Part 5 (1/2)

RULE I. Pleadings must not be insensible or repugnant.

RULE II. Pleadings must not be ambiguous or doubtful.

RULE III. Pleadings must not be argumentative.

RULE IV. Pleadings must not be hypothetical or in the alternative.

RULE V. Pleadings must not be by way of recital, but must be positive.

RULE VI. Things are to be pleaded according to their legal effect.

RULE VII. Pleadings should observe the known forms of expression as contained in approved precedents.

RULE VIII. Pleadings should have their proper formal commencements and conclusions.

RULE IX. A pleading which is bad in part is bad altogether.

These are pleasant rules for a layman to understand, and any time he has a day off or a holiday he should study them.

”Shocking,” cries the old-fas.h.i.+oned reactionary lawyer, ”What! Do away with pleadings, you might as well do away with the whole case.

Pleadings are like the rails for a train. No one on the train sees them, but take away the rails and the train would not go very far.

Pleadings are the groundwork of the trial.”

He grows more and more indignant.

”The trouble with the modern courts is that they do not know what they are about. If this business of loosening the forms of pleadings had not taken place, lawyers would be better prepared when they came into court and there would not be this floundering about. The good old common law pleadings were the thing. It was a great mistake when they were abandoned. Then everyone knew where they were. If there was a mistake in the pleading then the whole case was thrown out of court.

That was as it should be. Men had to be good and careful lawyers in those days. The slipshod methods of the present time are abominable.”

”You seem to be a little hard,” says the modern lawyer. ”Justice ought not to depend on forms.”

”You can never have justice without formalizing and shaping the dispute,” says the lawyer.

”Quite true,” says the modern, ”but there has been too much attention paid to the form of justice. Pleadings are the mere mechanics like printing the program or laying the rail.”

However, this is all a question that does not come up in the court-room at a trial. Once or twice some reference is made to the pleadings. Perhaps there is some such dispute as this. The defendant attempts to swear that he ”paid for the goods then and there.” The other lawyer jumps up and says, ”I object, your Honor. In his answer he does not plead payment. He only pleads a general denial.” The judge puts on his spectacles. The lawyers gather, business stops while everyone looks at the pleadings.

Or again the plaintiff tries to show that when he was thrown from the wagon he bruised his right elbow. The counsel objects there is nothing about injuries to his right elbow in the Bill of Particulars, therefore he can not prove it. The Bill of Particulars says that he hurt his hand, scratched the forearm, and injured the right shoulder, but says nothing about the elbow. Grave consultation by the learned lawyers and the judge ensues. The defendant's lawyer is right, there is nothing in the pleadings about the elbow.

The case can not go on until that important question is settled. There is argument on both sides. The client looks anxious. The jury sit and wonder what that phrase of ”the delay of the law” may mean. Finally a bright idea occurs to the lawyer.

”I move to amend, your Honor, so as to include the elbow.” The other side looks shocked and disgusted. ”What, move to amend in such a casual way as that. The pleading is a serious thing. It has been sworn to, you may not amend a sworn statement in that offhand way.” The judge says that he will allow the amendment but if the other side is surprised he will grant an adjournment of the trial to another day.

The other side says, ”Pardon me a moment until I consult with my client.” The judge smiles. The lawyer goes over to his client and the client says, ”For goodness' sake don't adjourn. I've broken up my business for a week to come here now; what's all this fuss about pleadings; let's get on with the case.” The lawyer returns to the bar.

”We have decided to proceed.”

”Amendment allowed,” says the judge. The witness now tells about hurting his elbow.

The preparation of a case goes on behind the scenes and before the drama begins. The attempts to rehea.r.s.e are piece-meal. First one witness is seen, then another, their stories are told, their statements are taken, and they are drilled in their parts. They are told as to what facts they must testify. In one large company that has a quant.i.ty of damage suits, there is said to be a school for witnesses where there are dress rehearsals and they are taught how to behave in court.

The greatest farce that occurs in the court-room is the part of preparation that is involved in getting a case on for trial. There being no limit to the time to examine witnesses, to hear arguments, to listen to objections, it is said to be impossible to tell how long a case is going to take. Consequently the calendar having been called, the cases following are answered ready, by office-boys with no expectation of their being immediately reached.

The grave and reverend judge looks over his desk and calls the case of Bowring _vs._ Bowring. ”Ready for the plaintiff,” answers a rosy-cheeked boy. ”Ready for the defendant,” answers another. They look rather young to be trying a case. It is marked ready and the office-boys sit about the court and telephone to the lawyers when they think there is a chance of being nearly reached. This often takes several days. In the meanwhile the cases ahead of the Bowring case have been dragging out their slow and weary performance on the court stage. Matters of fact that should have taken five minutes to bring out by the present usual laborious system of proof, have taken two hours. Argument of counsel on abstruse questions of law have worn and confused the jury and the clients, who have become exhausted and impatient.