Page:The Green Bag (1889–1914), Volume 17.pdf/316

 THE APPLICABILITY OF ENGLISH METHODS either side to interrogate orally the opposite party and ascertain the real scope of the controversy. This, on the whole, works in the interest of justice; fastens testimony when it is fresh in the minds of witnesses and prevents amplification of causes as an actual trial approaches. Of course this procedure is open to the objection that unscrupulous litigants will secure evidence to bolster up weaknesses ascertained by the preliminary investiga tion but there is this difficulty in all cases and. the good would seem to entirely out weigh the evil, in fact, it would have the advantage of terminating a great deal of litigation without actual trial in court. Both parties would discover exactly where they stood and be unwilling to go to the expense of trial in weak cases. VI. The English provision for a staff of masters might, with some modifications, be advantageously adopted and much freer reference of cases be made. There is seri ous objection to further increasing the size of the Superior Court, which already con sists of twenty-three justices. The present system in Suffolk of placing cases upon the trial list at a calling of the docket on Wednesday of each week seems to work as well as any system which can be devised. There is a general trial list of all jury cases and from this list cases when reached in numerical order may be put upon the short list for the ensuing week, upon application of either side, unless good cause is shown. The short list is considered prac tically as an assignment of cases and nothing short of the actual engagement of counsel in another court is an excuse for delay when the case is reached. VII. Bills of Exceptions. One of the most vexatious causes of delay in the administration of justice in this state is the present system with regard to bills of exception. Within twenty days after the verdict of a jury, or decision by a single justice sitting without jury, the defeated party may present, in writing, a bill of ex

297

ceptions for allowance by the court. The practice is for counsel to attempt to agree upon disputed points, and hearings are had before the trial justice only upon points of final disagreement. The engagements of counsel, the examination of shorthand re ports, and the framing of a final draft often cause interminable delay. The summary method adopted in Eng land of hearing questions of law with out printed bills of exceptions, and without printed briefs, strikes an American prac titioner at first with dismay. The system certainly tends to the rapid disposition of causes and probably results in substantial justice. Counsel with the case fresh in their minds can undoubtedly present the matters in which they conceive they are aggrieved within a month of the trial as clearly and fully as after months of delay on the exceptions themselves, and in pre paring printed briefs. VIII. Considerable relief would result from increasing very materially the taxable costs in cases taken to the Supreme Court and requiring a bond for their, payment. At present the costs are trivial, and all sorts of questions are carried up without much ex amination of the law till the actual prep aration of briefs is begun. IX. The present congestion in our courts seems to me to be due in part to two causes peculiar to our conditions. Owing to the public jealousy of the judiciary in the early part of the last century the power of judges in the control of trials was very much lim ited, and under our statute judges may not charge upon facts, or indicate in any way their opinion of cases or of testimony. This has resulted in the judges taking very little control of the course of a trial, intervening seldom except when asked by counsel for a ruling. It is a common expression among lawyers that the best judge is one who keeps quiet and lets counsel try their case. This re sults in unnecessarily protracted trials. The court permits counsel to go into a vast