The Bennington banner. [volume] (Bennington, Vt.) 1858-1894, 1888-03-22
sUPREME COURT METHODS.

criticism upon the method of trying
and deciding causes in the Vermont Su'
preme Court:
"There is a good deal of criticism
among the lawyers at the practice the
judges are adopting of taking cases
away'with them and rendering decisions
without consultation. In the old times
when the court was held at Newfane
the lawyers used to stay until the end
of the term, and await the decisions
which were made, except in the cases of
EXTREMIST difficulty while the judges
were altogether to compare views, and
both sides were fresh in mind. 1t was
a fine school for both the bench and bar,
and it was in these days that Vermont
decisions took the high rank in Ameri-
can jurisprudence. Now the court gets
together, hurries through the work, the
briefs in each case are given to one
Judge and they all rush off to catch the
first train. In Bennington county thi:
week four cases were heard in four
hours. and the court adjourned. 1t is
actually fact that the judge to whom
the decision or the preparing of the
opinion was left in one of the cases was
not present at all when one side of the
case was argued. 1t is needless to say
that the court cannot do itself justice in
this way. The result must inevitably be
deal of poor law, incomplete, one
sided, bearing the pecullarties, the bias
and the thought.habit of individual
rather than being the well balanced
judgment of the full court, While the
court nominally passes upon each opin-
ion, and doubtless the judges faithfully
intend to do so where they think there
is any need of it, the tendency must be
the preponderance, approaching almost
the authority, of the man who writes
the opinion. The others don't study the
question enough, and there is nothing
like the benefit that used to come from
these joint comparisons of views and
weighing of arguments together al
court. 1t approaches being one judge,
or a county court, instead of the SUI
preme court.
"But this is not the worst of it. The
decisions are made after the arguments
are forgotten. The briefs are there of
course, but the court requires them to be
brief skeleton outlines, and there all
necessary points and considerations in
the arguments in answers to the argu-
ments made by the other side, which
can only be advanced then-all of which
ought to weigh in the decision, but
which cannot unless it all remains IN
the memory of the one judge, who holds
the case for months perhaps, before
writing his opinion, and of the other
Judges, who will be apt to dismiss it all
from their minds as soon as ii is assigned
to single member. In short, if there
is any use of having lawyers to argue
the case at all, the present method is OBJ.
jectionable."
We do not understand that there is
anything especially new or peculiar in
the present methods of the court. Such
an exceptional case as the writing of the
decision by judge who did not hear all
the arguments, although he must have
had all the briefs, ought not to be cited
as evidence of generally leose practices.
1t is well remembered by the older
members of the bar that so long ago as
when Stephen Royce was Chief Justice
there was complaint that he carried
away cases and never wrote opinions in
them, merely filing with the clerk a
brief statement of the decision.
Afterwards the decisions in most of
the cases during term time, .and they
often worked half the night, after sitting
in court all day, to write out opinions.
After a week or two of such work every
member of the court was exhausted and
the most important and difficult cases
had to be taken away for more mature
study. 1t often requires one or two
weeks of close application to examine
the briefs and authorities and to write
an opinion in such cases. 1t can be
much better done under the. existing
practice than IN the hurry and weari-
ness of term time.
AS we understand it, the present prac
tice is this: The case is heard upon
printed briefs and oral arguments. Some
times what the lawyers say is helpful to
the court, but often their briefs are
clearer and better statement than they
make orally. However, the court has
both. One case after another is heard
during the day. the judges taking such
notes as they please, Usually the one
to whom it falls by rotation to write the
opinion takes fuller notes than the 9TH
ers.
In the evening they meet and compare
their views, beginning in each case with
the judge who is youngest in SERVICE
Here again the one who is to write the
opinion takes IS full notes as he can
After day and evening thus spent. the
judges are weary and ought not to be
expected to do any more.
Possibly an opinion written inmedi-
ately after the hearing and consultation
might he better in some respects than
one written later, if the judge we're in a
good condition to write, but if the prop
er care is taken in the preparation of
briefs, every point in the case and every
authority known to counsel, having a
bearing upon it, is carried away by the
judge, together with his notes of the ar
guments and the opinions of his breth-
rem, to be studied in the secluslon and
comfort of his home, when he is rested
and free from the confusion of ideas in
cident to the disposal of several causes
the same day. as happens In term time.
The judges have found by experience
that they can do far better work in this
way, although it spols jail their vaca-
tions aud leaves them no leisure. 1t &C
casionally happens that judge in thus
studying a case comes to different con.
clusion from the one reached in confer.
ence. In that case he prepares his opin.
ion and sends it his brethren, together
with his notes and statement of the
reasons for his new conclusion, and
thus the whole case is reviewed by the
triers. Who can doubt that by taking
such care they are more certain to reach
a correct conclusion, and that, by hav-