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The great bulk of litigation is confined to the civil trial courts, that is, to courts for the trial of ordinary causes between man and man. It also has its seat in the trial courts of the States, for not only is the judicial power of the United States confined by the Constitution within narrow limits, but these have been made still narrower by the action of Congress from time to time.

Most lawsuits never get to trial. The defendant generally has no defense, and is well aware of it. The suit is brought to obtain security or force a settlement. He employs no lawyer and lets things take their course. The result is a judgment against him for default of appearance; for if one who has been duly summoned to court to answer to a demand fails to attend and answer, the court assumes that there is no answer that he could make, and disposes of the cause on such evidence as the plaintiff may produce. On the other hand, the plaintiff often does not care for a judgment. He has become satisfied that, if he got one, he could not collect it, or he has availed himself of the suit to secure a compromise of the matter in demand on satisfactory terms. In such case, or if, after bringing an action, he becomes convinced that he cannot maintain it, he withdraws it, or if the defendant insists, suffers a judgment to go against him, called a nonsuit.

In some States the writ or process by which the action is begun must be accompanied by a full statement of the particular nature of the plaintiff's claim. In others this is not required, and such a statement is only furnished when specially ordered by the court. If the case goes to trial on the merits, it will be on such a statement furnished by the plaintiff, and on some paper filed by the defendant by way of answer. Occasionally these pleadings, as they are called, are such as to call out further statements or claims by way of reply and rejoinder. Their form is now generally regulated by statutes, and is much the same in most of the States, being based upon a system known as "Code Pleading," which originated in New York about the middle of the nineteenth century. It is simpler and less technical than the system under the common law which it replaced.

If the defendant has any objections to the maintenance of the suit, on such a ground as that it is brought in a wrong court, or a wrong way, these are first disposed of. Then, if he asserts that the plaintiff on his own showing has no case, or if the plaintiff asserts that the defense set up is insufficient on its face, this being a question of law, the judge decides it without the aid of a jury. When, however, the facts are in dispute, a jury must be called in, if either party claims it, in an action not of an equitable nature, when the matter in controversy is one of any considerable amount.

In this country we adhere to the old common law mode of taking exceptions to the legal sufficiency of written pleadings. This was by filing a paper called a "demurrer," in which the particular objections were set out, unless, as was frequently the case, they were so fundamental as to be apparent at the first glance. In many States, however, the objections must always be particularized. In England demurrers are no longer used. Her Judicature Act of 1873 put an end to the common law system of pleading, reconstituted her whole method of judicial procedure, and authorized the judges to make rules and orders from time to time to adopt the new scheme to convenience in practice. One of their orders, passed in 1883, abolished demurrers. In place of them, the party desiring to have the benefit of points of law arising on the face of the pleadings may state his point to the court and ask to have it set down for separate argument before proceeding to a trial of the cause on the facts. American lawyers are not satisfied with the reasons which led to this change. They were that the old practice made it a matter of right to claim a special hearing on a law point, while the new order would leave it to the discretion of the judge. The English judges are few and able. Such a plan may work satisfactorily under their administration, but it might often lead to useless delays and expense if introduced in a country where judges are so numerous and of such different qualifications as is the case in the United States.

Our trial courts are now generally held by a single judge. Until the latter half of the nineteenth century it was not uncommon to have three judges sit together in county or city courts. One of them would be a lawyer and the others not.[See Chap. VIII.] In cities the two side judges were generally aldermen. A tribunal thus constituted is better adapted in some respects to trying questions of fact than a single judge. It is a jury of three acting by a majority. But for the conduct of a jury trial it is unwieldy, slow-moving and uncertain. In most cases any question of law or legal practice will be virtually decided by the presiding judge, but he will usually pause to go through the form of consulting his associates. Occasionally they will overrule him, and in such case it will be apt to be by a misunderstanding or misapplication of law. The expense of three judges, however moderate the compensation, has also weighed in favor of an abandonment of the system. It naturally results in paying too little to the chief judge, and too much to the others; and always costs more than it would to pay one man a sufficient salary.

We have not the need of several judges to hold a trial court, which is felt in many countries. They use them for a purpose which our juries supply. For similar reasons Americans have not seen any occasion for organizing special courts, such as are the German _Gewerbegerichte_ and _Kaufmannsgerichte,_ to try special classes of causes. A jury of twelve will be apt to contain some men who will adequately represent those interested in any ordinary industrial or commercial controversy.

Petty suits not of an equitable nature must generally be brought before a justice of the peace, who disposes of them himself, both as to matters of evidence and fact, but subject to an appeal to a higher court in which a jury trial can be had. In some States he can summon in a jury of six and leave the facts to their determination. The pleadings before him are usually in the same form as in the higher courts.

In jury trials of civil causes the judicial function is, so far as possible, divided into two distinct parts. All questions of pure law are decided by the judge alone. All questions of pure fact are decided by the jury alone. All questions turning on the application of the law to the facts are decided by the jury under instructions from the judge as to what applications of the law it would be competent for them to make under the particular circumstances which they may find to have existed. The judge also has a large discretionary power in minor matters arising in the course of the suit. It is for him to say when it shall be tried; whether the written pleadings are in proper shape, and if not whether they may be amended; and in what order and within what limits the evidence may be introduced.

No countries in the world have so artificial a set of rules of evidence as England and the United States. This is because in no other country is the right to a jury trial so extensive. Many of these rules date back to the early history of the English common law. It was a time of general illiteracy. The ordinary juror could not read or write. His powers of reasoning and discrimination had had little or no cultivation. It was thought dangerous to allow him to listen to any evidence that was not of the clearest and best kind. It was thought necessary to bring all witnesses in person before him and let him hear their voice and look into their faces in order to give him the fullest possible opportunity to determine whether their testimony was worthy of credit. But while our rules of evidence were devised for jury trials, they are applied with equal rigidity in all trials. A jury may be waived; a single judge may hear the cause; and yet he must rule out of consideration whatever would have been inadmissible if it had been made the subject of a jury trial.

Much that in other countries is helpful in reaching a just conclusion is in this manner shut out in American courts. A man of the highest character, for instance, may say before twenty listeners that he saw a certain person shoot and kill another, and state how the whole thing happened. The person thus accused is sued for damages under a statute permitting such a remedy by the representatives of the man shot. Before the trial the witness of the act dies. He was the sole witness. There is no other testimony to be had. Under our system of practice, those to whom the statement was made cannot be allowed to testify to it. Such testimony would be "hearsay." It would put before the jury two questions, first whether such a statement was really made, and then whether, if made, it was true. The law of evidence says that they ought not to be perplexed by questions upon questions.

The tendency of American legislation of late years has been strongly toward removing some of these artificial bars to getting at the truth. The common law thought it dangerous to allow a jury to hear any witness not under oath, nor under such an oath as implied his belief in the existence of a God, or any witness having a pecuniary interest, in the event of the cause. An atheist or an agnostic could not testify. The plaintiff and the defendant could not. These restrictions have been almost everywhere repealed.

The trial judge has also, and necessarily, a large discretionary power in excluding testimony which has only a remote bearing on the case, and in limiting or extending the examination of a witness so as on the one hand to prevent needless repetition, and on the other to get out the truth and nothing but the truth. He has similar authority to restrain the arguments of counsel within reasonable limits.

A trial judge suddenly called upon to make a ruling on some point of law in the progress of a trial may make a wrong one. If so, he may have an opportunity to correct it at a later stage of the proceeding. He has admitted evidence which should have been excluded. In his charge to the jury he may instruct them to disregard it, and his error will thus be cured. He has excluded evidence which should have been admitted. Before the case is closed he can change his ruling and allow it to come in. But so long as any ruling stands unchanged, whether it is in accordance with law or not, it is the law of the case for the purposes of the trial. Counsel may endeavor to procure a reconsideration of the question, but they cannot ask the jury to adopt a different view from that taken by the judge. Their only remedy is by a motion for a new trial, after the verdict, or proceedings in error before a higher court.

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Trial courts generally sit during a greater number of hours in the day than appellate courts. This is particularly true when they are held for short terms in a country shire town. In the larger cities where they sit during a large part of the year they generally have established hours from which they rarely depart, such as from ten in the morning to five in the afternoon, with a recess of an hour for lunch or dinner. Formerly nine o'clock was a more common hour for opening court. In New York in 1829 the sittings were from eight to three, when there was a recess of two hours for dinner, and then from five till some time in the evening, occasionally as late as ten.[Footnote: Kennedy, "Memoirs of William Wirt," II, 231.]

The modern tendency everywhere is toward a shortening of the hours of daily session, especially when an official stenographer is employed.

The clerk keeps a docket-book in which each case returned to court is entered and numbered. The entry reads thus:

  John Doe Smith

    vs.

  Richard Roe Jones.

Doe is here the plaintiff and Smith is the attorney who brought the suit for him. Roe is the defendant and Jones is the attorney who appears in his behalf. If there be more than one party on either side the words _et al._ will be added, signifying as the case may be, _et alius, et alii_ or et alium,_ or should there be three or more defendants, _et als_, signifying _et alios_.[Footnote: Another book is kept for criminal cases, which are docketed as "The State _v._ John Doe," in others as "The People _v._ John Doe," and in the federal courts as "The United States _v._ John Doe."] From this docket trial lists are made up for each term or session of court. Assignments for trial are sometimes made by the court and sometimes arranged by the bar subject to the approval of the court. Several cases are commonly set down for each day, so that if one falls out another may be ready, and in every case so assigned the parties must be prepared at their peril to appear and proceed at any minute when called upon.

In courts having a large docket of cases it is customary to set apart one day in the week for the disposition of incidental motions and for arguments on points of law.

When a case is called for trial the plaintiff's counsel opens by stating its nature and the main facts as set out in the declaration or complaint which he expects to prove. Sometimes the pleadings on both sides are read at length. The plaintiff's witnesses are then examined orally, after the examination of each an opportunity being given for his cross-examination by the other party. The testimony of witnesses whose attendance cannot be had, which may include any living out of the State (or, in the federal courts, over one hundred miles from the place of trial), or who are infirm or sick, may be secured by previously taking it down out of court in the form of a written deposition, under oath, before a magistrate. In such case the adverse party must have such notice as to enable him to be present and cross-examine the deponent, or to file written cross-interrogatories. Depositions are received in the same manner and subject to the same objections as oral testimony. In cases in equity a considerable part of the testimony is generally presented in written form, either by depositions of the kind described or certified by a special officer appointed by the court for the purpose, who may be called an "examiner."

When the plaintiff's case has been thus presented, his attorney announces that he "rests." The defendant's attorney then states what he proposes to prove, and produces his evidence, at the close of which the plaintiff has the opportunity to meet any testimony so produced as to points not covered by the plaintiff's case as presented "in chief," by rebutting testimony. Should there be any new point brought out in the latter which the defendant had not anticipated in presenting his case (which rarely happens), he may now be allowed to introduce further testimony as to that.

At the close of the evidence the plaintiff's counsel argues for his client; the defendant's counsel replies; and the plaintiff's counsel is then heard in answer to anything which has been said in behalf of the other side.

If the trial has been had before a judge without a jury he then commonly takes the written pleadings and makes up his decision at his leisure; but if the case is plain may give final judgment on the spot.

If the trial has been before a jury the parties argue as to facts in dispute to them, but as to the law upon these facts to the court.[Footnote: See Chap. XII.]

In some States the arguments on the latter question are made before those on the former, and written requests or "prayers" for instructions to the jury as to the law are submitted to the court, upon which it passes before the jury are addressed. In most States there is no such division of argument; judge and jury are addressed in turn during the same speech, and counsel first know what view of the law is taken by the court when the judge gives his final charge.

In every jury trial, after all the evidence is in and the arguments concluded, it is the duty of the court to instruct the jury as to what the precise controversy is and what disposition of the cause it would be permissible for them to make. If in view of facts which are undisputed by either party there can be in law but one conclusion, the judge should direct them to render a verdict accordingly. But if the facts might fairly be found as they are claimed to be by either party, he instructs them as to the law applicable to the facts so claimed by each. He can, at common law and by the practice in most States, give his own opinion as to the weight of evidence on any point in controversy.

The common law requires unanimity on the part of the jury before they can return a verdict. If it cannot be had they report a disagreement, and the case stands over for another trial.

If they agree upon a verdict, it must, to be effective, be accepted by the court. This acceptance is ordinarily a matter of course, but if the verdict is plainly contrary to the evidence or to the law as laid down in the charge, it may be set aside and a new trial ordered. If it gives damages which are plainly excessive, the judge may set it aside, unless the prevailing party enters a _remittitur_ of a certain amount, that is, formally stipulates on the record that the verdict shall stand only for such sum as the judge may have thus indicated to be what seems to him to be the utmost limit that ought to be allowed. In some States, if the verdict is unsatisfactory to the judge, though not so manifestly against the evidence that he would be justified in setting it aside, he may return the jury to a second consideration of the cause.

When a verdict is accepted judgment is rendered in accordance with it. To this rule there are, however, certain exceptions. It sometimes happens that a verdict is returned for a plaintiff whose case as stated in his pleadings is one which in law is no case; the defendant having failed to take this objection and made his contest only on the facts. He then can ask the court not to render any judgment upon it. This is technically called a motion in arrest of judgment. Again, the verdict may be rendered, by reason of the state of the written pleadings, on some immaterial point, in favor of one party, when there are other points of controlling importance in favor of the other, on which it has been admitted that he is in the right. In such case the party against whom the verdict is rendered may ask for judgment in his own favor notwithstanding the verdict.

Verdicts are ordinarily given directly for the plaintiff or the defendant. Printed blanks for such verdicts, one headed "plaintiff's verdict," and the other "defendant's verdict," are often handed to the jury when they retire, to choose from according as they may find the facts. Such a verdict is called a general verdict. Occasionally one of a different form is returned at the request of counsel and by the permission of the court. This is termed a "special verdict," and sets forth the particular facts as found by the jury in detail, without finding the ultimate issue for either party. This is only proper when such a finding would have been simply a legal conclusion from these facts. A special verdict leaves it to the court to apply the law and render judgment as that requires.

In many causes the testimony is all taken out of court, before some officer or arm of the court, who only reports his conclusions from it as to the matters in controversy. This is a common practice in equity, the case being sent to a "master in chancery" for this purpose. In cases of a common law nature the consent of both parties is generally required; but with that any cause may be disposed of before an arm of the court commonly termed an "auditor," "referee" or "committee."

The report of such a hearing sometimes is confined to the facts which are found to have been established. In other cases it may extend to a provisional decision of questions of law arising on those facts. The ultimate decision of any question of law is always for the court, and if it accepts the report it is its duty to draw the proper legal conclusions from the facts established. As to whether the report shall be accepted, and as to the legal questions arising upon it, the parties have a right to be heard in court. Improper or irregular conduct on the part of the officer making the report may be shown as a cause for rejecting it. If it is accepted the facts found generally stand as conclusively established.

Equity causes are generally tried before a single judge, who decides all questions both of fact and law, proceeding in the same manner as in a common law cause in which a jury has been waived.