machinery of the law, although wonderful and complex, is only to make a definite product for the clients.

The clients' witnesses need to be considered as justice depends upon ascertaining facts, and their testimony should be elicited in the smoothest, gentlest and most thankful manner. If necessary a taxi should be sent for the witnesses. Their time and convenience should be consulted. The court asks their help and it is only reasonable to treat them with courtesy. When day labor is paid at $3 why should witnesses receive only fifty cents? The least that could be done is that the court will be responsive to their kindness. If witnesses are regarded as partisans for one side or the other in a great legal battle, the present system is advisable, and each side will continue to pay the witness outside the court.

Then the case would be turned over to the pleading or issue experts, corresponding to the English pronotary. In any large business corporation, daily problems and conditions have to be met and the first proceeding is to arrive at the exact question to be decided. It is hard to find a more absurd method of discovering the limits of a problem than by the common law or modern pleading. One side or the other often insists, because they believe they may have a possible chance of winning on a fluke or a misplay. If the matter were thoroughly sifted and defined by the judge or some judicial pleading officer or Master under him, the issues when they finally came to be tried would be clear cut. The actual time of the trial would be shortened. This forming of issues should be distinctly a court proceeding. Theoretically it is so now; the lawyer in issuing summons or drawing and serving the pleadings often acts as an officer of the court, which by the clerk sets the stamp of approval on his acts. Yet actually they are not court proceedings, but are merely phases of a legal game.

In the courts of the future, there will be no written pleadings; so far as the clients go all that should be necessary is to write a letter or send to the other side a bill. The real pleading will be arranged by the courts; judicial officers will investigate the facts and frame the issues. The object of the present-day pleading seems to be to tell as little about the case as possible. Framed in technical language their aim is only to make out a "cause of action," which will give them a standing in court without stating enough to give away their case to the other side. In other words, pleadings are

often cloaks or suits of armor which disguise the real issue, or like the matador's red cloak, serve to infuriate the opposing bull. It is shown by the frequent refusal to give any further information, and the appeals from orders for bills of particulars, or orders to make more definite and certain, or from demurrers. It seems necesary for the present-day lawyer to deal in wary words and forms that are over grave.

Suppose that the function of the lawyer in this respect were taken over by the court, the pleadings would have two objects: one to apprise the other side as to what the facts were in dispute, and secondly, to frame the issues clearly before the tribunal. At present the first object is not usually accomplished. It is easier to answer by denying all, and it is a better policy to do so. A trial would seem to be a free-for-all fight. The skilled lawyer says it is as easy to fight about all matters as about one or two particular matters, and if the plaintiff be compelled to prove a great deal, he may become so exhausted when he reaches an essential issue, he will fail. If, however, the court assumes the direction of pleading as it practically does in some courts of the country, there would be less danger of surprise. The court could practically say: "Now on this issue are you seriously going to dispute the fact? As a reasonable man, are you denying it?" If he answers "Perhaps it is so, but, let the other side prove it," it ought to be possible for the court to throw his technical objections out of the window.

Again if the definition of issues were distinctly a court rather than a partisan proceeding there would not be so much floundering about before trial. In modern legislative bodies there is usually a bill-drafting department where legislation may be put in legal and technical form. So in courts should there be Masters or at least trained clerks whose duties would be to frame issues.

The preparation would proceed not in the usual haphazard way. The evidence would not be procured or produced in court according to the financial ability of the client. If it be once admitted that the public should bear the expense of private suits, it is reasonable that the public should also assume all costs for a final determination in the best possible manner. If the court really wants the truth, let it be obtained by a trained corps of investigators.

The judge occupies a position so high that he is supposed to be virtuous and elevated to the last degree, so that the temptation is for him to become inhuman or non-human. Often because he has

a larger perspective and a wholesome contempt for the procedure, he obtains a truer point of view. Although he does not accept his position in a spirit of resignation, yet he makes the best of the formalism of court procedure.

His position would be more reasonable if the courts were reconstituted, as "justice factories." He would not find himself as the representative head of a business for which he is apparently though not actually responsible.

With the jury to decide the law in the case, and the judge to determine the facts there might also be justice. The laws being only crystallized common sense it might be that no one would be better able to enforce them than twelve average men. The present function of the jury to determine facts through testimony is hardly the best method. First, they are not accustomed to ascertaining facts. They have not heard a great quantity of witnesses, and they are not experts in perjury. Secondly, they are not accustomed to weighing one bit of evidence against the other. Their minds have not been trained either to remember all the evidence or for a logical discrimination as to its importance. They are apt to assume some parts as of undue importance and others as having little bearing.

Were the judge to ascertain the facts, at least there would be an expert. Technically the prisoner might be guilty of a crime. The judge would find all the facts, but the jury would take into account the extenuating circumstances, the prisoner's youth, the possibility that his life might be ruined by imprisonment, and would pronounce sentence accordingly. Practically that is what happens. In an accident case the jury takes into account the plaintiff's lawyer's bill, if they award any damages. Most verdicts are rendered in modern courts on this line. The jury has sworn to weigh the evidence and only decide according to the law as laid down by the judge. They usually apply the law of common sense and decide the facts according to the judgment that they know will be rendered.

The imaginative genius who will formulate a system of courts and of court procedure to meet modern conditions will answer one of the grave questions of the age. The superman, realizing the inadequacy of the survival of an ancient ordeal by battle as a means of arriving at truth, will devise a machinery and organization that will change the courts into places of impartial investigation.

With the judge and the court freed from technicalities, they

may engage detectives, investigators, official experts or use any means available to determine facts or law. They would then no longer present the picture of quiet spectators at a contest when they should be the active means of a judicial investigation. Is this Utopia? Then would I be a citizen thereof.

ADMINISTRATION OF BUSINESS AND DISCIPLINE BY

THE COURTS

BY JULIUS HENRY COHEN,

Chairman, Committee on Unlawful Practice of the Law, New York County Lawyers' Association; Author of The Law-Business or Profession? and Member of the Group for the Study of Professional Problems.

In a Memorandum on the Report of the Board of Statutory Consolidation on the Simplification of Civil Practice in the State of New York, submitted to the legislature of the state of New York by the Lawyers' Group for the Study of Professional Problems, the importance of radical change in the administration of justice was emphasized and at least a dozen points thoroughly canvassed. This paper will be devoted to the consideration of but two of the points covered in the memorandum.

A. THE NECESSITY FOR EFFECTIVE CONTROL OF THE BUSINESS OF THE COURT

The draft of a proposed Judiciary Article for the Constitution of the state of New York, prepared by the same group and presented to the Constitutional Convention of 1915, contained the following:

Section 4. The administrative business of the court shall be conducted by a board of assignment and control composed of the chief justice and the presiding justices of the several divisions of intermediate appeal. Every power adequate to that end is conferred upon it. It shall promulgate rules for conducting the judicial business of the court, and common forms for use therein. In the absence of action by the legislature it may prescribe rules of evidence. It shall from time to time prescribe the terms and parts of the court, define the jurisdiction of the divisions and parts, and assign justices to service therein.

The theory of this provision is that "We should apply to our (judicial) machinery the ordinary tests of efficiency that men apply in the business field. Does the thing work with the least waste of motion, and if it does not, where can motion be saved?" 1

In every business enterprise authority for supervising the administration of the business is centered somewhere. The details of organized management-executive and factory-such as 1 Memorandum, p. 5.