The Minneapolis journal. [volume] (Minneapolis, Minn.) 1888-1939, 1906-04-18

opinion OF the court to which the application
riage OF justice has been thereby occasioned on
the trial The same provision had already
Deen made IN regard to matters of pleading.
:, That simple provision has eliminated from
the trial courts and from the courts of appeal
an those fine points of practice which cause
the American trial courts often to resemble
a fight instead of investigation of the truth
sometimes they resemble quarrel rather than
these. small matters are unavailing anywhere
IN the courts Of the procedure, they are
), The cause at every stage is dealt with on
its merits. This fact breath from every
page OF the English reports at the present
seen the workings of the administration of
justice in the courts. that 1t is even more con-
splcuously present where one can the trial
What is the effect Of this change? First,
gentlemen, no cause has appeared for The see
more than thirty years. Such a thing is abso-
lutely unknown there at the present time.
British Statistics.
special master, who has, as part of his du.
the trial Of causes in the English S't courts S
tisties for the year 1907 Let me cali CALI atten n
ton to just one feature of it. During that
year Sss eases We're brought before the court
S39 were dismissed error being found in the
proceedings of the trial court; in thirty -four OF
modified and affirmed; in 1s2 of the cases. sub
stantial error was found in the proceedings of
the trial court in other words, it was found
that the Judgment was wrong. - 49, PEE So
Now. what hap pened? Were those 1s2 cases
tnnibled back upon the trial court to be thrasled
over again? Not at all. In only seven ont OF
am only speaking now Of the common law cases
was 1t necessary to send the case back to the
court upon the record before it, to enter the
Judgment which tile merits and justice of the
cause required
Now. is that impossible in America? l don t
think so. concede that it is impossible in
the federal courts, by reason of the seventh
amendment to the constitution. but no such
provision is found in the constitutions of the
states STATE In England the judicial force is less
Of ns and %e I'll that HeT udsa or Re
ministers justice in this satisfactory way for
nearly thirty millions Of people residing in
are brought from the remotest provinces of the
empire.
Exaltation of Error.
Gentlemen, what is the effect upon our profes
sion OF this eSaltation of error, and the applica
ton of this doctrine that where error is found
prejudice will be presumed? In the first place
1t puts every lawyer the quest for error In
so far as have been able to observe there are
two motives that animate each lawyer in the
trial of cause in our courts; first get a vic
tory if you can, but under no circumstances fail
to get error into the record in the case. II
these little matters are of equal Importance in
the court OF review with the substantial matter
of justice, then, of course, they must receive
in the eyes of the lawyer attention equal
with the substantial matters of justice. on the
hand to keep them out and on the other
to get them in. Because in the appellate court
if you can only get in. the coast is clear
the rest of it will all be done by presumption.
Now it has been one of the serious faults OF
the legal profession turnout its entire history
not only in America, but in England and il
Rome, and wherever legal systems have beer
built up, to exalt matters of practice above mat
fnre Of uhcf nj CO int oct
ing they lead us out into such delightful field
of uncertainty l have in mind now quite dis
tinguished lawyer who spent three months pre-
pairing himself to be properly surprised by al
adverse ruling question of pleading.
Now, know how those points look l hav'
been in practice. too. You get. one of them, AM
it is so accurate, it is we'll defined.
doesn't lie out in those regions of discretion
like matters of fact; and you will find lawyer
with one of those. nice points spending week
and months polishing 1t up and looking at l
so closely that really at the end of that tim
it looks to them bigger than Pixies Peak. ant
when the Judge at the trial simply brushes
aside he feels that the very pillars OF the rem
it often occurs that that little point Is all tina
he has, and when it is destroyed he is lei
| naked before his adversaries.
Method on English Bench.
judge best who keeps his hands off have hear
some of. you say that That Is not the metho
of the English judges to whom l refer. y'
were to step into an English court ana see
cause in the progress of trial, the one thin
that would impress YOU above all other tnmg
would be that the Judge and the LAWYERS are Al
bent on getting at the substance of that cause
The fact that has impressed me more In keepln
track of English decisions during the last TWEEN
ty years is this, the skill and the zeal VIII VIII
which the trial court and the trial counsel dis
play in putting the record in such shape ina
the cause may be disposed of in the appellat
| court on the merits, provided that the appellat
| court takes a different view of the controVers
from that taken by the trial court. - u,
What is the effect of this doctrine OF erro
upon the trial Judge? lnstead or having NJ
mind conferred upon the substantial merits OF tn
| cause. it will often happen that he IS s, Demil
| dered by multitude Of perplexing small ques
tions of practice in which the cause Is constant
Il remember talking with distinguished FED
| eral Judge in the west who few years ag
was travelling in England and was invited D
| Lord Bramwell TO take seat with him on IN
| bench while he was holding court in Mahcnestei
personal injury case was on s n1al If
formal but really substantial ana aecuiate 49, az
count of how the accident occurred Wneh Gounst
for the defendant arose ana on!ecteu 10 bi, "
Interfering with the trial of the cause
| 4 little later he thought the situation wa
| growing more serious and he arose asalh " ~ a
! an exception. Lord Bramwell informed MI
| that 1t was his duty to keep the trlal Oh ln
cause within the proper limits, and that ne eoi
/ sidered himself capable of discharglng IN
| duty A little later something more serious,
u tha Wind of the lawyer arose and he agai
| yentured to object. when he was sharpi! rep,
manded by the presiding judge and tolu 10 'a az
his seat and informed that II ne fe contepnt
! Now lord Bramwell was old at that time; an
! he was arbitrary. and l do not commend I'll
practice, but he did not forfeit bae
were engaged in the trial of that cause. IN. Inc
knew him to be, one OF the Sreate esq 1uu tsi
| saw that even his arbitrary methods were oI!ei
times to be preferred to the petty wranghn
| over small points OF se'iuehee 'n"' I0 -
| much of our time.
Rules-What Of Them?
But. gentlemen will say, If pc don't revers
| these cases for error. what will become OF OIL
rules; what will become of the rules. OF plea
| ing, and the rules of evidence. If We don t r
| verse these cases, and punish who! The III
giants, not the lawyers: Gentlemen that g.
| again and again in the courts of England b
tween 1920 to 1885, coming from the lips
b S wh Of e o the
rule of pleading: What. will become of II
rules of pleading if don't cast this case out
| court for missioner as to the plaintiff? VIII
will become of the rules of practice if don
l dismiss this case and send it back to be con
menced again, because the plaintiff has Gale
i it a suit in covenant, when he ought to hay
called it a suit on the case? Well they ha,
| gotten rid of all those rules and the a.
! ministration of Justice is much benefited.
| But we find a stronger light when we loo
at the practice in England. Today, and durir
this present generation. no error can be assigne
/ there on matters of practice or pleading
1 evidence, unless it goes to the foundation
/ the cause. Now what is the result? Are u
| rules of pleading thrown away in England
/ Are the rules of evidence disregarded In Il
courts of England? By no means 1t is Il
| testimony of all who are familiar with q
I practice in England that the rules o. pleadiI
! end the rules of evidence much better o
| served there than they are with US Ihere
/ much less of irrelevant evidence found In Il
record there than is found with us. The ruiz
4 of evidence are enforced there better thi