Representative capacity Executor Committee Trustee Appearance Pleading Complaint Answer Counterclaim Set off Reply Rejoinder Interpleader Evidence The rules of evidence should be broad general rules to be included in the rules of court. It is the opinion of your committee that rules of evidence should not be placed in the Consolidated Laws nor in a statutory code of evidence. As stated in the report of the Board of Statutory Consolidation dated December 1, 1912: "These rules are largely under the control of the courts and the adoption of a liberal policy in disregarding errors on appeal not affecting substantial rights would discourage much of the technical practice now so common in relation to the admission and exclusion of evidence upon the trial of causes." The salient features of the code of evidence presented to the legislature in 1889 by Mr. David Dudley Field and Mr. William Rumsey are available as precedents out of which a few broad general rules may be formulated which would be sufficiently elastic in their nature to afford substantial justice. Commissions to take testimony Notice of trial Preference Calendar practice and classification Trial by Jury Challenges Method of swearing witness Non suit Verdict Disagreement Waiver of jury Trial by Referee Reference by consent In the opinion of your committee where both sides agree upon a referee, the same must be appointed by the court except in matrimonial actions. Judgment By default or confession Summary After trial or reference-after appeal Taxation and retaxation of costs Entry of Judgment roll Lien of Stay of Setting aside In the opinion of your committee, the reinstatement of verdict reversed on intermediate appeal, should be provided for by rule. Appeal Notice of Record on and filing In the opinion of your committee, the original stenographer's minutes only should be before the court obviating the expense of printing the same. Notice of argument Preference Briefs Hearing Decision Remittitur Execution Discovery in aid of and proceedings supplementary to execution In the opinion of your committee, arrest and body execution should be limited to wages. General provisions Forms of process, summons, subpoena pleadings affidavit order notice of claim lis pendens Papers Service and filing Summons and motion for directions Amendment Pleading new cause of action by amendment, on terms Consolidation and severance Extension Stay Want of prosecution Default Argument Payment into court and out of court Gross sum, in lieu of annual interest Regulations for court deposits held by banking institutions Detention, inspection, preservation and survey of property Arbitration of controversy Judgment creditors' actions PART FOUR-CONCLUSION The generic purpose of the Phi Delta Phi Club, consisting as it does of graduates in New York and vicinity of the legal fraternity of Phi Delta Phi in the law schools of the country, is to promote the acceptance and the realization of high ethical ideals. In reports to the New York State Bar Association and to the American Bar Association at their meetings in 1917, the Committees on Professional Ethics emphasize the fact that the mere adoption of canons of professional ethics was a mere brutum fulmen, unless the profession is to carry the spirit of such canons into each professional relationship; that is to say, there must be an applied ethic; and the lawyer in his relation to the community must be a student of what Professor Ormond of Princeton used to characterize as the "metaphysics of oughtness." He must be sensitive as a barometer to the evolutionary movements in the community life around him. He must never permit any idea of his personal convenience or profit to influence him in obstructing requisite reforms. Because he may have learned to practice under one scheme of procedure he must not be unwilling to adjust himself to the demands of the new generation for a more expeditious and efficient judicial administration. The days of the retainer and refresher may come again, and the contingent fee and the negligence specialist may largely disappear, but it is clearly to the interest of the legal profession in the last analysis to minimize the time between the summons and the judgment; between the assertion of the claim and the collection of the award. Modern conditions call for speeding up the machine and modern professional ethics make it, in the language of Hoffman's Tenth Resolution, "essential that should clients be disposed to insist upon captious requisitions or frivolous or vexatious defenses, they shall neither be enforced nor countenanced" by the high-minded practitioner. Professor Ormond, above mentioned, Princeton '79, and later a valued Professor of Philosophy in that institution, was summarizing in 1885 the philosophy of Herbert Spencer to a junior class and he said, "It is an attempt to weld together a sensational psychology and a transcendental ontology and to subsume it all under the concept of evolution." It will not be a violent effort for the intelligent reader to apply this characterization to the relationship of the profession of the law to procedural reform. If, as we said at the outset of this report, the administration of justice is the highest concern of man on earth, Burke was right, when he uttered that phrase, in assuming the transcendental nature of the professional career, at the bar or on the bench. But it is obvious that while the task of accomplishing this great scheme of simplification is the primary duty of the lawyers of the land, it is equally obvious that numerically there will be a majority of the bar of any given period in opposition to that just ideal, and it is therefore the duty of those who are pledged to the ideal to gain support if possible from the general public in order to the accomplishment of the fundamental and structural changes in the Constitution and statutes of any state that are required to effectuate that ideal. The word "ideal" is used with regard to reform subjects in two senses. By the "reformer" [a hackneyed term and with a content almost of reproach] it is used to designate the ultimate, desired goal in the evolution of some social condition. By the practical man who has not been able to study the matter in all its phases and connections the word "ideal" is used to indicate the impossible, the unachievable; and the reason why reforms progress so slowly is that the average legislator and the average voter look upon the "reformer" as a man without practical ideals and upon his ideals as Utopian and unworkable. It took a generation to fasten a code of civil procedure on the practice in the state of New York. It has taken another to realize the cruel grip it has on the welfare of the community. It may take another to fully cure the evils which it has wrought. Your committee has had in mind, therefore, the fact that a constitutional change depends for its accomplishment upon the vote of the general electorate of the state, and it realizes that the general electorate of the state does not always vote upon a constitutional amendment in the same numbers and with the same interest with which they vote for a particular individual as a candidate for an official carrying a salary. It is hard to get the voters of the state to attend public meetings at which dry, legal, procedural reforms would be presented for discussion. Yet if they can be aroused and made to realize that their pockets will be profited and their property rights better safeguarded, their litigation expedited, their disputes more effectually and reasonably adjusted, a constitutional reform, even to the extent suggested in the draft Judiciary Article in Part I of this report, can be effected, or in the language of the man in the street, it "can be put across." In the second place, a legislature is hard to deal with in the matter of procedural reform. The man who has made the profession of law a career and is unwilling to turn aside to the right hand or to the left, rarely runs for the state legislature. There are from time to time great lawyers in local legislatures, and the record of our public life is full of the public service rendered in Congress and in state legislatures by distinguished lawyers. And the legislature of the state of New York has given, by able men, the most careful study and unselfish and untiring labor to this general subject, as evidenced by the enormous record of the work of the Rodenbeck Board, and of Senator Walters' Joint Legislative Committee, and the bar of the state is under a great debt of gratitude to these men. But it must be remembered that these men are doing this on the side, and that it is not their chief and main duty or purpose. They have countless other claims upon their time and attention, and it is a marvel that their work is so little open to criticism in view of all these conditions. The four blue volumes which the board published in 1915 do not begin to represent the total labor of this board and of the Joint Legislative Committee that has been dealing with its work. We are reminded by the nature of the labors of the latter committee of the experience of Theophilus Thistle, the successful thistlesifter, who in "sifting a sieveful of unsifted thistles, sifted three thousand thistles through the thick of his thumb." The writer of this report was privileged by the Hon. J. Henry Walters, chairman of that legislative committee, to examine the detail of the work which |