Page:The Green Bag (1889–1914), Volume 17.pdf/555

 THE GREEN BAG

PRACTICE WORK IN LAW SCHOOLS BY JAMES PARKER HALL ONE of the difficulties confronting the ing the teaching of which there is no gen persons yearly honored by invitations eral controversy. The thirty-five per cent to read papers before this Section is that remaining, however, seemed extraordinarily of choosing a subject with even a flavor of large, and to test the figures I examined the novelty. Those law-school problems which reports of the highest courts in Massachu can be much enlightened by discussion are setts, New York, Michigan, and Illinois for neither many nor complex, and we have the year 1902-3, tabulating the practice talked about them all before. Experience points and endeavoring carefully to dis is solving them for most of us more effec tinguish them from points of substantive tively than argument, and, like our theo law. It appeared that less than ten per logical brethren, the temper of these gather cent of practice points were passed upon by ings is passing from the rigor of doctrinal these courts; and I strongly suspect that debate to the genial toleration of the ex Mr. Smith's system of classification must perience meeting. So long as our greatest have been very liberal toward the practice court decides its most interesting cases by headings. a five to four vote we must admit that Really, the case against our practitioners reasonable men may differ about some of is not nearly so bad as even this, for many our questions; and one over which disagree practice questions are included by counsel ment is certainly reasonable is how far prac as makeweights in cases where the appeal tice should be taught in the law school. is really taken on the merits or for delay. Some consideration of this will form the That such objections are overruled in an first part of my paper. appellate court does not stamp either law Discussion of the subject in recent years yer as incompetent. They are simply play has often been prefaced with the statement ing all of the points in the game. In about that half of the appellate litigation in this one-fourth only of the practice points raised country is over questions of practice, and in the cases I examined, was the practice has proceeded upon the assumption that followed held bad where an alternative law schools could give instruction which existed, and in part of these the questions would very much diminish this proportion. must have been doubtful and no more to be The first proposition, as usually stated, is settled without litigation than are moot extravagantly misleading, and the second points in substantive law. Badly-drawn may well be doubted. In 1894. there was statutes and rules of court are responsible published in the minutes of this Section,1 for much earnest controversy over points of a table prepared by Frank L. Smith of practice. The proportion of practice points New York, purporting to show that nearly on appeal in which the lawyers might reason one-half the points passed upon in ordinary ably have been expected to do better, is civil cases by the appellate courts of. the thus probably somewhere between one and United States and Canada in 1893 did not two per cent, a showing much more en involve the merits of the causes, but con couraging than the fifty per cent version. cerned evidence, pleading, or practice. This Just how good or bad this is we cannot tell table is the basis for the statement referred because we have no record of the proportion to. Nearly one-third of the points included of errors in practice which do not get into in it are in evidence or pleading, regard- the reports. Granting, however, that mis takes are too numerous to be creditable. 117 American Bar Assn. Reports, 367 (1894).