A Letter on the Improvement of Procedure

By Hon. William L. Putnam Judge of the United States Circuit Court for the First Circuit To the Editor of The Green Bag:— I THANK you for publishing in your September number sufficient extracts from what I have written in reference to the improvement of legal procedure to illustrate what I regard as the fact, that the improve ment is to be brought about by vigilance at every point, and not as the result of any special fad which is expected to give universal and perpetual relief. It may also well be said that any sweeping comparison between procedure in England and procedure here, which puts our courts generally at a disadvantage, is far from justifiable. The English courts have certain habits which would not be tolerated in this country; and, moreover, some are now becoming choked with business, so much so as to cause great complaint. Par liament has also been compelled by a sense of justice to give in criminal cases a universal right of appeal, which theretofore depended on the discretion of the Attorney-General, a fact which has done as much as any other fact to expedite criminal proceedings, and a fact as to which the late adoption of the universal appeal approved the practice pre vailing so largely by statute in the United States. You begin your extract with quotations to the effect that, like one principal cause of dis aster with steam railroad trains, one principal cause of disaster in the courts is the matter of getting behind time without due reason there for. This comes from an easy disposition on the part alike of the courts and of the profes sion. It does not appear to have been of mod ern growth. It is so full of mischiefs that the causes for delay which are recognized usually as sufficient are exceedingly numerous, while the judge who refuses to delay when re quested by plaintiff and defendant alike would be regarded as harsh, and indeed as tyrannical. On the other hand, delays of the character I refer to are rarely admitted in the English courts. By a recognized practice which has almost the force of law, both senior and junior counsel are usually retained. The junior counsel are sometimes regarded as understudies, and so required to

go on with the case even when the senior has some conflicting engagement of the char acter which generally permits a delay or a continuance with us. Of course, the standard penalty of,£10, with sometimes full costs in addition, which the English courts have im posed on dilatoriness, has taught solicitors to fight shy of that carking evil; yet an irn provement here of a thorough kind would very much advantage our own legal procedure. The President, in his address at Chicago, animadverted severely alike on the legal pro fession and on the courts. He said of the legal profession that too many lawyers "had been prone to think that litigants were made for the purpose of furnishing business to courts and lawyers"; and he added: "More than this, I am bound to say that in the matter of reducing the cost of litigation, and indeed the time of it, Congress and the federal courts have not set a good example." Against such observations it is sufficient to appeal to the bound volumes of the reports of the proceed ings of the American Bar Association since the day of its organization. However, I am not touching upon this for the purpose of making an issue on these observations. I am merely noticing it in the way of leading up to illus trations of what I have just now in mind. In the spring you were good enough to ask me to express to you my views in reference to the general topic of legal procedure. I have not been able to find the opportunity for accomplishing this; but I have from time to time been making investigations for the pur pose of illustrating from concrete and prac tical examples the causes of the more serious grounds of complaint with reference to the present topic. This investigation I never have been able to complete; but at every point I am turned back to what you have quoted from me, namely, that there are existing evils, as there always are in all human matters, which can be remedied, and "that there will be new evils springing up in lieu of those now existing unless vigilance is con stantly exercised in all directions." A very striking example of the second prop osition is found in the Criminal Code just