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the case then than it will ever know about it thereafter. An untrained justice or common juror is obliged to determine the issues immediately after trial has closed, and it would appear that a trained and able court has no reason to defer his decision after a case has been submitted to him. If this were the rule, attorneys would speed up and prepare their cases before trial and present them to the court, and the result would be in most cases a correct determination of the facts and law in the case. Delay in court cases is the rule, so much so that courts and attorneys look for delay, expect it, and the case is not as well tried as it should be, and the general public becomes impatient and does not look upon the court as a proper method of determining controversies. Rights which a man has are not taken to courts because of the delay and the general respect for our judicial system is weakened. As to the fourth cause of delay, that is due principally to our inefficient system of reporting. This could easily be remedied by having two reporters instead of one. There should be at the close of the day, or at least by the next morning, a complete transcript of the court proceedings. It would be a help to the attorneys trying a long case, and at the close of the trial the transcript would be ready. Thus delay might be much removed, and the general public would respect the Bench and Bar and law to a greater extent, and such respect would be more deserved.
The Chairman :
I understand that Judge Rogers, of Colorado, has given a good deal of consideration to this subject, and we would be glad to hear from him.
Platt Rogers, of Colorado:
I don't speak on this subject as a judicial officer nor hardly as a practising attorney, because, in the latter aspect, I am not so actively engaged in the practice of the profession as formerly, but that very fact has given me the opportunity to investigate some of the questions concerning practice and procedure, which investigations I have tried to make of some value in the State of Colorado. The Bar Association of Colorado, through its Committee on Judicial Reform, recommended some thirty-odd measures to be submitted to the legislature, for the purpose of improving the code of procedure. I was a member of the Execu
tive Committee of the Association at that time. The bills were very carefully drawn for the purpose of improving the practice and procedure. On that committee was one of the most practical members of the legislature of the state. He said that it was practically impossible to obtain consideration of so many measures at one session; that the most that could be done was to select some one, two or three measures that we considered of pressing importance, and put those measures before the legislature, and let the others await subsequent sessions. It occurred to me that this was a very crude way of providing for the practice and procedure by which the courts of the State of Colorado should be governed. I suggested to the committee that we were not going at the subject in the right way; that inherently the power to prescribe rules regulating practice and procedure rested in the courts, rested in the judiciary department of the state, and that while it might be true that, by virtue of its general control over the affairs of the state, the general assembly might enact rules regarding practice and procedure, that that was rather an inversion of power than an exercise of an original inherent right in the legislature. Acting upon that suggestion, the act which Judge Gabbert has read at this session was drafted and submitted to the legislature, and after a tremendous amount of effort we were able to get it enacted by that body. Now, let me say that the entire theory upon which we have acted in respect to this method of amending and curing the defects in the code of procedure is based upon what we consider to be the law of efficiency, which is a law which is supreme over every department of the government, supreme over the legislature, supreme over the judiciary department. It must strike every observer that the persons who can properly devise the ways and means by which justice shall be administered in a given state are a body selected with respect to their knowledge of the principles of law and the manner of their application. The legislature, while we may give it due credit as being the representative of the people, is, after all is said and done, a heterogeneous mass that looks after the affairs of the state in general, rather than after any department in particular. They may frame the laws for the government of the people of a substantive character, but when it comes down to the machinery of any
given department, particularly the judicial department, the legislature is, in fact, the least qualified in its makeup of any department to take care of so important a function, and, as we well know, when the legislature acts upon a matter of that kind, it is not done by virtue of the members of the legislature as a whole; it is because in the legislature, as in every other department of the government, we find a contingent of the legal profession that can give some form and substance to a matter of the importance of rules and regulations governing practice and procedure. Without the presence of members of the Bar in the legislature that body would be absolutely incompetent to prescribe rules and regulations for the government and procedure of the courts, so that in the very nature of things, according to the requirements of efficiency, that was not the body to which should be confined the making of these rules and regulations. As soon as this law was proposed, the first objection made was that it was a delegation of legislative authority, and the members of the Bar here would be amazed at the courage with which some of our distinguished lawyers in Colorado asserted that it was unquestionably a defiance of constitutional limitations; that it was a delegation of legislative power and that the legislature could not so delegate its power. But that matter was settled almost in the beginning of this federal government by Chief Justice Marshall, who, in passing upon the Act of 1773, which gave to the Supreme Court the power to formulate rules in equity cases, declared that the making of rules for the government of courts in the administration of justice is not legislative in its true nature, but is at the best but quasi-legislative; that in fact when the legislature permits the Supreme Court to formulate rules in the manner in which we proposed, it was not a delegation of authority, but it was the abdication for the time being of a power which the legislature might exercise if it saw fit, but that inherently the power originally rested with the Supreme Court to formulate these rules, or at least with the judicial department. Whether you start with the County Court or start with the Supreme Court, taken together, they simply combine and make that one great organization known as the Judicial Department. Our course in Colorado was adopted with reference to the doctrine of efficiency, which if ever called upon for action is called upon
for action today, and it was also intended to meet the growing demand of the people for greater expedition in the administration of justice. They know in a vague way what they want when they demand that there shall be reforms in the administration of justice, and knowing it only in this vague way, they have the vaguest remedies to set forth. It was because of these considerations that we suggested the specific measures by which efficiency, which hereafter must control this government as it has never controlled it before, should be applied to the administration of justice.
Gentlemen, I don't feel like calling on each one of you by name, but we will be very glad to have you express your views on this question.
Judge Overton G. Ellis, of the Supreme Court of Washington:
Mr. Chairman, I have very little to say, except just to hark back. The question is “uniformity," not the different kinds of practice, but a simpler practice, and in touching upon that question, it seems to me that unless we are ready to say that some court or some legislature can and will say the last word on the subject of what is desirable, we are not yet ready to say that absolute uniformity is in itself desirable. Now, it is true that the diversity of practice, in the different courts, in the different jurisdictions and in the different states, is a thing that arouses a good deal of comment among people from other countries. It has been spoken of by judges and law-makers from other countries, but after all, in a democracy where everything is essentially a question of evolution, is it not somewhat desirable for every state to work out its own salvation, with fear and trembling? and some of the other states may take the best, and the result might be, after all, a gradual growing up of the efficiency to which Judge Rogers has referred. Unless, as I say, some court or legislature can say the last word, and unless all of us have confidence that it will, is absolute uniformity desirable? I am just throwing out these hints as things that this body ought to think about in approaching this question. Is uniformity absolutely desirable after all, in view of the progress that all of us hope to make toward the efficiency of our courts and the speediness with which courts must dispense with business?
Gentlemen, is there anything further? Last year we printed the discussion and it was afterwards sent out in a pamphlet form, as most of you know. Now, it may be deemed desirable by the Executive Committee this year to do the same thing, if the Bar Association feel that they can stand the expense. Therefore, I think that everyone who has spoken this afternoon ought to give to the stenographer his full name and address, so that we can send the remarks, after they are written up, to that person for correction. Is there anything else before we adjourn that ought to be brought to the attention of this Section?
Judge Robinson, of West Virginia:
Mr. Chairman, this body meets, talks, and goes away. I simply inquire whether it would not be well for us now and then to take action or at least to drive a stake indicating just how far we went, or where we were when we stopped. I am not going to say that such a course is proper this afternoon as to the subject under consideration-it may be all right if we have simply opened the way for a further consideration of it, but I inquire whether or not it would not be well to formulate some process whereby this Judicial Section would speak out, not simply by the report of the stenographer, but would speak out in formal shape, by resolution or otherwise.
The Chairman :
Let me suggest this, Judge Robinson: there are some here who were at the Montreal meeting when we attempted to pass a resolution on this very same subject at that time, and there was a great diversity of opinion, and it was thought wise not to pass a resolution at that time.
I believe I said I thought it was perhaps not time for direct action upon it, but my thought was, couldn't we have a committee of the body, or some plan formulated, whereby there would go out from the meeting some notice of what we believe.
The Chairman :
Why don't you make a motion, if you desire to do that, to refer that question to the Executive Committee for consideration.