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often cloaks or suits of armor which disguise the real issue, or like the matador's red cloak, serve to infuriate the opposing bull. It is shown by the frequent refusal to give any further information, and the appeals from orders for bills of particulars, or orders to make more definite and certain, or from demurrers. It seems necesary for the present-day lawyer to deal in wary words and forms that are over grave.

Suppose that the function of the lawyer in this respect were taken over by the court, the pleadings would have two objects: one to apprise the other side as to what the facts were in dispute, and secondly, to frame the issues clearly before the tribunal. At present the first object is not usually accomplished. It is easier to answer by denying all, and it is a better policy to do so. A trial would seem to be a free-for-all fight. The skilled lawyer says it is as easy to fight about all matters as about one or two particular matters, and if the plaintiff be compelled to prove a great deal, he may become so exhausted when he reaches an essential issue, he will fail. If, however, the court assumes the direction of pleading as it practically does in some courts of the country, there would be less danger of surprise. The court could practically say: "Now on this issue are you seriously going to dispute the fact? As a reasonable man, are you denying it?" If he answers "Perhaps it is so, but, let the other side prove it," it ought to be possible for the court to throw his technical objections out of the window.

Again if the definition of issues were distinctly a court rather than a partisan proceeding there would not be so much floundering about before trial. In modern legislative bodies there is usually a bill-drafting department where legislation may be put in legal and technical form. So in courts should there be Masters or at least trained clerks whose duties would be to frame issues.

The preparation would proceed not in the usual haphazard way. The evidence would not be procured or produced in court according to the financial ability of the client. If it be once admitted that the public should bear the expense of private suits, it is reasonable that the public should also assume all costs for a final determination in the best possible manner. If the court really wants the truth, let it be obtained by a trained corps of investigators.

The judge occupies a position so high that he is supposed to be virtuous and elevated to the last degree, so that the temptation is for him to become inhuman or non-human. Often because he has

a larger perspective and a wholesome contempt for the procedure, he obtains a truer point of view. Although he does not accept his position in a spirit of resignation, yet he makes the best of the formalism of court procedure.

His position would be more reasonable if the courts were reconstituted, as "justice factories." He would not find himself as the representative head of a business for which he is apparently though not actually responsible.

With the jury to decide the law in the case, and the judge to determine the facts there might also be justice. The laws being only crystallized common sense it might be that no one would be better able to enforce them than twelve average men. The present function of the jury to determine facts through testimony is hardly the best method. First, they are not accustomed to ascertaining facts. They have not heard a great quantity of witnesses, and they are not experts in perjury. Secondly, they are not accustomed to weighing one bit of evidence against the other. Their minds have not been trained either to remember all the evidence or for a logical discrimination as to its importance. They are apt to assume some parts as of undue importance and others as having little bearing.

Were the judge to ascertain the facts, at least there would be an expert. Technically the prisoner might be guilty of a crime. The judge would find all the facts, but the jury would take into account the extenuating circumstances, the prisoner's youth, the possibility that his life might be ruined by imprisonment, and would pronounce sentence accordingly. Practically that is what happens. In an accident case the jury takes into account the plaintiff's lawyer's bill, if they award any damages. Most verdicts are rendered in modern courts on this line. The jury has sworn to weigh the evidence and only decide according to the law as laid down by the judge. They usually apply the law of common sense and decide the facts according to the judgment that they know will be rendered.

The imaginative genius who will formulate a system of courts and of court procedure to meet modern conditions will answer one of the grave questions of the age. The superman, realizing the inadequacy of the survival of an ancient ordeal by battle as a means of arriving at truth, will devise a machinery and organization that will change the courts into places of impartial investigation.

With the judge and the court freed from technicalities, they

may engage detectives, investigators, official experts or use any means available to determine facts or law. They would then no longer present the picture of quiet spectators at a contest when they should be the active means of a judicial investigation. Is this Utopia? Then would I be a citizen thereof.

ADMINISTRATION OF BUSINESS AND DISCIPLINE BY

THE COURTS

BY JULIUS HENRY COHEN,

Chairman, Committee on Unlawful Practice of the Law, New York County
Lawyers' Association; Author of The Law-Business or Profession? and
Member of the Group for the Study of Professional Problems.

In a Memorandum on the Report of the Board of Statutory Consolidation on the Simplification of Civil Practice in the State of New York, submitted to the legislature of the state of New York by the Lawyers' Group for the Study of Professional Problems, the importance of radical change in the administration of justice was emphasized and at least a dozen points thoroughly canvassed. This paper will be devoted to the consideration of but two of the points covered in the memorandum.

A. THE NECESSITY FOR EFFECTIVE CONTROL OF THE BUSI-
NESS OF THE COURT

The draft of a proposed Judiciary Article for the Constitution of the state of New York, prepared by the same group and presented to the Constitutional Convention of 1915, contained the following:

Section 4. The administrative business of the court shall be conducted by a board of assignment and control composed of the chief justice and the presiding justices of the several divisions of intermediate appeal. Every power adequate to that end is conferred upon it. It shall promulgate rules for conducting the judicial business of the court, and common forms for use therein. In the absence of action by the legislature it may prescribe rules of evidence. It shall from time to time prescribe the terms and parts of the court, define the jurisdiction of the divisions and parts, and assign justices to service therein.

The theory of this provision is that "We should apply to our (judicial) machinery the ordinary tests of efficiency that men apply in the business field. Does the thing work with the least waste of motion, and if it does not, where can motion be saved?” 1

In every business enterprise authority for supervising the administration of the business is centered somewhere. The details of organized management-executive and factory-such as 1 Memorandum, p. 5.

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routing of the work, are designed by modern efficiency engineers with the purpose in view of economizing motion, of avoiding duplication of effort, and of concentrating energy in those places when and where it is most required. In such public quasi-judicial bodies as interstate commerce commissions, public service commissions, workmen's compensation commissions and the like, the chairman or the secretary is usually the administrative head and arranges things precisely as in a large business enterprise the manager arranges the organization machinery so as to dispose of the business with the least possible waste of time and energy. The signatories to the memorandum submitted to the legislature expressed the belief that in New York state the machinery for the administration of justice was "as archaic a vehicle as the stage. coach, and as wasteful as pumping water by hand" and urged that the legal profession "be awakened from its drowsy contentment and apply its genius to the betterment of its own.

working machinery." 2

There is some difference in detail between the plan proposed by this group and the plan outlined by the American Judicature Society. In the latter plan the administrative business of the court is to be in the hands of the chief justice, a procedure successfully put in practice by the Municipal Court in Chicago. In the Group's plan the administrative business is entrusted to a judicial board, rather than to a single individual. In so large a state as New York, with a different local problem for each judicial department, it seemed wiser to vest such administrative power in a board composed of the chief justice of the court of highest resort and the presiding justices of the several divisions of intermediate appeal. But whether the Chicago or the New York method be applied, is there any doubt of the soundness of the principle that responsibility and power for operating judicial machinery should be centered in a single executive authority?

B. THE EXERCISE OF DISCIPLINARY POWERS BY THE COURT Section 9 of the proposed Judiciary Article provided:

The justices of the court shall annually elect a committee of discipline composed of five justices and two members of the bar who shall have been admitted

2 Memorandum, p. 5.

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