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The Green Bag

rules should be reviewable only for abuse of discretion. To quote from a discussion of this matter on another occasion:“1 “This principle is recognized to some extent in practice, as it stands. The order in which testimony shall be adduced, whether a party who has rested shall be permitted to withdraw his rest and introduce further testi mony, the order of argument, in most juris dictions, the time to be devoted to argument, and many other matters of the sort are left to the discretion of the trial judge. The reason is that such rules as exist upon these points exist in the interest of the court and of public time and not in the interest of the parties. But there are other rules resting upon the same basis which, unhappily, are not dealt with in the same way. This is notably true in the law of evidence. Many rules of evidence are in the interest of expe dition and saving of time, rather than of protecting any party; prejudice to the dis patch of judicial business is the objection rather than prejudice to a party. In such cases how far the rule should be enforced in any cause should be a matter for the discre tion of the court in view of the circumstances of that cause.

Some courts, indeed, recog

nize this. But for the most part it has been assumed that there must be an absolute rule or no rule in these cases also, as if substantive rights depended upon them. With respect to all other rules of procedure, we should make nothing depend upon them beyond securing to each party his substantive rights —a fair chance to meet his adversary's case and a full opportunity to present his own. No party should be permitted to defeat his opponent, or to throw him out of court and compel him to begin anew because of them. He should be able to use them simply to obtain a fair opportunity of meeting the case

against him and of making his own case.

For

example, in case of a variance, the inquiry should be, did the party who complained ask for time or opportunity to meet the point of which he was not fairly apprised and for which he was not prepared, and was he given a fair

chance to meet it? Where no other advan ‘tage could be had than securing a fair oppor tunity to meet proof adduced without fair notice, very few complaints of variance would ‘1 Some Principles of Procedural Reform. 4 lll. Law Rev., 388, 400-401.

be made. What this would mean may be understood by turning to a paper on ‘Taking Advantage of Variance on Appeal,’ in which it took twenty pages and citation of 338 de cisions of the courts of this state to set out the mechanics of the subject.""

Put simply, this means that rules intended to save time and advance

the business of the court are not to be permitted to waste time and obstruct the business of the courts by becoming the subject of contest between the

parties, and that rules intended to pro tect the parties are to be available to that end only. The objection urged is that it is unsafe to give discretionary power to judges and that the discretion they now have should not be extended. But the judge need have no more dis

cretion than he has now, with respect to rules intended to protect the parties,

and yet the parties may be limited to use of those rules in such way as to secure fair notice of the case against

them and fair opportunity to present their own case, and nothing more. Without giving the trial judge any

additional power, we may insist that parties use procedural rules, not to lay the foundation of an appeal in the future, but to obtain a substantial right in the present.

Accordingly, I should propose the following proposition as one by which those who draft a practice act should be guided:—

III. Rules of procedure intended solely to provide for the orderly dispatch of business, saving of public time, and maintenance of the dignity of tribunals should be distinguished carefully from rules intended to secure to parties a fair opportunity to meet the case against them and a full opportunity to present their own case; rulings upon the former class should be reviewable only for abuse “Kales, Advantage of Variance Appeal, 2 Ill Takin Law.gRev., 78.

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