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expense of preparation and trial upon the facts. Our ablest and most experienced trial lawyers are also apt to prefer our present methods, because they have a better chance of winning a bad case by surprising their adversary at the trial, and because they like to argue questions of law in a forum where the oral argument is of greater importance. There is an opposite group of active but sloppy lawyers who like a system which does not require care and precision in the original statement of their claims, and which permits almost unlimited amendment at the trial. There are also skillful and astute lawyers who prepare pitfalls for their adversaries by vague pleadings which they intend to make the basis of surprise.
A common and typical court scene under our present conditions is a jury trial of issues raised by pleadings which violate every rule of propriety, insufficient in some places, misleading in others, vague everywhere and full of allegations which, if made definite and certain, could not be verified without fear of prosecution for perjury, although, as stated, they may support evidence of what is not the fact. Precisely what the actual issues are will not be known until the judge rules whether certain allegations are averments of fact or of law, and until the parties have made them more definite and certain by their opening addresses, by their evidence introduced, or by their applications for leave to amend. Nobody knows whether the action is in contract or tort, although the counterclaims depend upon a ruling on this point. Nobody knows whether the amendments asked will be allowed by the judge, or whether a juror will be withdrawn after one party or the other has scented out his adversary's witnesses. Meanwhile, voluminous testimony has been taken upon commission at great expense to both parties (which one party minded and the other did not).
All kinds of interlocutory questions have been litigated and intermediate appeals taken, twelve busy men are sitting in the box as jurors and as many more are sitting around to be called as witnesses, the lawyers and clients and witnesses in the next case are shuffling their feet in the back of the room, while many more are tied to their telephones waiting to be called. The trial opens with a motion to dismiss the complaint upon the merits, raising points which astonish the plaintiff and befog the court. The motion is denied, the trial proceeds for two or three days, the witnesses are disposed of and the jury exhausted, old acquaintances have become enemies among those interested in the suit, while jurors and witnesses who know nothing about it have lost appointments and opportunities, the motion to dismiss is renewed at the end of the trial upon the same ground, and the judge upon further consideration grants it.
All of this could have been avoided had the question been settled years before at Special Term at comparatively small expense, upon demurrer to the complaint, in the presence of two lawyers and a judge.
I address myself only to those who concede their interests to be identical with those of the lay community in general, who think that every law-suit should be swiftly and economically settled, if possible, and who think that neither party should be permitted to sacrifice outsiders unnecessarily to his own interest, in taking advantage of his adversary's stupidity or ignorance of fact or of law; who therefore think that no fact should be tried in the presence of twenty-five men which could be avoided by an argument in the presence of three men, and recognize that the law is not as free and fair to the poor as to the rich, when they must pay for commissioners' fees and stenographers' minutes and witnesses' mileage and coun
sel skilled in jury trials, when the case could have been decided upon a simple issue of law and all this expense avoided.
The demurrer, the motion to make definite or strike out, the motion to compel a reply, are naturally the poor litigant's weapons. They are sometimes also, however, instruments of delay. They are used to postpone the joinder of issue upon the facts where the case is one that must be decided upon the facts, in the hope that, when the trial comes at last, the plaintiff may be tired out, or may be dead, or the defendant may have failed, or may have got on his feet. Our system of pleading should be devised for the benefit of the layman who has an honest case and the law on his side, but who cannot afford leading counsel, or voluminous stenographer's minutes, or expensive testimony, or long delay. I believe that, with very little change in our statute law and with intelligent and sympathetic assistance from our Judiciary, we can go a long way toward giving him what he wants.
Mr. David Dudley Field's theory in drafting the original Code of Procedure was that the issues should be sharp and definite, and that the allegations of the parties should be so clear that their precise meaning and application should be apparent, and that the conscience of the pleader should be effectually searched. He intended the pleading at the commencement of the action to be most critically inspected and regulated by means of motions and demurrers, under penalty of a liberal exercise of the power of amendment if the party aggrieved should fail to move or demur.
There have turned out to be three grave defects in his plan, and the existence of these defects has given the motions and demurrers such a reputation for dilatoriness that they have been continually discouraged by the great
majority of our judges. The first of these defects was the distinction between the motion and the demurrer. The second, inherited from the former practice, was the treatment of the demurrer as raising an issue which must be tried at a formal term of the court. The third, also inherited from the previous system of procedure, was the curious prohibition against moving, demurring and answering at the same time.
Why should there be a distinction between an objection to an entire cause of action and an objection to ninetenths of the allegations therein contained, so that one objection must be raised by demurrer and the other by motion? Why should the lawyer be obliged to worry himself about whether to demur or move, or whether the delay of moving first and demurring afterwards is worth the advantage, when he might conveniently do both at the same time and get double or alternative relief? Why should the demurrer delay the case until the next regular term of court, although many a motion which involves every question that could be raised by the demurrer, with other and more difficult questions besides, can be brought to a hearing at any time upon order to show cause? Why should not a defendant demur and answer simultaneously if he wishes to do so? Why should he be allowed, having answered on the merits, to move for a dismissal at the trial and not before? Why should our Judges discourage, instead of encouraging, the prompt disposition of cases? Why put off until the trial the decision of the question whether the action is brought in contract or in tort, in équity or at law.
In the fresh water districts of this State a notable step has been taken toward reform. By a statute of 1900, demurrers were authorized to be heard as contested motions except in the First and Second Judicial Districts.
1 am glad to take my hat off to the fresh water lawyers and their legislators. I am going to ask the advice of the thinking lawyers of this State, who compose the State Bar Association, as to whether there are not other steps which can be taken in the same line.
I propose first that the Act of 1900 be extended over the entire State, and that a demurrer, which is nothing really in substances but a motion to strike out a pleading or some part thereof, may be heard upon the same notice as any other motion, subject to the inherent power of the court to allow a reasonable adjournment in a proper case.
I propose further to assimilate it to a motion by destroying altogether the distinction between a demurrer to an entire pleading, or some particular cause of action or defense therein contained, and a motion to make definite and certain or strike out. Either abolish the demurrer entirely, and substitute a motion to dismiss, or make definite or strike out, or else permit the motion to make definite or strike out to be made, as of old, in the form of a special demurrer, and to be joined with a general demurrer if that happens to be economical and convenient. Let the court examine the whole pleading and do what is right all at once, granting alternative relief if necessary.
I have tried for twenty years to find someone who could tell me why a demurrer and an answer could not be served at the same time. Nobody has told me yet. In equity a demurrer is usually included in the answer, and that is often done under the Code, although it is of no use to anybody in that form. A demurrer at the trial, in the form of a motion to dismiss, can be made without pleading it at all. I propose that we allow the defendant to move to dismiss the complaint at any period