Baltimore Evening Sun (21 April 1913): 6.


From the report of a committee of the Bar Association on abuses and obfuscations in the courts:

The charge that our judges * * * assume the attitude in trials of umpires or moderators, whose sole duty consists in enforcing rules, and that they fail to appreciate the fact that their real function is to see that justice is administered fully without denial and speedity without delay * * * is believed to be due in the main to that complete and rigid separation of the functions of judge and jury recognized and enforced as law by the Court of Appeals, under our existing system of procedure. * * * Under such circumstances any inclination and aptitude which a judge may possess to control, direct and expedite trials is hopelessly hampered, and in many cases he fails to exercise a right to interfere, because a stupid system embarrasses, restrains and discourages him. * * *

Nevertheless, it must be apparent that the worst abuses now visible in our courts are not due to any such fear of invading the jury’s rights. They arise, on the contrary, out of rules and customs which have nothing to do with the jury, either directly or indirectly. In the celebrated cases against the ex-sheriffs, for example, now rounding out their fourth year, most of the delays have occurred at times when no jury was in the box. I say most, but I really mean all. When, after three and one-half years of jousting, a jury was finally called in the Green case, it did its work promptly and well. Impaneled on October 3, 1912, it brought in a verdict on October 11. Whatever the fears and embarrassments of the presiding judge may have been, they at least caused no appreciable delay.

All of the preposterous backings and fillings actually occurring in this case, and in the other three cases likewise, have been caused by idle duels between lawyers on the one hand, and by the extreme deliberation of judges on the other. For example, the four cases were at a standstill from September 30, 1909, to November 28, 1910, a period of 14 months, while one of the judges pondered at point of law that an English judge would have decided in two minutes. Again, one of the cases went to the Court of Appeals on March 11, 1911, and stayed there until December 13--nine months more. Yet again, another case got to the Court of Appeals late in December of last year--and is there yet. Every one of these delays has also delayed all the other cases. In no case was a jury concerned.

It will be difficult to convince the average reflective layman that such snail-like proceedings are unavoidable or that they serve any necessary purpose. It will also be difficult to convince him that the petty squabbles constantly arising in these cases have helped to the determination of just verdicts. Over and over again the opposing lawyers have wasted time without interference from the bench. Over and over again the whole process of justice has been brought to a halt by technical objections and arguments bearing no visible relation to sound law or common sense. No wonder the people of this community acquire a cynical view of the courts and come to the conclusion that a single clever lawyer is more than a match for the whole bench of judges.

Whatever his handicaps in the presence of a jury, a judge has a clear right to hold lawyers to the issue when no jury is in the box. The more grotesque of their cavortings are impossible without his consent, and he is under no obligation to give that consent. What is more, there are plenty of judges in the land who actually withhold it. We had a shining example six montbs or so ago, when Judge Middleton Smith, of South Carolina, came here to sit in a case in the United States Court. The lawyers in this case, accustomed to the easy rule of our local judges, began with the usual duel of exceptions and objections--but they didn’t get very far with it. Judge Smith put his foot down upon all that idle comedy at the very start. In a few hours he had a jury in the box and was proceeding with the trial of the case on its merits. He cut short vapid cross-examinations; he overruled nonsensical objections without ceremony; his single purpose was to unearth the facts. Did this plan do injustice to the accused? Did it deprive them of their right to a fair trial? It did not. There were six of them, if I remember rightly--and five of them were promptly acquitted.

Motions, objections, exceptions, demurrers and appeals, many of them wholly pointless and preposterous, waste half the time of our courts, and particularity of our courts of first instance. Their one practical use seems to be to confuse and browbeat the trial judge. They lead him into trackless morasses; they increase his chance of making mistakes; they take away from him his necessary and proper dignity; they put a premium upon mere sharpness and talent for trickery in lawyers. It is seldom, indeed, that a case of any importance closes without innumerable loopholes for appeal. The public would be vastly surprised if a verdict in such a case were received as final by both sides. No wonder the harassed trial judge, knowing that everything he does is thus subject to unrestrained criticism and review, falls into indifference and formalism. No wonder he plays the mere umpire.

The remedy would seem to lie in augmenting his powers, particularly in augmenting. his power to decide all minor questions of law finally. In brief, he should be made the actual boss of his court, with complete control over all its officers, including even the prima-donna barristers who perform before him. The presumption is that he knows the law, and also that he is a man of reasonable intelligence and integrity: otherwise he would not be on the bench. And that presumption is safe enough for all practical purposes. If it is actually false, if the people have put a numskull on the bench, then they deserve to suffer for it, that they may learn better prudence. And if it is sound, then there is no sense in incessant exceptions and appeals.

In any case, nothing is accomplished by making the judge a sort of second-rate clerk. If he is incompetent to see that the laws are carried out and that justice is done to litigants, then what assurance have we that the learned judges of the Court of Appeals are any better? He and they are elected in substantially the same manner; it is not uncommon, indeed, for a judge to go from one bench to the other. Why, then, hold the Court of Appeals over the head of the trial judge, as a club wielded by lawyers? Some one, it must be obvious, has to decide things finally. The process of appeals cannot be endless. Why not shut it off as far down as possible? Why not make the judges of our local courts actual judges, and not mere referees and bored spectators? Why not give them larger authority in their own courts, and especially larger authority to squelch the buffooneries of trifling and irresponsible lawyers?