Earl Warren: Number 32, Howard Farmer, Petitioner, versus Arabian-American Oil Company, and Number 33, Arabian-American Oil Company versus Howard Farmer. Mr. Nulman you may continue you argument.
Kalman I. Nulman: Mr. Chief Justice, may it please the Court. First may I say, I'm afraid that I didn't fully get the import of the question that Mr. Justice Goldberg asked me yesterday nor that did I as fully answered the question of Mr. Justice Harlan as I should have liked. And I hope that I may be permitted in the course of my argument to return to both of these matters. At the conclusion of yesterday's session, I had come to the point where following a dismissal of the plaintiff's complaint after first jury trial and a reversal and remand by the Court of Appeals, there had been an application made to require the plaintiff to furnish a bond for security of costs which was granted. And a bond of $10,000 required first modified to $6000 and that was followed by dismissal of plaintiff's complaint for failure to furnish the bond which resulted in a second appeal to the Court of Appeals. That court reversed holding that the requirement for the furnishing of the bond had the effect of depriving the plaintiff of his day in court. And in the course of its opinion the court volunteered to grant a pointed observations concerning what it described as the expansive way of trying the case which had been followed by the defendant. And it referred particularly to the bringing of witnesses from Saudi Arabia. And Judge Clark, the late Judge Clark, speaking for the unanimous court indicated very plainly that the -- that in the circumstances of this case having in mind the various factors such as the amount involved and the condition of the parties, the plaintiff, that resort could have been had and should have been had to the deposition procedures prescribed by the rules. Thereafter, a second trial was had before Judge Weinfeld, the jury in the course of its long deliberations returned and reported it was unable to agree and after some additional instructions from the court returned, deliberated further, and returned a verdict for the defendant.
Earl Warren: How much was the first bond required?
Kalman I. Nulman: The first was $10,000 and the -- we applied for reargument and the District Judge reduced it to $6000 and we had made proof which the Court of Appeals considered sufficient that we were unable to furnish either such bond.
Earl Warren: I see.
Kalman I. Nulman: Following the second dismissal, the defendant tax costs at the clerk -- with the clerk and these costs in the first instance amounted to $11,900. We applied for review and in due course, the second trial judge after deliberation lasting nine months rendered an opinion and decision wherein he reduced the -- by -- the costs to the sum of some $800. And in the course of this opinion, Judge Weinfeld made reference first to the Court of Appeals' decision and its scriptures on the methods of trying the case followed by the defendant, made his own observation as to the free and easy method adopted by the defendant and that's the language of the judge. And as an instance of the free and easy method followed by the defendant, he gave the illustration of an argument of a motion for summary judgment about a year prior to the first trial. The defendant had, without any request of the court or any indication by the court that it desired a transcript of the minutes, had ordered the minutes of that hearing and attached the cost of those minutes against the plaintiff at the first trial. I might say that the costs of the first trial were taxed and reviewed while our appeal was before the Court of Appeals and we had already served and filed our brief. The first trial judge declined to stay the taxation but the Court of Appeals, on our application, did so. Now Judge Weinfeld --
Speaker: -- of the record?
Kalman I. Nulman: I beg your pardon?
Speaker: Page of the record.
Kalman I. Nulman: It was two volumes of several thousands of pages, and fortunately for us the defendant had ordered those minutes and had filed them in the office of the clerk. That is, the stenographer had filed his copy in the office of the clerk and we made extracts from that record and the actual printed record of the appeal amounted to some 60 pages and was this size. That is to say without the appendix, it was 50 pages and there were an additional 74 printed pages for our principal brief and half again as much for our reply brief, and that was the extent of the printed record. As for the actual court record, the -- it was extremely voluminous and the volume ran to, I think and I hope I'm not in error, 1200 to 1300 pages, that was the first trial. And in that regard, I might -- for the information that the court say that the plaintiff who was the only live witness called in his behalf took up just the smallest part of that on his own direct examination. His cross-examination consumed twice the extent of his -- it's direct and the balance were taken up with the witnesses called by the defendant. Now Judge Weinfeld said that here was an instance of the free and easy approach to litigation followed by the defendant who ordered the minutes of the argument of the motion without any request from the court or any indication that the court desired its use. And the cost of those minutes was taxed by the first trial judge without any reference to the actual judge who had heard the motion as to its necessity. Now in our brief we call attention to that portion of Judge Weinfeld's decision and the defendant replied that the first trial judge had considered those minutes as necessary and included a quotation from the first trial's judge's decision which referred to three pretrial hearings. While these pretrial hearings had no reference to these particular minutes as I pointed out last night, and they refer to three separate pretrial hearings at which the minutes were taken and for which costs were taxed. Now, in addition to that, the trial -- the second trial judge stated that in bringing this suit the plaintiff acted in good faith and that in determining whether or not live witnesses should be brought from far off places, the rule laid down by the Court of Appeals in an opinion written by Mr. Justice -- then Judge Harlan, that the condition of the respected parties should be taken into accounts as well as the magnitude of the matters involved and the subject of the action. And that in his opinion, the magnitude and subject of the action didn't require it, and he said further it well may be that the various procedures followed by the defendant served its convenience as well as that of its counsel but that they were not necessary within the meaning of the statute. And to impose a staggering burden of this kind upon a defeated litigant in this situation of this plaintiff could well have the effect of closing the courts to a great many litigants. The language is my own but the sentiment was that of the judge. Before the second trial judge, the defendant argued that it should follow the previous determination of the first judge as a matter of comity and as a matter of orderly procedure but he declined to do so. An appeal was taken to the Court of Appeals and we opposed the appeal on the ground, first that the appeal involved only the matter of costs and that the costs have been determined in the discretion of the court and that under these conditions, under the rule laid down by this Court that was not appealable. Now, I might say that in that appeal, the defendant did not urge that there had been an abuse of discretion nor did it urge that the failure to follow the first judge's determination was erroneous as a matter of law. It merely contended that the first judge's determination should have been followed. Following the argument and submission of that appeal, the appellate court apparently divided two to one in favor of affirmance, that is Judges Hayes and Smith voted for affirmance, and the Chief Judge voted for reversal. And they thought that the importance of the subject required that the entire court be convened en banc and that was done and the court in a five to four division voted to reverse. The Chief Judge, Judges Moore, Judge Friendly, Judge Kaufman and Judge Marshall voted with the majority. Judge Smith wrote a dissenting opinion in which Judge Hayes and Judge Clark concurred. Judge Clark wrote a separate concurring opinion and Judge Waterman wrote an opinion of his own. Now I'll state Judge Waterman's position first. He believed that the determination should be affirmed, but unlike both the majority and the minority, he was of the opinion that the District Judge should be left with discretion to determine whether or not in a given case the exigencies of that particular case did not require that costs in a greater amount than those prescribed by the rule or those limited by the 100-mile limitation should not be granted. Now as to that, I should like to comment first that I feel that the right of access to the court is so vital and so important and that it is a right and not a privilege that it should not be left for the determination of some individual judge, in some circumstances we know nothing about, but which we can imagine from this very case as to whether a litigant would be permitted to litigate. We think he -- every litigant, every person and every citizen is entitled to litigate as a matter of right and not by reason of judicial favor. So, I get back to the majority view. The majority first commented on our contention that this was not appealable. And they said that they believed that since the enactment of these particular rules which gave the District Judge discretion as to whether or not costs should be taxed, the rule previously laid down by this Court to the effect that of judgments for costs alone where the question of discretion alone was involved was no longer valid. Well, what the majority overlooked was that the rule laid down by this Court was so laid down precisely because the District Judge had discretion. And they said that because the District Court had discretion, a judgment for costs alone was not appealable. However, that determination and this is the part of the answer that I feel I should've given Mr. Justice Goldberg yesterday. That determination isn't -- I'm afraid before this Court although I've included it as one of the questions, in the thought that if this Court wished to make any comment on the subject it would be in the record. It's not before the Court because that determination was not essential to the holding of the Court of Appeals. The Court of Appeals having put its granting of the right to appeal on a totally different ground namely that the failure of the second judge to follow the holding of the first judge was erroneous as a matter of law, and that it was that disregard of the law which gave the defendant the right to appeal. Therefore, the question as to whether a purely discretionary determination as to cost was appealable or not, or whether the rule laid down by this Court was or was not valid while they passed upon it, it was pure dicta so far as this determination was concerned. And it's for that reason Your Honor that I said yesterday that the determination of the Court of Appeals put the case in a different posture altogether. And I can't come here and say that they should never have been given the right to appeal because costs alone were involved, because the Court of Appeals said “Well, cost alone weren't involved. The requirement of law is that you must follow the decision of the first judge.” And having violated that rule of law there here is a matter of right. Now, I get to the point and this is where I should have answered Mr. Justice Goldberg's answer -- question in the affirmative. It's perfectly true that if this Court should hold that the Court of Appeals erred in determining that as a matter of law that a second judge was bound to follow the ruling of the first judge, there need be no further determination as to what we considered to be the main question of this appeal. And I was so obsessed, I must tell you, with the thought of the importance of this question that I merrily in my own mind disregarded the other. And I hope that this is a more satisfactory answer than the one I gave yesterday. Now, as to the question put by Mr. Justice Harlan, in the various decisions and there have been many and various decision with many and various reasons given as to why the 100-mile limitation should or should not be followed. The one that seemed to me to make the most sense and the one that came closer to the heart and core of this whole matter was one in Michigan in 1888 by District Court Judge in the case of Vernan which is cited in one of the opinions in the Court of Appeals. And if I may just read that, it explains so exactly what my thought was. He said, “I see no reason why he” referring to the litigant, “might not procure the attendance of an important witness from California or even Australia or other remote quarter of the globe and practically ruin the opposite party by the accumulation of costs”. And it was for that reason that that particular court adhered to the 100-mile limitation. But I must say that none of these cases follow any routine or any pattern except the latter of the cases which have fallen into a pattern. And each of the cases which might be considered to have formulated the rule, all appear to me to have been decided on an ad hoc basis. It depended on the equities of the particular situation, and it was in that fashion that the rule evolved. And I have made no effort in our brief to improve upon the reasons given in the dissenting opinions below as to the justifications of the rule. First, it would be presumptuous and it would be supererogation and frankly, I myself see no logic in the rule. And to me it's more important that there is such rule than to find a reason for it any more than I would find a reason for the 100-mile limitation prescribed by this Court in admiralty. Now the point that I come to now deals with the requirement that in exercising his discretion under the rule as to whether to grant or withhold cost, a judge is bound to take into consideration the views expressed by another judge. It seems to me that in the very nature of a discretion conferred upon a judge, it's an impossibility to say to a judge, “You may exercise your discretion provided you give weight to views expressed by other judges”. Discretion isn't given by withholding it at the time that you're given it. Secondly, the reason that was given seemed to me not to be a very valid reason and the Court said with great concern for the sensitivity of the judge affected and for his views that they thought that it was not altogether proper to affront a judge by disregarding his views and having another judge come to a different conclusion. Well, it seems to me that by the time a judge has ascended the bench, he has become pretty well accustomed to contrariety of opinion. If he hasn't, by virtue of his practice and by virtue of his encounter with his adversaries in the courts, he has in many, many ways. And once he ascends the bench, he encounters contrariety of opinion from at least 50% of the lawyers who appear before him. True, he has the ascendancy but every time appellate court speaks, he is subjected to the trauma of contrariety of opinion. And if he happens to be a married man, and is fortunate in having teenage children, he encounters it at home every day of his life. And if I may borrow an expression of Samuel Johnson's in his essay on hope, and he said concerning Addison if contrariety could poison a politician, he would not live a single day. And so I say if contrariety could poison a judge, he would not live a single day. So to say that a judge may not exercise the discretion conferred upon him by law for fear of giving offense to another judge who is previously expressed an opinion just -- it doesn't conform to the realities of the situation and offers no justification for the denial of justice to the litigant who may be affected. And more important than that, the second judge in this particular case had the advantage in deciding whether to grant or withhold costs of having an expression by the Court of Appeals on the manner of trying this case in various other factors. And the discretion conferred by the statute should be given as the situation stands right up to the moment of the exercise of discretion and should not permit the dead hand of some prior determination made under other circumstances to control his conscience. So, I say that the rule isn't a good one. It could lead only to confusion. And in this particular case it shows the extent to which it can confuse when the Court of Appeals while holding that the second trial judge was bound to follow the first trial judge, held at the same time that a good portion of the first trial judge's determination was erroneous and it reversed that portion of it. So, I think Your Honors that this is a rule that's so important that so vitally affects litigants particularly those who don't have great means that clarification of the rule for the guidance of all of the circuits should be made. And I believe it should be made in the manner proposed by the minority below. Now, the next point that I come to is the point that we consider that -- I should like just to say about that that the controverted points that the Court of Appeals held was erroneous was that when application was made for re-taxation before the first judge, we pointed out that certain seats on the company owned planes had been unoccupied at the same time that these witnesses were brought in. And the court suspended his decision as to that portion of the costs and asked for proof under ought as to whether or not first it was company plane, secondly whether they were regularly run trips or whether they will run specially to accommodate these witnesses, and whether they would've been empty seats anyway of these -- to these persons had not occupied them. And when the proof was furnished by the defendants and it proved that these were regularly scheduled runs which would've run regardless that if these witnesses had not occupied them, those seats would have remained empty. To our great surprise he nevertheless made the award and held that because the defendants accounting procedures were perfectly correct and proper that he should make the allowance. Now, the second point that I come to and that we consider the really important point is the amount of costs that were taxed here and the great danger that would result to this country and to its citizens if some curb were not put upon the taxing of cost. We have said and the defendant has not controverted, that if the limitation were removed as proposed by the court below, the costs would be enlarged to such an amount as to close the doors of our courthouse to a large numbers of our citizens. That has not been controverted. We have appended some summary showing the earnings of the citizenry of this country and there has been no mention made of this chart nor of the conclusion that we draw from it by the defendant. And they -- I don't know whether they intend to argue the matter but their briefs had not discussed the subject at all. Now --
Earl Warren: Let me just (Inaudible) as to why depositions would not serve the purpose?
Kalman I. Nulman: No sir. The -- in that -- no testimony was taken and I 'am not aware that anybody ever called upon the defendant to state whether or not they would suffice. The -- as Judge Clark pointed out in his declaring opinion, not withstanding the very pointed reference made by the Court of Appeals in its second opinion as to the -- first termed expensive and then expect -- expansive way of trying the case. The defendant heedless of that went ahead and proceeded again to bring the witnesses. Now, it's not --
Earl Warren: You don't know whether it's important here or not, but did the plaintiff know that before the first trial, that they were bringing these witnesses here and intended to tax them as cost?
Kalman I. Nulman: We weren't sure until shortly before the trial as to who would be brought. As to their intending to tax them for costs, we had no idea about it. We had thought that the costs would be limited pretty much as they were in the state court. And we had a great deal of difficulty, as a matter of fact, in examining the defendant's witnesses. We deferred to the convenience of the defendant and exceeded to their request for numerous adjournments. One day, we were told that we could examine a particular witness but that we would have to examine him that day and conclude his examination that day because he was going back to Saudi Arabia. We had to drop everything that we were doing and sit down and spent an entire day without respite. Examined great numbers of documents and that was the end of that, off they went. Now, I might say and I know that this is a subject that's not appropriate in this Court, I could have had the occasion arisen demonstrated that there was no need for many of the witnesses. The defendant staged what I only could describe as an extravaganza, complete with pretty ladies in uniform. And finally just give one illustration of what I mean. I will have to refer again to the facts. The defendant did not for two years -- for approximately two years after the commencement of trial assert a defense of justification for this charge. It had examined the plaintiff at the very outset of the case and had elicited certain facts upon which it later predicated its defense of justification, but for two years it never moved to include that as a defense. Now what did that defense consisted? The defendant had a rule at its hospital in Saudi Arabia that before any surgical operation, certain preoperative procedures should be followed, the taking of a blood count and a blood -- and a urine analysis. Now the physician or the surgeon performing the surgery had no responsibility for the taking of these preoperative tests. That was prescribed. There was a staff set up to do it, they did it as automatically as anything else could be done. And in the particular instant, I am talking about these preoperative procedures were taken and the results were negative, that is to say they proved satisfactory for the operation. The doctor in his examination was asked whether he had taken these procedures and he said truthfully he had not. And then thinking to justify the failure to take them, his failure to take them, he went on to say they were unnecessary. The fact of the matter was these procedures as I said were taken and proved negative. Now the doctor had said he had never seen a written rule requiring such procedures and that same statement was made in the examination before trial and at trial by the doctor's superior, the head of the particular medical installation who said he also had never seen a written rule to that effect. Now out of the doctor's statement, our client's statement that he has never seen such rule, they called medical experts to prove the terrible consequences that comes from not following such rule. They called the head of a former -- of a hospital at which the plaintiff had formally been employed to say that while in that hospital many years earlier, the plaintiff had acknowledged receipt of a set of rules which included such rule. Well, the validity or the usefulness of such a rule wasn't in controversy nor did we challenged the necessity for the preoperative procedures prescribed and yet from the witnesses that were called it was made to appear as if we opposed all procedures, we were against them, that we charged ahead and didn't do them and the narrow issue that was in this case was whether the doctor had been orally informed of the results of these procedures before commencing the operation. And on that narrow issue, they justified the calling of all manner of witnesses and I think (Inaudible) -- I think that their necessity really was conjured up in the minds of the defendant but a rich and resourceful defendant can justify the necessity to most anything if he thinks it will help win the lawsuit. I see my time is approaching -- the end of my time is approaching. I regret that I haven't had a chance to conclude it but I think that the justice of the point we make, namely that in a country where all of us are subordinate to the laws, the executive, the judiciary and the administrative departments, where all our rights are tied up in the constitution, where every thing that we cherish, whether be person, liberty or property, depends upon the constitution. We can't depend upon the dead letter of the constitution to ensure to our citizens those rights unless they're given the means of establishing them and enforcing them in a court of law. And if they're forced to buy a ticket of admission and pay as they'd go, many, many citizens who can't afford to purchase the ticket or pay their way would be deprived of what they're entitled to as a matter of right from the state which has taken away from each of us the right of self-help in aid of our rights and has substituted the power of the state which we are committed to extend to every citizen.
Earl Warren: Mr. Bordeau.
Chester Bordeau: Mr. Chief Justice, and may it please the Court. In Mr. Nulman's statement yesterday, he stated that there is -- that the (Inaudible) respondent in one case, the petitioner and another, had pay -- played fast and loose with the court. I'm very much disturbed about such a statement being made to this Court. In the first place I must say again as I said to Mr. Nulman, I will rely on the record and I will rely on the statements made in my reply brief, but I should like to have just one opportunity to point out the type of fast and looseness that Mr. Nulman speaks of. At page 3, Mr. Nulman's answering brief in Number 33, he states although the words leech -- rich litigant I enclosed by the defendant in quotation marks followed by a reference to pages 754, 755, the reference in our brief was T74 and T55 of the transcript of this record which is before this Court, wherein this quotation is presumably to be found. The fact is that neither at that place nor elsewhere is such a quotation to be found. Judge Weinfeld never used any such term nor did he refuse to award the defendant an allowance on any such ground. And now Your Honors, I would like to refer to the record before this Court and I refer to pages 54 and 55 of the record which is an opinion by Judge Weinfeld delivered by him on September the 11th, 1962 relating to costs that had been taxed and on his review of the taxation of those costs on the second trial. At page 54, Judge Weinfeld stated that Rule 54 (d), the Federal Rules of Civil Procedure which provides that cost shall be allowed as of cost to the prevailing party unless the court otherwise directs, vest discretion in the court in passing upon the necessity and reasonableness of the costs. The policy of the federal courts has been to keep litigation cost down as particularly enunciated in Rule 1 of the rule -- Federal Rules of Civil Procedure. And then Judge Weinfeld proceeds to quote from that Rule, “To secure the just, speedy and inexpensive determination of every action”. That is the end of the quotation from the Rule. Judge Weinfeld then proceeds to stay the court's discretion should be exercised in conformity with that policy to quote -- to avoid “making the federal court only for rich litigants”. The quotation is from a statement contained in the opinion of Circuit Judge Clark on the appeal from the order dismissing the complaint for the failure -- from the plaintiff's failure to furnish a bond for security -- for costs.
Hugo L. Black: Was that a majority of dissenting opinion?
Chester Bordeau: Judge Clark's?
Hugo L. Black: Yes.
Chester Bordeau: That was unanimous sir.
Hugo L. Black: What?
Chester Bordeau: That was unanimous.
Hugo L. Black: Unanimous?
Chester Bordeau: That's correct.
Hugo L. Black: But what's wrong with quoting it?
Chester Bordeau: Oh, I'm not claiming it's wrong to quote it. I'm addressing myself Mr. Justice Black to the statement made by my opponent that we made a misstatement in saying and using the words rich litigant and attributing it to Judge Weinfeld. Now here, Judge Weinfeld quoting those very words from the Court of Appeals and he's adopting those words and stating those words, that's all we're saying, that's the only purpose of --
Earl Warren: Are the words used in the same sets in both instances? That would seem to be the important thing.
Chester Bordeau: Well, I think it is. I think definitely, yes.
Earl Warren: How did he use it in -- on page 3 was it you say of his --
Chester Bordeau: It's on page --
Earl Warren: 3 of his brief?
Chester Bordeau: Oh, the answering brief of the respondent, he says although the words rich litigant are enclosed by the defendant in quotation marks followed by a reference to pages 7, it should be 54 and 55 of the record, where this quotation is presumably to be found, the fact is that neither at that place nor elsewhere in such quote -- is such a quotation to be found. Judge Weinfeld never used any such term nor did he refuse to award the defendant an allowance on any such ground. I say he's adoption --
Earl Warren: Does that (Voice Overlap) --
Chester Bordeau: -- of the words of the Court of Appeals were used by Judge Weinfeld.
Earl Warren: Well, that last part is what bothers me in connection with what you just read from the record, is what he read -- is what you read from the record say that they're not entitled to these costs because they're a rich litigant? Didn't he on the contrary say that a rich litigant shouldn't be permitted to try the case over expensively for the purpose of loading the costs on the defendant to an extent that would prevent him from going into court?
Chester Bordeau: Mr. Chief Justice, all I am trying to do at this time, I'm going to come into more detail in answer to you question later on, but if you want me to answer now, I will.
Earl Warren: Well, I would --
Chester Bordeau: But all I'm doing now is to try to indicate and to demonstrate to this Court that when the plaintiff said that we are playing fast and loose with the court in making statements such as contained in our brief with respect to the use of the words rich litigant by Judge Weinfeld. And he said Judge Weinfeld never used those terms. All I wanted to do --
Earl Warren: Well, he --
Chester Bordeau: -- at this point --
Earl Warren: Isn't he saying he never used them in that sentence? Now, isn't the use of the words, what were more important -- whether it's more important to us and the fact that whether that you can find them some place in the record, you must take them in context? It seems to me if they're justifiable, I don't say they're not, but I'm asking you the question as to whether Judge Weinfeld used the term rich litigant in the sense that you are now presenting to us.
Chester Bordeau: Well, Judge Weinfeld does say Mr. Chief Justice. The Court's discretion -- now, he's talking about a discretion in the awarding or denial of cause, should be exercised in conformity with that policy. That is the policy referred to in Rule 1 of the Federal Rules of Civil Procedure, to avoid “making the federal court a court only for rich litigants”.
Earl Warren: Yes.
Chester Bordeau: I think it's clear that Judge Weinfeld is stating that a discretion should not be used that a discretion should be exercised in conformity to avoid a court being used for only rich litigants and that's --
Earl Warren: But before (Voice Overlap) --
Chester Bordeau: -- the only point we made.
Earl Warren: Before that he said, while this defendant as the Court of Appeals observed, “With its rich resources, he may well wish to try the case expensively”.
Chester Bordeau: That's correct.
Earl Warren: It, as a successful litigant is entitled to tax costs only in amount specified in applicable statutes and where not expressly specified the allowable costs must not only be reasonable but necessary in resisting the plaintiff's claim. That's on page 54. Now, is that you say --
Chester Bordeau: (Inaudible)
Earl Warren: -- there that he denied them those costs because they were rich litigant. He says they're not --
Chester Bordeau: Well.
Earl Warren: They're not entitled to over try their case and then assess the costs against the plaintiff.
Chester Bordeau: Well, Mr. Chief Justice, the words appear in the opinion of Judge Weinfeld and we have --
Hugo L. Black: Does the words rich --
Chester Bordeau: -- the opinion here.
Hugo L. Black: Does the word rich litigant appear in any --
Chester Bordeau: Not litigant, it's the word rich litigants.
Hugo L. Black: That's quite different, isn't it?
Chester Bordeau: That's correct.
Hugo L. Black: Altogether different.
Chester Bordeau: Well, I don't see --
Hugo L. Black: Or in the sense used?
Chester Bordeau: I don't think that --
Hugo L. Black: Because if he had said, "We will do this because he is a rich litigant", that would've been one thing which I was --
Chester Bordeau: Well, I think that's -- I think --
Hugo L. Black: (Inaudible)
Chester Bordeau: I think that's the sense of this --
Hugo L. Black: Well, that sense --
Chester Bordeau: -- Your Honor.
Hugo L. Black: -- of it, it seems to me is that they were bothered what the court have said that the rules should be interpreted toward not to give advantage to rich litigants. Not that he was saying, they should decide against this litigant because he's rich. Maybe that he could have explained more better than he did why he -- judge hadn't said that.
Chester Bordeau: But he is making --
Hugo L. Black: The judge did not say that this case could be decided against the -- your client because he was a rich litigant.
Chester Bordeau: This statement is made by Judge Weinfeld in a consideration of the exercise of the discretion of a District Judge in passing upon cost. I imagine it must have some relevancy and I think the relevancy --
Hugo L. Black: Well, it does have relevancy --
Chester Bordeau: -- which we (Inaudible) --
Hugo L. Black: -- doesn't he?
Chester Bordeau: Pardon?
Hugo L. Black: It does have relevancy that --
Chester Bordeau: Oh yes! I maintain it does.
Hugo L. Black: (Inaudible)in determining the basis of the rule, it would not be administered --
Chester Bordeau: That's right.
Hugo L. Black: -- in a certain way that rich litigants would get an unfair advantage.
Chester Bordeau: That's correct.
Hugo L. Black: But it -- so far as I can see from what you've said and what I've read of what Judge Weinfeld said, he didn't say that he was deciding this against your client because he was a rich litigant. There's quite a different.
Chester Bordeau: Well, the fact is he did --
Hugo L. Black: Maybe you're like -- maybe you're stretching it and maybe the other side minimized it.
Chester Bordeau: The fact is that he did rule against us. He brought the cost down from some --
Hugo L. Black: That's right.
Chester Bordeau: -- $6000 to $800.
Hugo L. Black: And that's the issue here so whether he abuses discretion in doing it, isn't it, or whether he had a right to do it?
Chester Bordeau: That's correct, that's one of the questions.
Hugo L. Black: That's the two questions isn't it, are there any more?
Chester Bordeau: Oh, there are a number of questions here Your Honor, I'm going to try to go in to those if I may. I think it would be of interest at the beginning or in the consideration of this appeal that the Court's attention should be called to the specific rules and the specific statutes that we are called upon to consider in the disposition of this appeal. I have those statutes and rules in my appendix. They appear at pages 2 (a) and 3 (a) of the appendix. I think those are the things that we have to start off with. These are the statutes, these are the rules, but the courts below have been construing in what -- which this Court would -- I believe will be called upon to construe. Rule 54 which appears at page 2 (a) of the -- of my appendix the rules of civil procedure for the federal cost, Rule 54, judgments, costs, subdivision (b) cost, “except when expressed provision therefore is made either in a statute of the United States or in these rules, cost shall be allowed as of course to the prevailing party unless the court otherwise directs”. And then it goes on as about to the United States with which we're not concerned. With cost against the United States, they shall be imposed only to the extent permitted by the --
Hugo L. Black: What is the otherwise directly means, according to your contention?
Chester Bordeau: Oh, I think what that means Mr. Justice Black is this. That if the court in the exercise of its discretion should determine that costs should not be allowed as a matter cost but there must be some reason, there must be some legal reason, some legal consideration in the court's exercising a discretion for I am sure that the Congress and that this Court would not consider discretion to be an exercise of the will of the judge based on caprice, on arbitrariness --
Hugo L. Black: Is that (Voice Overlap) --
Chester Bordeau: -- on whimsical -- pardon?
Hugo L. Black: Is that the basis of your contention that he based it on caprice and arbitrariness?
Chester Bordeau: No, that's -- no, I'm just saying -- I'm talking now about what is discretion and I'm going further.
Hugo L. Black: Because I was just trying to get down to the issue on that (Voice Overlap) --
Chester Bordeau: And that's what I'm coming to.
Hugo L. Black: Cause I haven't fully understood (Voice Overlap) --
Chester Bordeau: Right.
Hugo L. Black: -- on either side.
Chester Bordeau: And then I say that the discretion that the court is talking about is a legal discretion. In other words, when should a court exercise its discretion this way and when should a court exercise its discretion that way. There should be some guidepost to direct or to help or to suggest to a court when it should exercise in granting costs and denying costs, keeping in mind that the general purpose under this rule seems to be if the cost shall be allowed as of course to the prevailing party unless the court directs otherwise. Now, I say that the discretion I suggest that the discretion to be exercised by the court should be exercised in this way. If there should be a determination by the trial judge in this, I say, is the only place where discretion should apply. In his discretion, if he should determine that an expense, whether it be travel expense, "study case expenses", or other expenses that may be incurred as permitted by the statute, and that is the statute we're referring to here, 1920 I think it is, which appears on page 4 (a) which list the items of cost that may be allowed. That he should determine whether or not the incurring of those expenses which are referred to in Section 1920 of the judicial code which as Your Honors will note provides for the taxation of cost that is may tax again, may tax discretionary, fees of the clerk, of the marshal, fees of the court reporter, or all or any part of this (Inaudible) phonographic transcript necessarily obtained for use in a case. Three, and this is the one that applies to the witnesses coming upon places outside of the United States and from far places in the United States. Fees and disbursements for printing and witnesses, and then they have another one, fees for the exemplification and copies of papers necessarily obtained for use in the case. Now --
Arthur J. Goldberg: (Inaudible)
Chester Bordeau: It has no limitation.
Arthur J. Goldberg: (Inaudible)
Chester Bordeau: That's correct.
Arthur J. Goldberg: (Inaudible)
Chester Bordeau: Well, I --
Arthur J. Goldberg: (Inaudible)
Chester Bordeau: Mr. Justice Goldberg, I might suggest that the answer to your question is that for the witness from places that they suggest here required to travel between the territories and possessions or to and from the continental United States shall be entitled to the actual expenses of travel at the lowest first class rate. I might suggest that the answer to your question is that in order for such a witness to come, and say from Dhahran, Saudi Arabia he is required to travel from Dhahran to the United States, I think it's as simple as that.
Arthur J. Goldberg: (Inaudible)
Chester Bordeau: That's right.
Arthur J. Goldberg: (Inaudible)
Chester Bordeau: Might I suggest --
Arthur J. Goldberg: (Inaudible)
Chester Bordeau: Might I suggest to that -- to Your Honor that of course the subpoena power wouldn't run to Saudi Arabia or Europe.
Arthur J. Goldberg: (Inaudible)
Chester Bordeau: So,you'd -- they require (Inaudible) about subpoena's power.
Arthur J. Goldberg: (Inaudible)
Chester Bordeau: Oh, that's correct.
Arthur J. Goldberg: (Inaudible)
Chester Bordeau: Well, the only -- I might call Your Honor's attention, I don't want to avoid answering you question, that this Section 1900 and I was speaking of 1821, there is a reference in the legislative history of this in which it had said the purpose of this bill, I'm reading now from the legislative history.
Arthur J. Goldberg: Is that in your brief?
Chester Bordeau: It's referred to in my brief, but this is a legal document.
Arthur J. Goldberg: (Inaudible)
Chester Bordeau: United States Courts and Commissioners' witness fees and it's printed from Senate Report, Number 187, March 28, 1949 to comp -- to the company Senate Bill 635. The exact references are given in my brief Mr. Justice Goldberg.
Hugo L. Black: May I ask you -- I don't want to -- I do want to get the issues (Inaudible) --
Chester Bordeau: Surely --
Hugo L. Black: Because --
Chester Bordeau: I don't know what that --
Hugo L. Black: I thought (Inaudible) --
Chester Bordeau: If I answer you fully -- I was just about to give you this legislative history, if you want it?
Arthur J. Goldberg: (Inaudible)
Hugo L. Black: Well, all I wanted to ask --
Arthur J. Goldberg: (Inaudible)
Hugo L. Black: -- is find out --
Arthur J. Goldberg: (Inaudible)
Hugo L. Black: -- while you're on that point was this. When we're thinking about the facts that these are witnesses, they've been brought, is it your idea that the court if it decided that they were summoning witnesses that could just as well have given that evidence by deposition that the court cannot reduce costs on that grounds?
Chester Bordeau: Yes, I do so contend.
Hugo L. Black: That --
Chester Bordeau: Because I say the deposition -- the use of deposition in a case such as this where we've had two trials, and which has been described by at least two or three judges in the appeal courts as involving a very sharp issue of fact and I'll go into those issues later.
Hugo L. Black: Yes, but that's -- this -- I was asking (Inaudible) that goes to the point of whether there was an abuse of discretion. Is it your position that -- I recall it is, about 20 witnesses were summoned at one point.
Chester Bordeau: No, we didn't do that (Voice Overlap) --
Hugo L. Black: I know you didn't. I'm not talking about -- you did here. I'm testing what the issue is. 20 witnesses were summoned for one point, the court wouldn't let them use just two or three.
Chester Bordeau: That's right.
Hugo L. Black: Could they have been made to pay under --
Chester Bordeau: No.
Hugo L. Black: They had summoned the witnesses (Voice Overlap) --
Chester Bordeau: No, (Inaudible) --
Hugo L. Black: (Inaudible)
Chester Bordeau: I think the answer to your --
Hugo L. Black: What the court have been required to let you pay those witnesses?
Chester Bordeau: I think the answer to Your Honor's question is this. That it would be in the discretion of the trial judge to determine whether one, two, three or 20 witnesses were necessary for the determination of the truth with respect to the matter testified to it.
Hugo L. Black: Now one step further, would it be within his discretion where the expenses were great in bringing somebody from a foreign country to say, “Well, you could've done this just as well by deposition. We heard the evidence. We've seen the case tried and we've reached a conclusion that they could've done all right with deposition, if not, then they bringing them here was not justified”.
Chester Bordeau: I think there would be a distinct dis -- abuse of discretion in a case involving sharp issues of fact. I think there is only one way to come to the truth where a sharp issue of fact is involved, is to look the witness in the eye and to observe him in the giving --
Hugo L. Black: (Inaudible)
Chester Bordeau: -- of his testimony. I don't know --
Hugo L. Black: Your position is then that for a rigid rule, it says the court cannot ever by the sharp issues of fact, maybe that's right, cannot ever say, “Well, you could've done this as well by deposition. We're not going to let you tax these costs against your opponent.”
Chester Bordeau: I think that's probably right.
Hugo L. Black: Well, thank you. I didn't want to interrupt but I wanted before you left that (Voice Overlap) --
Chester Bordeau: Oh, yes.
Hugo L. Black: (Inaudible)
Chester Bordeau: Well, I appreciate you're --
Hugo L. Black: -- what the issue is.
Chester Bordeau: -- asking a question.
Speaker: I take it at some point for the use of what (Inaudible).
Chester Bordeau: I would -- I was coming to that and I would like to have that opportunity, but I don't think and unless -- Mr. Justice Goldberg's question is not been fully answered on this -- could you --
Speaker: (Inaudible)
Chester Bordeau: Yes. The purpose of the this bill is to increase the fees of witnesses appearing at the United States courts and before United States commissioners from the presently existing amount of $2 per day to the sum of $4 per day, the (Inaudible) -- subsistence fee from $4 per day to $5 per day. And the travel allowance from the presently existing 5 cents per mile to 7 cents per mile. The mere statement of the fact that the present fee for witnesses is $2 per day, subsistence is $4 per day and the mileage is 5 cents per day, points up the present inadequacy of such amounts to fairly compensate the individual either for his time or expenses incident to his service as a witness. It is unreasonable to expect and require witnesses to attend court at a personal financial loss. And going on, the amounts arrived at in this bill are considered to be more fair than presently existing to then existing amounts, although it is recognized that certain witnesses will not under the proposed rates be adequately compensated in order to fairly compensate everyone appearing as a witness it would be necessary to have either a graduated scale of fees or leave the amount of such fees to the discretion of the judge. Neither was con -- neither was it considered feasible and therefore the amounts arrived at herein are more or less arbitrary or considered to be necessary fair to the average witness. And then there is attached, Mr. Justice Goldberg, to this statement of purpose. There is a statement from the Assistant to the Attorney General, Mr. Peyton Ford, to the Honorable Pat McCarran, Chairman of the Committee on Judiciary in which he refers to these various items to which I have -- from which I've just quoted. And then he goes on to say this, this is the Assistant to the Attorney General. Therefore, doing a review of the law -- of the laws relating -- fixing the rates of compensation for witnesses and the reimbursement for their expenses reveal that the witnesses' attendance fee and subsistence allowance are the same as they were 40 years ago. Such rates -- then he talks more about these rates, I won't burden you with that. Then he winds up this way, for overseas travel, and I think is what you're interested in Mr. Justice Goldberg. For overseas travel, it is recommended that witnesses be allowed their actual expenses at the lowest first class rate available. There have been times when a witness had been required to engage in such travel at a personal financial sacrifice. A draft of the proposed bill to accomplish the foregoing purposes enclosed. And at that --
Speaker: (Inaudible)
Chester Bordeau: Well, than that would -- wouldn't that be placed in a criminal statute, Your Honor?
Arthur J. Goldberg: That you would have to consider this as (Inaudible).
Chester Bordeau: This is -- this 1821 applies to civil cases.
Arthur J. Goldberg: (Inaudible) but required to both.
Chester Bordeau: Yes, to both, correct.
Arthur J. Goldberg: (Inaudible)
Chester Bordeau: Well, there in --
Arthur J. Goldberg: (Inaudible)
Chester Bordeau: I don't know Mr. Justice Goldberg of there being any provision in the law whereby a citizen of France or of England could be required to attend in the United States, and that's what this statute is talking about, overseas.
Arthur J. Goldberg: (Inaudible) But, first of all this case has been made (Inaudible).
Chester Bordeau: Of course Mr. Justice Goldberg, I don't rely -- we don't rely solely on that amendment to 1821 which is made in 1948. That is only one of the arguments that we make. Now in order to follow the suggestion made by Mr. Justice Harlan, this action was commenced in the year 1956, I think these dates and this little bit of history is quite important. In 1956, in the original complaint, the plaintiff claimed $4000. An answer was interposed amounting to a general denial. In 1958, this is a year and a month before the first trial, before Judge Palmieri on May the 11th, 1958 and in April of 1958 I say, there was an order -- an answer served by this defendant. And that answer appears at page -- maybe at my record -- appears at page 3 and 4 of the transcript in this case. You've heard many statements about there being injected various defenses on the eve of trial. Now here is an answer, was interposed and filed in the court in April of 1958, and it says, “as and for its affirmative defense” page 3, “that the agreement alleged in paragraph third, fourth and fifth of the complaint is void as a matter of law because it was not in writing.” And as a -- as in 42nd affirmative defense, page 4, the defense alleges if and in the event that it is found that plaintiff was employed by the defendant for a term as he claimed in his complaint. Defendant alleges that he'd terminated plaintiff's employment for a good cause and yet we have heard a lot of the many statements made here that this defense was not raised until the trial commenced in 1959. Well, that's just not true. Here, that answer was filed and the docket of the clerk will show that it was filed, and I have a photocopy of that docket here, and that's in April of 1958 in the trial May of 1959. We were not injecting any new issues on the eve of trial, but then we were (Inaudible) -- that's what the pleadings were. Now, I conducted an examination before trial --
Earl Warren: When was your original answer filed?
Chester Bordeau: Oh, 1956, of the -- (Inaudible) -- I think the suit was started in June, it was removed and within the required time I think we interposed an answer Your Honor.
Earl Warren: And in 1958, two years later you did --
Chester Bordeau: That's correct.
Earl Warren: -- filed an amended answer --
Chester Bordeau: That's correct.
Earl Warren: -- raising additional issues.
Chester Bordeau: That's correct, by permission of the court. That was an order entered --
Earl Warren: But --
Chester Bordeau: -- by permission of the court and that order also appears in the record, it's an order of Mr. Justice or rather Chief Justice -- Chief Judge Ryan. Now, to proceed pursuant to the suggestion made, I conducted an examination before trial, Dr. Farmer in New York. And that was in the year -- in October of 1956. And I questioned Dr. Farmer with respect to the occasion of his discharge by the defendant. He claimed that he was discharged, I think this is very important in the background of this case, that he was discharged because he had refused to be intimidated by the defendant's doctors into making false reports with respect to his findings relating to trachoma. Trachoma is a very serious eye disease which in many cases leads to blindness. He said he was being intimidated and bullied to make false entries, to make false diagnoses of his findings with respect to trachoma. And it was for that reason, said he, that he was discharged. And I asked him whether or not he wasn't discharged for the reason that he had conducted a non-emergency operation on a four and a half year old Arab boy who had a sickness or disease of the eye, I think it's called Chalazions which are growths on the inner lids of the eyes. And that this operation was performed under general anesthesia and I asked him whether or not it was not an accepted rule in the medical profession that before any operation is performed under general anesthesia that there should first be obtained by the operating surgeon the results of pre-laboratory tests. Those pre-laboratory tests are urinalysis and a blood count. He said he never heard of such a rule. It wasn't until he returned in 1956 sometime immediately prior at the time when I examined him that he has learned of any such rule. He also testified that he conducted this --
Earl Warren: Well, were you referring to a written rule?
Chester Bordeau: We are referring to a written rule and also a rule of a medical profession widely and generally and always accepted apparently claimed, the medical testimony we have, both a written and a general rule. It can actually -- it makes think right now about this pretty lady in uniform that he'd been talking to, she (Inaudible) -- she testified about that bulletin board -- about that rule -- the written rule being on a bulletin board. This is the pretty lady in uniform that Mr. Nulman is talking about. She appeared from someplace in the United States as a member of the Air Force and she had her uniform when she came here. She was a member of the Air Force and was wearing her uniform. She came from her post with special leave to come here. That's the pretty lady in uniform.
Earl Warren: On what bulletin board? The bulletin board --
Chester Bordeau: What?
Earl Warren: The bulletin board that is available (Voice Overlap) --
Chester Bordeau: The bulletin board right outside the operating room Your Honor.
Earl Warren: On this -- in this plant?
Chester Bordeau: In this hospital, in this hospital in Dhahran, Saudi Arabia.
Earl Warren: I thought Mr. -- or your counsel said that there had been such a test made, both the blood test urinalysis immediately preceding this.
Chester Bordeau: Well, that's what I'm coming to Your Honor, I want to tell -- I want to talk to you about that. On the -- the examination before trial, he said he didn't need any of these pre-laboratory tests. He had looked at the boy, the boy was healthy. He didn't need any of these. This pretty girl in uniform who was a nurse in the operating room said that she was there -- she was attending -- was there and sought that there was no laboratory tests and that Dr. Farmer was told that he should not conduct the examination without the benefit of these pre-laboratory test.
Hugo L. Black: Who did you say had said that about the pretty girl?
Chester Bordeau: He -- Mr. Nulman, I think you may recall in his statement Your Honor, he talks about our colleague, this extravaganza. He was talking about a pretty girl in uniform. You may remember he saying that, but that's the girl he's talking about, and it is not an extravaganza. It was required that we produce witness who could relate the facts as the jury finally believed, believed the facts as to the reason for Dr. Farmer's discharge.
Earl Warren: Well, was there any such analysis made in this case before the (Voice Overlap) --
Chester Bordeau: In fact there was Your Honor.
Earl Warren: There was?
Chester Bordeau: Oh yes! In fact there was.
Earl Warren: And then --
Chester Bordeau: And it was in process. Dr. Farmer had been requested by Nurse Swanson, who also testified at the trial, to wait five or ten minutes that the test had been taken they were in the process of being developed, but he waived -- he said there's no occasion to wait. And she was an anesthetist and she wouldn't attend on the operation. She said, “Rules require it that we have these tests before any operation is performed”. And he said, “Well, I don't need you”. And then what Dr. Farmer did even in violation of another rule or another practice in the medical practice at least, he performed the operation and administered the anesthesia simultaneously. Our medical testimony to which I will refer later indicates that that is the most hazardous proceeding for any surgeon to engage in no matter how long or how short the operation may be. That he said he could do both that he could observe whatever is necessary to observe in the giving of anesthesia and he can perform the operation of both eyes of this Arab boy at the same time. I'll talk about the medical angle as I go on, there's some very serious implications involved.
Earl Warren: On the question of this written notice, I understood Mr. Nulman to say that the superior of this doctor at the hospital, one of your witnesses, testified that to his knowledge there was no such written order. Did I (Voice Overlap) --
Chester Bordeau: Mister --
Earl Warren: I beg you pardon?
Chester Bordeau: Mr. Nulman is referring to Dr. Bourne. Dr. Bourne was an assistant medical director. He was stationed from time to time in Saudi Arabia and sometimes in the United States. The medical director was Dr. Page who is located and stationed in Dhahran, Saudi Arabia. He was called and he testified about this bulletin board and about this rule. Now Dr. Bourne testified as Mr. Nulman has stated, now he was not the chief as noted by Mr. Nulman in his brief, he was an assistant administrative officer on the administrative staff in Saudi Arabia. The medical director was Dr. Page.
Earl Warren: Was he stationed there -- was he stationed to that hospital?
Chester Bordeau: He was there from time to time Your Honor. He was in New York and he was in Saudi Arabia. Now, he said he didn't recall having seen such a rule on the bulletin board. Dr. Page did, Dr. Lonus (ph) who was the chief of surgery did, Neil nurse, this pretty girl in uniform she did, and the nurse -- the anesthetist Swanson who was in the operating room, she did. And we also have on that very score Your Honor and I'm glad you asked this question. After this occurrence on this operation, Dr. Lonus who came here to testify stated that after the operation Dr. Farmer admitted to him that he had not received the results of these pre-laboratory tests.
Hugo L. Black: What did he testify on the trial?
Chester Bordeau: He testified to that. He testified that --
Hugo L. Black: I mean Dr. Farmer.
Chester Bordeau: Pardon?
Hugo L. Black: What did the doctor testify --
Chester Bordeau: Well, you see that's where -- I mean --
Hugo L. Black: -- in the trial?
Chester Bordeau: On this trial he did this Your Honor. Now, I told you when he testified to an examination before trial he didn't have the laboratory test, he didn't need them, he hadn't seen them.
Hugo L. Black: What did he testify at the trial?
Chester Bordeau: Now, at the trial he testified this way.
Hugo L. Black: Did he testify that he had or had not --
Chester Bordeau: Yes he did.
Hugo L. Black: And was that the crux point of dispute between him and the lady?
Chester Bordeau: That was one of the disputes.
Hugo L. Black: The point of dispute was, he said he did, both of them agreed that the test had been taken. But she testified, as I understand it, that he had not waited for them, he testified he had. Was that the point (Voice Overlap) --
Chester Bordeau: No, he did not testify that he waited. He said he proceeded with the surgery because it wasn't necessary to have these results.
Hugo L. Black: At the trial?
Chester Bordeau: No, this was on the --
Hugo L. Black: I'm not --
Chester Bordeau: -- examination before trial.
Hugo L. Black: At the trial.
Chester Bordeau: At the trial, now he changed the testimony Your Honor.
Hugo L. Black: What did he testify at the trial?
Chester Bordeau: Now, -- at the trial he testified that he didn't have the results contrary to what he testified to in the examination for a trial.
Hugo L. Black: I understand that, both of -- I'm trying to get what the point of issue was if it -- if the -- that your -- that the question of reasonable is necessary. And the nurse testified with a uniform, as I understand it, that quite different to him as to whether they -- he had waited for it at the trial. But both agreed that it was not -- that the test were taken.
Chester Bordeau: Were negative.
Hugo L. Black: That (Inaudible) -- both agreed they didn't take it.
Chester Bordeau: Oh yes! Now, but he testified the point that I'm making with respect to this --
Hugo L. Black: Now that the judge has made this decision to hear that evidence from both sides?
Chester Bordeau: Oh, yes! Judge Palmieri heard this. Now he changed, as I said, the testimony on the trial.
Hugo L. Black: Of -- what did the (Inaudible) --
Chester Bordeau: But I want to emphasize this very much Your Honor.
Hugo L. Black: But you've emphasized it.
Chester Bordeau: And --
Hugo L. Black: This is all you want.
Chester Bordeau: And the -- comes the second trial that follow through on that. So on the first trial, he said he got the results from a nurse, a Lebanese nurse by the name of (Inaudible) but we hadn't heard, I've never heard of (Inaudible) before. But we got in touch with (Inaudible) over in Saudi Arabia and we had him flown over here on this first trial to find what the facts were. And (Inaudible) took the stand here in New York and he said, “I never gave him the results of any such tests. That is not true and I -- the fact is that I never gave him. I'm never in the position to give him because the operation was over by the time I have the results.” Now, this is on a second trial -- this on the first trial. And then on the second trial, mind you this, on the second trial realizing that we had gotten the testimony of (Inaudible) hurriedly and suddenly under the surprise information that we have given by Dr. Farmer as to -- he didn't get the results from Mr. (Inaudible), so we -- as I've said we've flew him over here. But on the second trial, he took it -- well, we had Mr. (Inaudible) so he changed the testimony a little bit again. On the second trial he says that -- I asked him that, “Where did you get this information about the test before the conducting of the examination?” Oh, he said it was from the nurse. And I asked him whether the name that nurse, (Inaudible)? “Well, I'm not sure”, he says on the second trial. It may have been another nurse. And I tried to pin him down on it and say, “Now, isn't it more than an impression? Didn't you testify on the first trial here that it was (Inaudible) and you were positive about it?” “Well, you said that you're leading me on Mr. Bordeau, you're leading me on”. But I said, “What is the fact -- what is the fact? Well, he said it may, this is the second trial, “It may have been -- maybe it was another nurse”. Well, we don't know who he's talking about then and we try to have anybody available that could possibly contradict this man's shifting testimony from time to time from examination before trial to -- first trial to second trial, the very difficult thing to meet all these shiftings in the testimony in this plaintiff. Now --
Arthur J. Goldberg: Is there an (Inaudible) case before the jury, is that correct?
Chester Bordeau: That's correct.
Arthur J. Goldberg: Now what about cost?
Chester Bordeau: Now the cost, the large -- their items of cost here are probably two items or two categories of items. One is the transportation of the witnesses, that's number one. And the other is the transcript, transcript of deposition, the transcripts of testimony taken during the trial. Now, I say that the transcripts were necessary particularly, and I say particularly on the first and the second trial for that matter. But on the first trial these minutes were ordered with the approval of the court. They were used by the court from day to day. They were used in checking the record with Mr. Nulman who was in many disagreement, many dis -- engaged in many disagreements with the trial judge as to what happened from day to day. And judge Palmieri had the record before him and read the record to him to correct his recollection of the record. And that daily transcript proved to be very important and very necessary in the defense of this action. It was also used by the jury in wanting to know the answers that had been given to various questions by the witness Farmer and by other witnesses.
Arthur J. Goldberg: That one of the (Inaudible).
Chester Bordeau: Well, I think that daily transcript is vitally important Your Honor in a case where were faced with a shifting witness. Mind you here was one man whose -- that involved ten or 20 people in his various contacts with the defendant. He could pick out whoever he thought would might -- what might not -- who might not be available and we would have to run, as we did with (Inaudible), run to Saudi Arabia fast and get him here in order to use on the trial. We are dealing with a witness of that kind. We had been warned on the first trial of what he had done and I think it is only fair that we should've been prepared for the second trial by having those witnesses available who could testify to what we thought was everything he could say. But he could shift and shift and shift, and there was another shift even on the second trial. There was a shift with respect to the charge made for the first time. This is after an examination before trial. This is after first trial. And on the third trial the charges made that the defendant had falsified his records relating to this Arab boy, and maybe the record that we had related to another boy, may it -- not this Arab boy.
William J. Brennan, Jr.: (Inaudible)
Chester Bordeau: Pardon?
William J. Brennan, Jr.: On this case -- the third trial?
Chester Bordeau: On the second trial.
William J. Brennan, Jr.: (Inaudible)
Chester Bordeau: Two, they're on the second trial and made this charge that we had changed these records. Now these are very serious charges to make against anybody whether the amount involved is $5 or $5 million. These are serious charges to be made and they should be meted effectively as possible. And we so -- but we've thought to be the most effective means of meeting these very serious grave charges made against this defendant. And I think that the daily transcripts were very vital and very important and necessary and it -- for the defendant in the defense of this action. Now with respect --
Speaker: (Inaudible)
Chester Bordeau: Now with respect to the witnesses, I think what I have said it -- here before indicates the importance of having those witnesses available in New York physically, live where they could be seen by a jury to state the facts with respect to these serious charges made by this Dr. Farmer.
William J. Brennan, Jr.: (Inaudible)
Speaker: Oh! We're talking about two or three, three I think it is. I think the record here show about --
William J. Brennan, Jr.: (Inaudible)
Chester Bordeau: Well, you've got the minutes of the trials, Your Honor, it's two trials.
William J. Brennan, Jr.: I don't have it, I -- how many -- how much of the $11,000 was involved (Inaudible) being in here?
Chester Bordeau: Well, I could calculate that in a minute, I don't have the figure ready at hand. It's a -- I have it in the record. I think we have indicated by what I have said that the attendance of these witnesses was an important and was a necessary thing for us to do in the defense of this action. And I say that any rule that should be formulated should be a rule that will permit a party litigant to be reimbursed for any necessary expenses in the defense or the prosecution of an action. And if the discretion to be used by the court should be limited to whether or not the expense incurred were necessary to the prosecution or defense of the action.
Earl Warren: When was the first bond required by the court?
Chester Bordeau: That was after the first trial Your Honor.
Earl Warren: After the first trial.
Chester Bordeau: Yes sir. That's not involved on this appeal.
Earl Warren: I see.
Speaker: Are you going to address yourself at some point to the question of law as to whether the 100-mile rule, 100-mile limit on subpoena power should be imported into the cost statute?
Chester Bordeau: I do. I don't --
Speaker: Let me ask you this question? Now, when -- all of these cases, as I understand it, when I followed the result, we really got three questions in front of us. Number one is whether there is such a limitation on the cost rule. And number two is whether there was an error of law as your opponent claims in the Court of Appeals ruling that Judge Weinfeld was bound to follow Judge Palmieri's award of cost on the first trial. And number three whether they're assuming that both those things are actually in your favor, there was abuse of discretion.
Chester Bordeau: That's right.
Speaker: Isn't that all there is to this case?
Chester Bordeau: That's right.
Speaker: Anything more?
Chester Bordeau: And I think it's an informed discretion --
Speaker: Is there anything more than that?
Chester Bordeau: No.
Speaker: Well, I'd like to hear you for myself on the question of the subpoena limitation being imported into the --
Chester Bordeau: Well, all the applications as I understand it that the 100 mile rule, in the allowance by some courts of costs limited to the extent of 100 miles from the place of trial emerged from a consideration of Rule 45 (e) of the Federal Rules of Civil Procedure relating to the subpoena power. And that section permits the service of a subpoena within the district where the court is sitting or within 100 miles of the place where the court is sitting. That 45 (e) appears at page 2A of my Appendix. Some way or other, the judges or the courts started to apply the rule with regards to the extent of the subpoena power in saying as to what cost were recoverable. In other words that subpoena -- only insofar as the subpoena could issue could a court assess costs against the party for having someone to attend at the trial. And there is nothing in 45 (e) -- there is nothing in 45 (e) of Rules of Civil Procedure that would suggest any such thing. There is nothing in any of the other provisions of law which suggest any such thing. There is nothing in the Rules of Civil Procedure that suggest any such thing.
Speaker: The courts -- if the courts did that, did they do it in terms of rules of different guidelines that they (Inaudible)
Chester Bordeau: I think some courts --
Speaker: (Inaudible)
Chester Bordeau: Some courts felt they were bound and I think others did as Your Honor suggests that they felt that would be a way of doing it, but there is nothing to justify. That's what I say is not a legal reason for the exercise of a discretion this way or the other. That is not a reason. The fact that a court may issue or may tax cost for subpoena fees is not a reason why the rule should be limited to that. There is nothing anywhere in the law that provides that accepts some construction of some courts with respect to this. And I say that the appli -- of the application of a 100-mile expense is not justified, had not ever been justified.
Potter Stewart: Haven't the vast majority of the federal courts considered themselves bound in allowing cost for mileage of witnesses to the 100-mile --
Chester Bordeau: Do I have --
Potter Stewart: -- in the district rule?
Chester Bordeau: Mr. Justice, I haven't counted but I think there are eight number both ways.
Potter Stewart: Are there? (Inaudible)
Chester Bordeau: A great number both ways.
Potter Stewart: I haven't read the cases but I was quite --
Chester Bordeau: I haven't -- I have --
Potter Stewart: -- impress with the long string of citations of --
Chester Bordeau: I -- maybe I should've --
Potter Stewart: -- citations --
Chester Bordeau: -- prepared --
Potter Stewart: -- in the dissenting opinion. I --
Chester Bordeau: Yes.
Potter Stewart: I had the idea that most courts had (Voice Overlap) --
Chester Bordeau: (Inaudible)
Potter Stewart: -- felt themselves limited.
Chester Bordeau: Since 1948, when 1821 was amended as we were discussing a few minutes ago. It is my recollection that all of the cases decided except Judge Weinfeld's decision here in the Court of Appeals' decision have all determined that the 100-mile limitation is not applicable.
Arthur J. Goldberg: (Inaudible)
Chester Bordeau: An American citizen?
Arthur J. Goldberg: (Inaudible)
Chester Bordeau: But that wouldn't apply to a principle --
Arthur J. Goldberg: The principle here?
Chester Bordeau: But it wouldn't apply to our principle.
Arthur J. Goldberg: (Inaudible)
Chester Bordeau: It wouldn't apply to a principle.
Arthur J. Goldberg: Yes, but not throughout the case. Now, here then, if you (Inaudible)
Chester Bordeau: Oh, I read that amendment to Your Honor to suggest -- I've only got five minutes Mr. Chief Justice --
Earl Warren: No, I just want you to speak in front of the --
Chester Bordeau: Oh, I'm sorry --
Earl Warren: -- podium so it could be recorded.
Chester Bordeau: Yes, what I said (Inaudible)
Earl Warren: No.
Chester Bordeau: I -- the interpretation I placed on 8 20 -- 1821 is that it's a suggestion or a deduction which could be made from the use of their statute by Congress to indicate that expenses other than those that are -- come within a subpoena power are certainly taxable.
Arthur J. Goldberg: (Inaudible)
Chester Bordeau: No, I do not. And I think the other statutes support us. The foundation for the argument which we have made that is Sections 1920 and Rule 45 -- 54. Now my time is coming to an end and I would like to make this last observation. In the opinion of the Court of Appeal -- the Court of Appeals, the reference was made by Chief Judge Lumbard to the effect that a court in the exercise of its discretion could take into consideration the relative wealth of the parties. I think that that suggestion is a suggestion which should be rejected by this Court. I think that there can only be one application of the rules. They would have to apply to those with wealth and they would have to apply to those without wealth. And in that connection, I would like to call the court's attention to the words of Mr. Justice Goldberg in a lecture given by him before the New York University School of Law. I think it was the James Madison lecture given on February 11th, 1964. There, Judge -- Mr. Justice Goldberg after referring to some very pertinent and words of Mr. Justice Black as follows providing equal justice for poor and rich, weak and powerful alike is an age old problem, those are the words of Mr. Justice Black to which Mr. Justice Goldberg referred. And then Mr. Justice Goldberg went on to say, “Here is another aspect of equality. We derive our constitutional inspiration from the Bible.” And he quotes, he quotes from the third book of Moses, Leviticus, “You shall do no injustice in judgment. You shall not be partial to the poor or defer to the great, but in righteousness shall you judge your neighbor”. That is the end of the quotation but Mr. Justice Goldberg proceeds. Justices of our court and many state courts take an oath to do equal justice to the poor and to the rich. And I say that we cannot have a rule which would say because you are wealthy or you are -- you're entire cost can be taxed against you and if you are not as wealthy or wealthy, that costs shall not be taxed against you. I think with those remarks, I see the red light and --
Earl Warren: Mr. Bordeau, I'd like to ask you just one question about whether or not Judge Weinfeld was foreclosed from fixing costs of the first trial by the order of Judge Palmieri?
Chester Bordeau: I think he should be Your Honor, for that -- but may state my reason for that?
Earl Warren: Will you state it briefly? We (Voice Overlap) --
Chester Bordeau: Very briefly.
Earl Warren: I'd like to know your position.
Chester Bordeau: Very briefly Your Honor. I think there is a rule where a second judge while he might -- he should probably give great respect to what his Brother judge has said in the disposition of any preliminary motions. I think he still has the power and the right if he is convinced that an earlier ruling is completely erroneous. But I don't think that rule applies here where you got a judge who sat during a trial from 10 or 12 days, had occasioned to observe what was necessary and not necessary that his rulings should be reversed by a judge who did not sit on that trial. I think that is error for the second judge to do that. I think the judge who sat on the trial who was able to observe what occurred is the one that should fix those costs. And if they should not be reversed by a judge who did not sit on that first trial, I think that's wrong.
Earl Warren: Even though the first judge was reversed by the Court of Appeals?
Chester Bordeau: He was not reversed on that.
Earl Warren: No, but it was reversed.
Chester Bordeau: He was reversed on a statute of frauds question. Statute of frauds question in which the Court of Appeals two years later reversed itself in favor of what Judge Palmieri had done.
Hugo L. Black: Your quotation from which you've read lead me to ask the question, do you think that in order to hold that Judge Weinfeld was wrong that that would mean that he was deciding against the rich because the rich were rich?
Chester Bordeau: I think it was a consideration in his mind if you read those opinion. I think you might deduce that. Otherwise, probably it wouldn't be mentioned.
Hugo L. Black: Otherwise what?
Chester Bordeau: Otherwise, why should -- should any mention be made of it?
Hugo L. Black: Well, he said reasonable and proper, he puts those in issue as I recall it in the words --
Chester Bordeau: He don't have to tell us about rich and poor --
Hugo L. Black: -- what should be reasonable and proper --
Chester Bordeau: He wouldn't have to tell us about rich and poor then, would you?
Hugo L. Black: What?
Chester Bordeau: He wouldn't have to tell us about the rich and the poor.
Hugo L. Black: Why wouldn't he? Why --
Chester Bordeau: Why would he?
Hugo L. Black: Why would it not be relevant in construing the rule according to the judge (Inaudible) as meaning that it was not to have a set up in some way, it would allow the person who is rich enough to do so to oppress the person who was poor in a litigation.
Chester Bordeau: Well, I --
Hugo L. Black: That it was a philosophical observation there, but why -- are we to decide -- if we decide with you that Judge Weinfeld did this in order to (Voice Overlap) --
Chester Bordeau: Oh, I don't think that's necessary.
Hugo L. Black: -- the rich, because he were rich?
Chester Bordeau: No, I don't think that's necessary but I think the statement from this Court that any -- the use of any fact or in the dis -- exercise of discretion by a court that's based on the comparative wealth of the party is not a proper consideration. That would not be out of order.
Potter Stewart: But Mr. Bordeau, isn't the point simply this that a litigant with unlimited economically financial resources can if he chooses bring 50 witnesses from Tokyo, Japan all of them cumulated let's say. And that a District Judge in his discretion can say that is litigative overkill, so to speak --
Chester Bordeau: That's right.
Potter Stewart: -- and it wasn't necessary to the trial of the case and therefore I'm not going to allow those costs.
Chester Bordeau: That's right.
Potter Stewart: And that's where the point of rich -- that's the point of being rich --
Chester Bordeau: That's right.
Potter Stewart: -- you can if you want to --
Chester Bordeau: That's right.
Potter Stewart: -- exercise an abundance and unnecessary abundance of caution.
Chester Bordeau: But you don't tax your opponent with it. In further answer to what Your Honor has just stated, it's been stated -- we're denying access to the courts. That's not so by the application of the rule that I advocate. There isn't a denial of access to the courts. The fact is that you take poor litigants, if a poor litigant had a worthy cause that he didn't have the prospect of collecting the cost that he would have to incur in a transportation of witnesses from far away, he would be denied. He would be denied, effectively denied the use of the court and that applies to a poor defendant who couldn't call for witness and expect to be repaid. So the rule should permit the payment of expenses that are necessarily exerted by the -- by a plaintiff or a defendant, whether they're poor or they're rich.
Byron R. White: Would you disagree with the Court of Appeals then when it said that even in the case of a necessary witness, a court has discretion, has the power to go beyond the 100-mile rule but it doesn't -- but it need be that it may consider the respective financial resources of the party. Now, that's what I gathered from the court -- the majority opinion of the Court of Appeals.
Chester Bordeau: From my own?
Byron R. White: That is the -- that is what you are bringing up here, Number 33.
Chester Bordeau: That's right. Now my only suggestion about that is that there should be a limitation on the exercise of that discretion. And that discretion should be limited by finding out or in determining what is necessary and reasonable --
Byron R. White: Once you decide --
Chester Bordeau: -- that the exercise --
Byron R. White: -- that's necessary, to discretion him.
Chester Bordeau: That's right. And in this case, in further answer your question Mr. Justice White, Judge Weinfeld on the second trial didn't deny cost on the ground that these witnesses were not necessary. He allowed $16 but he must have found they were necessary otherwise he shouldn't have allowed that.
Byron R. White: Well, the Court of Appeals said that, as I gather the Court of Appeals affirmed Judge Weinfeld to some extent, but the Court of Appeals would allow a District Judge in his discretion even in the case of a necessary witness to deny cost on the grounds of the relative financial status of the parties.
Chester Bordeau: There is a statement to that effect in that opinion. Thank you Your Honors.
Kalman I. Nulman: I want to request the Chief Justice if I may, I think --
Earl Warren: Yes, I think you have one minute.
Kalman I. Nulman: I'll address myself to the last thing that Mr. Bordeau said. The argument that the poor are benefited by the allowance of great -- of costs sounds plausible, but in the actual event it's illusory because it supposes first that he has the funds to advance during the trial, and secondly it fails to take account of the fact that the benefit to him from the recoupment is disproportionate to the financial ruin which he faces if he loses. Now as to the disparity between the rich and the poor, our theory of law has always been that the individual fitted against the overwhelming might of the state is entitled to certain equalizing factors. And as evidence of that, the first ten amendments of our constitution provides safeguards for the individual against the might of the state. Now as to the quotations that Mr. Bordeau read, I'll stand on the statement we made in our brief about the two answers as quoted at page 7 of Mr. Bordeau's brief. And finally as to my statement that Dr. Bourne was Dr. Farmer's chief, these questions as reflected in the record were asked and answered specifically, “Dr. Bourne, did you ever see any written rule requiring preoperative laboratory procedures such as the taking of urine and blood specimens for analysis?” “I do not definitely recall having seen them”. “You were Dr. Farmer's chief, were you not?” “Yes”. “What I'm asking you Dr. Bourne is was there any list of rules containing among them such a rule?” “I was under the impression that it had at some time been written out. I actually have never seen such a written rule pertaining to it in our hospital”.
Earl Warren: Very well.