An address delivered by Judge Michael L. Fansler of the Indiana Supreme Court at the mid-winter meeting of the Indiana State Bar Association, January 25, 1941

Fansler, Michael L.

English

Indiana University Bloomington Maurer School of Law

Indiana Law JournalVolume 16 | Issue 3 Article 12-1941Some Public Reactions to Procedural MethodsMichael L. FanslerIndiana Supreme CourtFollow this and additional works at: http://www.repository.law.indiana.edu/iljPart of the Courts CommonsThis Article is brought to you for free and open access by the Law SchoolJournals at Digital Repository @ Maurer Law. It has been accepted forinclusion in Indiana Law Journal by an authorized editor of DigitalRepository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationFansler, Michael L. (1941) "Some Public Reactions to Procedural Methods," Indiana Law Journal: Vol. 16 : Iss. 3 , Article 1.Available at: http://www.repository.law.indiana.edu/ilj/vol16/iss3/1INDIANALAW JOURNALVolume XVI February, 1941 Number 3SOME PUBLIC REACTIONS TO PROCEDURAL METHODSMICHAEL L. FANSLER*Your President has indicated that I am to deliver an ad-dress, but, since I have no prepared manuscript, what I haveto say is better characterized perhaps as a discussion. Thesubject is highly important to the legal profession, and Idiscuss it as a member of the profession and not as a judicialofficer.The principal business of our profession is to assist andparticipate in the administration of justice. Ours is a govern-ment of law and not a government of men. The laws whichgovern us are administered and enforced by free and inde-pendent courts. The members of our profession are officersof the courts, charged with the responsibility and duty ofassisting the courts in administering justice.Reference is frequently made to the inherent powers ofthe courts, but we recognize that, in strictness, courts haveno inherent powers. The courts and our whole legal systemexist only at the will of the sovereign. The courts have suchpowers only as have been delegated to them by the sovereign-in this country the sovereign people. The existence ofour profession as we have practiced it is dependent upon asystem of courts and laws as they have existed in this coun-try at the will of the sovereign, and it is well therefore that* An address delivered by Judge Michael L. Fansler of the IndianaSupreme Court at the mid-winter meeting of the Indiana StateBar Association, January 25, 1941.(277)INDIANA LAW JOURNALthe profession and all who are interested in the professiontake stock occasionally to see how our credit is, and how weand our system are regarded by the sovereign people.Unless we do the tasks that have been assigned to usreasonably well, unless through the efforts of the benchand bar the courts are operated in a manner satisfactoryto the public, it is only reasonable to assume that the powersand authority delegated to the courts may be withdrawn.The successful operation of a government of laws must ofnecessity depend upon the efforts of the members of ourprofession upon the bench and at the bar. If with theirtrained skill the system cannot be made to work successfullyand satisfactorily, it surely cannot be expected to function inthe hands of the unskilled, and so a sufficient degree of publicdissatisfaction and impatience with the manner in which wedo our tasks might possibly result in the substitution of agovernment of men for a government of laws. This wouldbe no innovation in the world today, where only a few peoplehave the privilege of appealing to independent courts throughmembers of the legal profession, free to assert the legalrights of their clients even against the claims and conten-tions of the government.So it is important to know: Are we in good repute? Isour service satisfactory to the public? There is much evi-dence-some positive and much negative evidence-that, inso far as the substantive law is concerned, the service hasbeen satisfactory. At least there has been but little com-plaint. The substantive law to which I refer is the commonlaw as it has been interpreted by the bench with the assist-ance of the bar as distinguished from substantive statutorylaw. There may be some evidence of occasional dissatisfac-tion in isolated cases of controversy between individuals andthe government, but, on the whole, and in so far as theinterpretation of the substantive law involves the rights ofmen among themselves, it seems safe to say that the evi-dence strongly indicates that the task has been performedto the satisfaction of the sovereign.But not so of procedural methods-the adjective law.There is ample evidence that down through the ages therehas been dissatisfaction with our profession and with thecourts in their administration of the law. Literature rec-SOME PUBLIC REACTIONS TO PROCEDURAL METHODS 279ords complaints about the law's delay as early as two thou-sand years ago. But it is not only delay that has given riseto criticism. At times it has been believed that controversyconcerning technical procedural rules has absorbed the at-tention of the bench and bar to the exclusion of the meritsof causes. It has been suspected that litigation has beenmade a game in which skill in technicalities was given moreconsideration than the substantive rights of the parties, andin which the result was controlled too often by the ability ofcounsel rather than the merits of the case.It cannot be disputed that our profession and the courtsare designed to perform a service, and not to play a gameof skill for our own amusement or edification. Difficultquestions involving fine distinctions give rise to justifiablecontroversy and contention concerning questions of substan-tive law, but perhaps too often we are inclined to carry thecontroversy, the fine distinctions, the matching of skill, intothe mere rules designed as an aid to a determination of thecontroversies concerning the substantive questions. The lay-man quite properly considers that rules of procedure aredesigned and intended merely to expedite the determinationof causes upon their merits, and, when the case is finally dis-posed of upon some question of procedure, it is some timesthought that in the controversy concerning the operationof the machinery of justice the profession has lost sight ofthe necessity of administering justice.Public reaction has not always resulted in condemnationof the system. There is evidence of a realization that thecourts and the profession have endeavored to construct pro-cedural machinery that will expedite decisions upon the mer-its. Quite often the public mind has indicted not the pro-fession as a whole, nor the courts, nor even the rules of pro-cedure, but only certain ones in the profession, certain prac-titioners of the law that the public considers as having soughtto pervert the proper purposes and ends of procedural law tothe defeat of justice. In the Supreme Court Law Library Icame across "The History and Practice of Civil Actions," byLord Chief Baron Gilbert, printed in London in 1779. I quotefrom the preface:"At the Institution of the Court of Common Pleas, (aswell as of all other Courts of Justice) there was establishedINDIANA LAw JOURNALa sure Method or Form of Practice, whereby the Procedureof the Plea should be conducted till it met with a final De-termination: This Method' or Form of Practice, however con-sonant to the Rules of Justice, was not altogether free fromInconveniences; for by the artful Contrivances of evil-dis-posed Persons, the Authority of the Court was too oftenturned to Oppression, and its Indulgences to Delay and Vex-ation: This obliged the Justices of the Court to regulate andamend the Practice in many Points, as they saw Occasion;nay, even the Legislature have sometimes been forced tointerpose their Authority to put a Stop to and remedy suchMischiefs as occurred in the Practice."You will note the words, "a sure Method or Form ofPractice." From the beginning there was an effort to makethe practice simple and sure and beyond controversy, but itseems that the ingenuity of lawyers will not permit. Latelythere has been much discussion of what is said to be theinherent powers of courts in relation to rule making andprocedural methods. Perhaps there is room for controversy-the kind of controversy that makes the public impatientwith us. And still we know that some controversy is un-avoidable. We must have rules and they must to a degreebe adhered to, and still it is apparent from the evidence thatif the controversy is carried to what the public considers un-reasonable lengths, our good relations with the public sufferand there is impatience with the courts for permitting itand with the profession for persisting in it. It has often beensupposed that our rules of practice and procedure had grownup gradually; that they developed with the common law inEngland; that they were announced and declared by thecourts; and largely this is true. But in the quotation fromwhich I read, which deals with procedure from the very be-ginning, it seems to have been recognized that the Legislatureperhaps has some authority in respect to procedure.It all depends, of course, upon what powers the courthad from the sovereign. Anciently it seems to have beenthought that the Legislature had some power from the kingto regulate the rules of practice, but through it all thereseems evident a feeling that primarily it should be left tothe courts. Perhaps it was thought that they were betterSOME PUBLIC REACTIONS TO PROCEDURAL METHODS 281equipped to do it, but that if they did not do it satisfactorilythe Legislature might intervene.At the time of the preparation of our present Constitu-tion in 1851 the relations of our profession to the sovereignpublic were not very good. I think it may be said that ourpublic relations were bad. In the Constitutional Conventionan article was proposed providing for the simplification ofthe practice in courts, doing away with the distinctions be-tween law and equity, doing away with common-law forms,and providing that any voter of good moral character couldpractice law. They were proposed as one item at first, butafterwards the provision concerning the practice was separat-ed. From the debates we note that the lay public believedthat the few well-trained, well-educated, and skillful lawyerswere able by technical procedural means to out-maneuver theaverage lawyer in the courts to such a degree that that whichseemed obviously just and fair and reasonable was defeatedand justice denied. So they were going to change all of that.They were going to make the practice simple and sure, justas anciently it was intended that there should be a sure way.There were long and vigorous debates. The older and moreseasoned lawyers resisted vigorously. They contended thatthe rules of practice were clear and simple; that they werejust misunderstood. During the debates one member said:"A more ridiculous system for the administration of justicenever was devised by man or men, than the system of thepractice of the common law of England, and of the UnitedStates. (Applause) : * * * * * There is no necessity forthis at all; and I would swap the whole of these absurditiesaway, and open the road to the pure fountains of justice soplain, that 'a way-faring men, though a fool, need not errtherein.'" To illustrate the unreasonableness of the formsof action, he said: "A shall go to B and steal his watch fromunder his pillow, or take it out of his pocket, and run awaywith it. All of you would say that he had stolen the watch;but the common law says that B may waive the tort, andsue A in an action of assumpsit. In such a case, his declara-tion would be to this effect: 'I, B, complain of A, that I soldhim a watch of the value of a hundred dollars, and he re-fuses to pay for it, and I want a judgment,' &c. This is thepractice, and B may recover in such a suit. But what doesINDIANA LAW JOURNALA say in reply? He comes into court and pleads "non- as-sumpsit'-that is, that he did not undertake to pay for thewatch. Now look as the position in which our mode of prac-tice places these parties. Everything that the thief has saidis true, while everything that the plaintiff has said is a lie.That is the fact. The plaintiff is compelled to tell a lie, andthe man who has committed the felony tells the truth."There was great applause and cheering. Senator Kelso un-dertook to explain that they misunderstood it all. But some-how the sovereign people as there represented did not thinkthey misunderstood. They thought it absurd and unreason-able and they wanted it changed.Now, prefacing his remarks, the speaker above referredto had said: "I do not undertake to repudiate the pure prin-ciples of the common law. I am not for abrogating that lawwhich is a protection to us all. It is not the spirit nor thepolicy of the law, which is our security while awake andasleep * * * * * that I would seek to change. I would nottouch one scintilla of that law; but I would make the roadto the court of justice open and plain, through which all maysee the object before them, and upon which all may travelwith unerring certainty and safety." They were satisfiedwith the substantive law, but they were highly dissatisfiedand impatient with procedural methods, and they intendedthat they should be corrected.Not long ago there was a bill, known, I believe, as theLogan-Walter bill, pending in Congress. As I understand it,the bill dealt with procedure by which the courts might re-view or scrutinize the acts of administrative boards to dis-cover whether they had acted lawfully. Now, there seemsnothing new in this, that is, in the jurisdiction of courts toscrutinize the acts of ministerial bodies to see that they haveacted within their jurisdiction, and, as I understand it, thebill dealt merely with procedure. The bill was passed by asmall margin, and was vetoed by the President. The objectionurged to it in the Congress, and by the President, was thatlawyers representing certain interests would, through delaymade possible by procedural methods in the courts, so delaythe activities of the ministerial boards and commissions in-volved that it would in effect sabotage their work and de-stroy their usefulness. Isn't that what they were saying in282SOME PUBLIC REACTIONS TO PROCEDURAL METHODS 283the preface to the old book upon the history of procedure?"The artful Contrivances of evil-disposed Persons." Not adirect condemnation of courts or of the rules of procedure,but a mistrust of the efficacy of the rules to accomplishprompt decisions upon the merits; somehow an acknowldge-ment that the courts and the profession intended well bytheir procedural rules, but had been unable to guard againstabuses destructive of substantive rights. What the effectof the defeat of this bill may be, I do not know, but it is anindication of a willingness to deprive courts of a jurisdictionwhich concededly should be theirs, because of failure or in-ability of the courts and the legal profession to provide ma-chinery for the exercise of the jurisdiction adequate to pro-tect the public interests.Immediately after the adoption of our Constitution aCode was adopted, and for several decades the decisions ofour courts were taken up largely with controversies concern-ing the proper interpretation of the Code-about how themachinery for deciding the controversy was to be worked,and very little about the controversy itself. We lawyers knowthat when rules are being changed, always in a good-faitheffort to improve and simplify them, some controversy is un-avoidable, but need we carry these controversies to the pointwhere they threaten to destroy or to impair confidence inthe institution which the rules are designed to serve? Idon't think controversy need be, or will be, carried to thatextent. It never has been, although it has, as we have seen,bred dissatisfaction and lack of confidence. Whenever dis-satisfaction is too great, whenever the sovereign public be-lieves that these lawyers have too much controversy amongthemselves about the manner in which the public is to beserved, the sovereign may turn to what it may consider thelesser of evils, and entrust the work to administrative boardsin the hope that they will do it more promptly and will getdirectly to the merits.Now, waiving the controversy about where the powerlies, the jurisdiction to make rules of practice, it is clearthat good public relations require that we do have efficientrules that will procure a result that is satisfactory to thesovereign people; that there shall not be tedious delays ortoo much controversy about how we shall proceed; that "evil-INDIANA LAw JOURNALdisposed Persons" may not be able to prostitue the rules tothe defeat of justice.If there be room for controversy about where the sov-ereign has vested jurisdiction to do something about it, therecan be no controversy about the objective sought by thesovereign, and Legislatures have never been too jealous oftheir prerogatives in this respect. In our ConstitutionalConvention there was no debate as to whether the rule-making power should vest in the courts or in the Legisla-ture. That subject was not discussed. The debate concerneditself with the necessity for improving the rules, and, sec-ondarily, with whether the Legislature should draft the rulesdirectly or through the agency of a commission. The con-stitutional provision finally determined upon is vague as towhether the commission itself should make the rules ormerely recommend, but the Legislature avoided any difficultyby adopting the Code which was recommended as a statute.It is interesting to note that in another part of the Consti-tution we find a prohibition against local laws respectingpractice in the courts, a circumstance which tends to sup-port the inference that the Constitution makers understoodthat the Legislature was to have power to pass general lawsrespecting the subject-matter.All of this is, and has been, a subject of interesting spec-ulation and discussion, if not of controversy, but I am notnow interested in a solution. What I am seeking to suggestis that our proneness to controversy about such matters hasnot helped our relations with the public. Legislatures arenot asserting or standing upon their authority. On the con-trary they seem to feel that the courts and the profession arebetter able to make the rules, and are willing to abdi-cate such authority as they may have in the premises, as,witness, the recent Acts of Congress and of our own Legis-lature.Now, what to do about it? How to maintain good rela-tions with our sovereign public? Further controversy willnot help, nor changes in the rules of procedure, if it is tolead to further confusion. Since we have been credited al-ways with an effort to improve procedure, let us so conductourselves as a whole that we shall be entitled to credit formaking our procedure work better. As a practical matter,284SOME PUBLIC REACTIONS TO PROCEDURAL METHODS 285much progress can be made by curbing those "evil-disposedPersons" who seek to pervert the rules in order to defeatjustice. But there is diffculty in this, since all insistenceupon technical rules may not be condemned as evil. But ifthe influence of the profession is exerted in a united effortto discourage the insistence upon technicalities for theirown sake; if the ability and skill of our profession are thoughtbetter employed in seeking to prevail upon the merits ofcauses, it will be helpful. I bring no answer to the problem,but if courts and lawyers will continually and ever strivetowards minimizing delay and the avoidance of technical con-troversy which tends to defeat prompt disposition of causesupon the merits, it will be a step in the right direction.

Some Public Reactions to Procedural Methods

https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=4369&amp;context=ilj

Some Public Reactions to Procedural Methods

Abstract

Similar works

Full text

Available Versions

Indiana University Bloomington Maurer School of Law