Page:The Green Bag (1889–1914), Volume 21.pdf/82

 Recommendations as to Judicial Procedure There, for example, the verdict of the jury as to the quantum of damages is final in most cases, and if a new trial is ordered, it is ordered on the other issues, leaving the amount originally fixed by the jury to stand as the meas ure of damages, unless some erroneous ruling on the law has been made which, in the opinion of the Appellate Court should change the verdict on this point. All we ask the Appellate Court to presume is that the jurors are rational men, who render a verdict according to their judgment of the merits without regard to the technical points of evi dence, or nice legal distinctions em bodied in requests to charge, to which counsel have come to attach undue importance. If the practice which has already been referred to of submitting special ques tions of fact to the jury were more generally adopted, the Appellate Court would be enabled to order final judg ment according to its judgment upon the law, without putting the parties to the expense and delay of a new trial. This again would enable an immediate review to be had in the Court of Appeals. Under our present constitution, that court can deal only with questions of law. To raise these upon the record, separated from questions of fact, is, under the common practice, a very difficult matter. The conditions under which the Court of Appeals must ex amine the record tend in most cases to disable that Court from considering upon the merits the controversy between the parties. I believe that it is in the inter est of the judges themselves, as well as of counsel and litigants, that this prac tice should be changed. The constant limitation of the judicial mind to the consideration of the solitary question whether or not reversible error has been committed, must necessarily tend to

65

narrow the mind and make it more technical. It puts a burden upon the judges which no man should have to bear. The whole training of a lawyer in this state at present tends to make him more technical and to distract his attention from the merits of causes. The little pocket code of 473 sections, which was in force when I came to the bar in 1861, has swollen to a big volume of 3441 sections. I am persuaded that the reform which is recommended by the American Bar Association, and which I sincerely trust will have the approval of this Association, and will finally be come embodied not only in the statutes of the United States, but in those of the state of New York, will make a radical change in this respect. When techni calities cease to affect the result they will no longer be resorted to, and the time will come when the public confi dence in the administration of justice, which has been rudely shaken many times by the decision of important cases upon technical points, and not upon the merits, will be restored, to the benefit alike of the citizen and the lawyer. BIBLIOGRAPHY Reference may be had to the following publications:— Message of the President, December, 1906. Article of Secretary Taft, North American Review, June, 1908; article 15 Yale Law Journal 1; Abuse of Procedure, Illinois Law Review, November, 1908, p. 231. Article of Prof. John H. Wigmore, Columbia Law Review, vol. 3, p. 433, November, 1903. Ad dress of Hon. Chas. F. Amidon, Judge of the U. S. District Court for North Dakota, before the Minnesota Bar Association (Proceedings, 1906, p. 63, reprinted in the Outlook of July 14, 1906, and in 40 American Law Review, 681). Articles of Everett P. Wheeler on Re form in Criminal Procedure, Columbia Law Review, 1904, vol. 4, p. 356; and The Abuse of New Trials, Michigan Law Review, Feb ruary, 1905. Law Reform, address by Samuel