometimes treated of in codes of procedure, possess so many of the characteristics of substantive law that they must be considered in a class by themselves. Such, for example, are statutes of limitation, statutes of frauds, and statutes providing for exemptions, fixing periods of redemption from judicial sale, and establishing provisional remedies. Those who have been most active in promoting interest in the subject apparently hold the view that a court or commission may, and probably should, be clothed with the power to devise and authoritatively promulgate the system, but it is not to be supposed that anyone thinks that Congress or the legislature of any state would, even if it could, abdicate its constitutional functions to the extent of committing matters of this character to the discretion of independent, non-legislative bodies. We may therefore exclude them from present consideration. The question of desirability, I take it, involves as well the question of practicability. That in theory uniformity is desirable would generally be conceded; upon that point there is perhaps little room for discussion. But we are not here as a body of dreamers or theorists to consider abstract ideals; we are interested in the practical improvement of the administration of a branch of government, for which we are in a measure responsible.

Now with this understanding of the question, the pertinent inquiries are: Why uniformity rather than diversity? Who are

to be relieved, and what are they to be relieved from? Who are to be benefited, and what is to be the benefit? Unless we are seeking change for its own sake, or are content to appeal to the prevalent spirit of restlessness, or to some vague, unreasoning sentiment, the question must be squarely met. Presumably somewhere there has been set forth a fairly comprehensive statement of the reasons for the undertaking and of the benefits which it is supposed will follow its successful consummation, but unhappily, if there be one, it has escaped my attention. Such brief discussions as have fallen under my observation have to do largely with one branch of the subject, and, aside from the citation of what appear to be testimonials from certain individuals and the favorable resolutions of certain organizations, consist in the main of general assumptions, one of which is that there is some causal relation between the existing diversity of practice and certain prevalent defects in our present method of administering justice. It is doubtless easy enough to procure for the proposition a measure of popular approval. Any proposal sounding in uniformity is assured of a favorable first hearing; the idea is in accord with our growing sense of national unity. The impulse of a variable sentiment, however, is insufficient for the sustained effort which unquestionably will be required before even the most sanguine can hope for success. We must be prepared to show not only that uniformity is ideally desirable, but that it is feasible and that it will be beneficial in certain concrete and substantial particulars.

Now as best we can suppose we attempt to analyze the question and set down rather plainly what may be said both for and against it. This method will not admit of an appeal to the emotions or the imagination, but it has the virtue of putting safety first; we can keep our feet upon the ground.

There are two general classes interested in legal procedure those who participate in the administration of justice, and those for whom it is administered; in one class the lawyer and the judge, the litigant in the other. They are both concerned, although in different ways, and the interests of both are entitled to consideration.

Such benefits as would accrue to the Bench and Bar may quite readily be ascertained and pointed out. Those judges and lawyers whose employment or official duties bring them into contact with the practice of more than one jurisdiction would be relieved from the necessity of acquainting themselves with two or more systems of procedure; thus far and no farther does what we may call the strictly professional interest extend. The weight of the consideration depends largely upon the proportionate number of those who would be affected. Speaking first of the judiciary, it is manifest that the matter little concerns the state Bench, either trial or appellate. Generally speaking, state judges have to do exclusively with the practice of their own state, and whether that is like or unlike the practice in other jurisdictions is to them a matter of indifference. On the other hand it must be admitted that with uniformity the duties of the federal Bench would to a certain extent be rendered less onerous. Appellate judges are under the necessity of considering questions coming up from different states, and district judges are not infrequently assigned for service in districts other than their own. However, if I may be permitted to draw upon my own personal experience and observation, I am inclined to think that the burden imposed is not a very weighty one. And, besides, is it not possible that the waste thus entailed is fully compensated by the opposing influence of such a condition to the natural tendency to over-refinement in matters of procedure? A struggle now and then by an occupant of the Bench with an intricate question of foreign practice is calculated to check any inclination he may have toward pedantry of procedural learning and to broaden his sympathy for the litigant whom he is asked to send away empty-handed without a hearing upon the merits because of the inadvertence or want of experience of the attorney to whom he has confided his cause.

Turning now to the Bar, it is manifest that diversity is objectionable to those lawyers who practise in more than one jurisdiction; to all others it is of no professional interest. Unfortunately statistics are wanting on the subject, but from general observation it is safe to estimate the percentage of those who regularly practise in two or more states as being comparatively small. In commercial centers near state boundary lines a considerable number may have such a clientage, or such a class of business, as to require their frequent attendance on the courts of both of the adjoining states, but on the whole it is thought that such a practice is exceptional rather than usual. Perhaps the most conspicuous cases are those of attorneys employed in the Department of Justice at Washington and the counsel for railway companies and other interstate corporations. Of most of these it is to be said, however, that while diversity of practice in the several states to which their duties pertain doubtless adds to the difficulty of their service, the burden is after all not so great as it might seem. It is customary to have attorneys in the several jurisdictions who, subject to the supervision of general counsel, are expected to handle local litigation. The United States district attorney thus acts for the Department of Justice, and the railroads have a divisional representative under one title or another in nearly every jurisdiction. Even were there uniformity of procedure, the continued maintenance of legal systems of substantially the same character would doubtless be deemed to be judicious, if not absolutely necessary. Knowledge of local conditions, which only resident attorneys can have; of the personal characteristics of witnesses, jurors and judges, and even of opposing counsel, is often of great value in the trial of cases. Moreover, the practice of employing attorneys from distant points to conduct litigation is not, generally speaking, conducive to the prompt administration of justice, and as a rule is not to be encouraged. In the nature of things, with counsel residing at a great distance from the place where court is held, more time is consumed in serving notices and procuring appearances, and the court is beset with more requests for indulgence, and for relief from conflicting engagements. In short, without further amplifying the reasons, I am convinced that, whether we have diversity or uniformity of procedure, generally litigants must, both for their own good and for the good of the court, have the service of counsel of the vicinage, and therefore, from a professional standpoint, diversity of practice is a comparatively unimportant consideration, and it is to be doubted whether at the Bar there is any general consciousness of the need of the proposed reform.

It is but fair to add, before leaving this branch of the subject, that manifestly uniformity would be of substantial, though temporary, benefit to the lawyer in preparation and the lawyer uncertain of location; and law schools would be enabled to furnish a more thorough training in pleading and practice. To them, therefore, uniformity would mean a distinct gain. The degree of the

« PreviousContinue »