Pictures and Illustrations.
The Administration of Justic in Chicago.
(Published in the Chicago Papers.)
Hon. Sherwood Dixon,
House of Representatives, Springfield.
Dear Sir: In answer to your letter asking my views upon your bill, which provides that the judges of the trial courts may, under certain conditions, give an oral charge to a jury, permit me to say that I am not satisfied with your bill, because it does not go far enough; still, it is a step in the right direction, and I hope the General Assembly will take up the matter of regulating the practice in our courts, and treat it with that thoroughness which its importance demands.
The main objections to our system of practice in the common law courts, referring particularly to Cook County, are:
First. The uncertainty as to result without regard to the justice of a cause brought about in part by legislation, which experience has shown to have been unwise, in part by requiring a unanimous verdict, and in part by the fact that the higher courts have embarrassed and complicated the administration of justice by what have been called "frivolous technicalities," applied not to the merits of a cause but to some question of procedure, so that hundreds of cases are reversed and kept hanging in the courts for years, until the subject-matter of litigation is lost and the parties are worn out with expense and worry — not because the case had been wrongly decided in the trial court upon the merits, but solely because there was a difference of opinion concerning some question of procedure. Consequently, dishonest men, with no meritorious defense, are encouraged to litigate, and, as a
132matter of fact, have almost as good a chance of success — at least for several years — as those that have an honest case, and many honest men with meritorious cases are afraid to go into the courts because they feel that they have only a little better chance there than a scoundrel.
Second. Another objection is that at present a lawsuit costs him who loses but little, if any more, than he who wins; so a man without a just cause of action or meritorious defense can keep a case in the courts for years and subject his opponent to great expense and annoyance without taking any chances. As a result, many suits are brought which ought not to be, and many others, in which there is no defense, are fought for years, simply because an unscrupulous defendant finds it to his advantage to fight rather than to settle. So that many meritorious cases are kept out of the courts, while our dockets are crowded with cases many of which ought not to be there, and many others of which should be speedily disposed of.
Third. Another objection is unreasonable delay. This grows out of the conditions I have just mentioned, and at the same time augments them. As a rule, it now takes from two to four years to dispose of a suit in our common law courts, whereas it should not take over forty days. At present, when a man begins a suit, he generally has to wait nearly two years before it comes up; in the meantime, the situation of the parties may have changed, or the subject-matter of the suit become worthless. Then he is notified by his lawyer that his case is about to be reached and that he must prepare for trial. Thereupon he partially neglects his business, has consultations with his lawyer, and looks around for his witnesses. In the course of a few days — or a few weeks — the case is actually placed on the call for the following day. Then he attends court with his witnesses for from two to ten days at great expense until the case is reached on the call, when it is discovered that on account of the engagement of counsel on one side or the other in some other court the case has to be passed for a short time. Then in the course of a week — or sometimes of three or four weeks — he gets his witnesses together again and goes to the court-house, where he finds some other case on trial, and he is told to wait. In the course of a day or two his case is again reached, when the chances are about two to one that it will again have to be passed. And very frequently, after having neglected his business for weeks, and having been to great expense and trouble in getting his witnesses and attending court, it is found that on account of absent witnesses or some other cause the case must be continued, and that it will not be readied again for upward of a year, when he will have all his work and trouble of preparation, etc., to do over again. If, however, the trial is begun, then
133he is astonished to find that it is apparently not the justice of his cause which is the main subject of inquiry, but that, instead, it is the rules of procedure about which great solicitude is shown. When the evidence is all heard and the lawyers have made their arguments, then he learns that we have had legislation in this State which changed the practice as it existed at common law and still prevails in the Federal courts, by which the judge was to point out to the jury just what the issues are, and state to them the law governing the case; but that, instead, the judge cannot give the jury any other than written instructions. As a consequence the jury is often left with very confused notions as to what the issues of fact are; and as there is usually not time for a judge to write out a clear and concise charge covering the whole case after the evidence is closed, he is frequently obliged to give a number of instructions prepared by counsel for the respective parties, and which frequently fail to give to the jury much light or guidance; so that the jury is liable to either bring in a verdict which is entirely wrong and must be set aside, or else to disagree and thus compel the parties to wait until the case is again reached in its order, and then do all this work over again. As the law requires a unanimous verdict, the suitor finds that if there should be a corrupt man on the panel, or a crank, or a man who felt offended at something said by another juror, he has it in his power to produce a miscarriage of justice without giving any reason. If, however, the suitor safely runs all these gauntlets and secures a verdict, which after a motion for a new trial has been argued, is left to stand, then a judgment is entered, and the defendant appeals to the appellate court. This takes about one year more, and occasions considerable expense for lawyers' fees, printing, etc. Then it is found that the appellate court reverses about forty per cent. of all cases brought to it, and sends them back to be tried over again; and they are reversed, as a rule, not on the merits — not because an actual injustice has been done, but a great majority of cases are reversed because of what has been styled "some frivolous error" in the procedure. Frequently some point which neither side thought of or urged in the court below is made a ground for reversal, because, to quote the language of the higher courts, "it may have influenced the Jury"; not that it probably did influence the jury, or that the result should have been different on the evidence. So that our suitor finds that two chances out of five are against him in the higher court. If his case is reversed and sent back, then he finds himself just where he was when he started, and he has had upward of three years of expense, trouble, and worry for nothing. He must do all his work over again, and it will require from two to four more years to get through with
134it. If, on the other hand, his case is affirmed by the appellate court, then, if the amount involved exceeds one thousand dollars, an appeal is again taken to the supreme court. This involves another delay of about a year, and the paying of lawyers' fees, printers' fees, etc. Here again his case may be reversed and sent back, and if it is, the suitor finds himself just where he started, and all his outlays and his worry have been for nothing. But as the supreme court at present cannot review the facts, but considers only questions of law, the chances of a reversal here are not so great. If the judgment is affirmed so that the lawsuit is finally ended, then he learns that the other — that is, the losing-side need pay him nothing for all the expense, delay, and trouble to which he had been subjected, even though his suit was founded on a promissory note. That is, a man with ever so honest a claim may be kept in the courts for years, kept out of the use of his money and put to great expense and trouble, and the other side need not pay his lawyers' fees, need not pay the printer's bills, need not pay for the delay, nor for the trouble and annoyance to which he has been subjected.
Is it any wonder that many of our business men would rather lose a claim entirely than to go into court with it? Is it any wonder that many conscientious lawyers advise their clients to accept any kind of a settlement rather than attempt to litigate? Is it not reasonably certain that if the law were to provide that every time a case is decided on its merits in any court of record the court shall fix a reasonable attorney-fee to be paid by the losing party to the winning party, it would weed out much of the litigation we now have, and bring about a condition in which a man having an honest claim would not feel that he might as well lose it all as to go into a court of justice with it?
Fourth. Still another objection urged with much force is that our present system entails a heavy expense on the public — on the non-litigating people — which they ought not to pay.
Leaving out of consideration the probate and the county courts, which to a certain extent are administrative, there are in Cook county eighteen judges, including the superior and the circuit court judges. Two of these are constantly at the criminal court, leaving sixteen attending to civil business. It is true three of these are in the appellate court, but their salaries have to be charged to the public.
|The salaries of these sixteen amount to||$112,000|
|The expense of the clerks' offices of the superior and circuit courts for a year is||69,468|
|The expense of sheriff's office, chargeable to these two courts, over and above its earnings, is||75,000|
|The expense of keeping up court-house, and chargeable to these two courts, is||20,000|
|The jurors' fees for these two courts amount to||62,756|
|The total earnings of the superior and of the circuit court clerks' offices amount to||107,487|
Leaving $231,737 as the sum which the people of Cook County pay annually for the benefit of its litigants. The present fee to be paid on commencing a suit is $6; and by a defendant on entering an appearance is $1.50.
The total number of suits brought, including appeals from justices, in the superior and the circuit courts during the year 1888, was 12,380, as follows: 3,460 suits in chancery; 7,960 suits at law; and 2,325 appeals from justices.
They were disposed of as follows: Judgment entered by default or confessions, 2,759; 3,039 were dismissed for want of prosecution, and 3,407 were tried. So that there were about 3,000 more cases brought during the year than were disposed of.
If we take $339,224, the total expense to the public, and divide it by 12,380, the total number of suits brought, we have $27.40, the amount which each suit should contribute in order to defray the expense; or if we divide by 9,205, the number of cases disposed of, we have $38.59 which each case should contribute.
But as it would be unjust to require a small case, which consumes but a few hours, to contribute as much as one taking up several days, it would perhaps be better to repeal the statute which provides that in Cook County $6 advanced by the plaintiff and $1.50 by the defendant shall be in full of all costs to be paid to the clerk of the court. In that case the clerk would collect fees for everything that is done and turn them over to the county treasurer, as is now the practice throughout the State; and it is believed that this would give ample funds to cover the whole expense. It may be added that the law limiting the fees to be paid in Cook County was passed at a time when the clerks pocketed all the fees paid and amassed vast fortunes. It was intended to limit their income. But since clerks are paid a salary and are required to pay all fees into the county treasury, the reason for the law has ceased to exist. If, however, the statute cannot be repealed, then I would
136leave the fees as they are, and suggest that the clerk be required to tax a fee of twenty-five dollars per day to be paid to the county for each day or fraction of a clay consumed at the trial — this to be paid by the losing side, unless otherwise ordered by the court.
Referring again to the expense of keeping up our system of jurisprudence in proportion to results attained, I will add that the total amount of moneyed judgments rendered in the circuit and superior courts of Cook County during the year 1888 was $7,831,174, the greater part of which was in cases in which there was default or a confession, and a very large per cent. of which is worthless because of the insolvency of the defendants. To this work must be added judgments in cases seeking other than moneyed relief, such as ejectment suits, injunction suits, etc., and suits in which it was sought to recover money but in which the court found for defendant.
If we thus take the expense to the public, as already shown, and add to this the expense to the litigants in the 12,380 cases, in the way of lawyers' fees on both sides, witnesses' fees or time on both sides, incidental expenses on both sides, loss of time and neglect of business on both sides in preparing for trial, attending court, etc., to say nothing of the worry and anxiety — it is a question whether the cost will not exceed the total results attained — that is, whether it does not on the average cost us more to secure for a man his rights than they are worth to him. Just what this expense and loss to litigants and witnesses would average, it is of course impossible to say. It has been variously estimated at from $150 to $250 to each side, or from $300 to $500 in each case. If this estimate is nearly correct, then there is little doubt that the expense and loss amount to more than can be realized on all the judgments rendered, or than would have been required to settle all matters in dispute.
There can be no doubt that, if we had encouraged arbitration, instead of discouraging it, a great saving would have been effected to both public and litigants. But instead of encouraging a speedy adjustment of disputes, by having parties submit their claims to arbitrators selected by themselves, the courts have almost invited the party defeated in an arbitration to come into court and tie the whole matter up for several years, and then have often set the award aside on purely technical grounds.
What I would respectfully urge upon the consideration of the General Assembly is an amendment of the law so as to provide:
First. That in all courts of record in this State the judge shall orally state the law governing the case, as was the practice at common law and is now the practice in the Federal courts.
Upon this point I will simply add that the statute requiring the instructions to be in writing was passed in order that there should be no dispute as to what the charge was; and inasmuch as the law at present provides for a stenographer to attend the sittings of every circuit court to report the proceedings, the reason for requiring that the instructions be in writing no longer exists; and as there generally is not time to write a comprehensive charge, and, consequently, cases are frequently submitted in an unsatisfactory manner to a jury, the law should be changed. What we need is to restore trial by jury more nearly to the condition and form in which it existed at the common law and still exists in the Federal courts, taking away, however, the power of one man to thwart justice; and when this is done, this system of trial will remain the best that has yet been devised. On the last point I will add that, in all other important, and even vital, matters, we accept the decision of the majority. A majority settles all questions of taxation and expenditure, all questions of peace and of war. A majority decides who shall make the laws. A majority decides what shall be law, and, finally, a majority decides who shall interpret and administer the law. In short, questions which reach to the very hearthstone of the citizen, and involve the existence of our institutions, are settled by the majority, and if, concerning any of these matters, a man were to urge absolute unanimity, we would question his sanity. But in determining a dispute over property, we put it into the power of one man — be he rogue, or crank, or sullen fool — without any risk to make a miscarriage of justice, or a farce out of a proceeding which may have consumed days and have cost both the public and the litigants large sums of money. And when asked why we permit such an anomaly, our only answer is, that they did things in this way more than a hundred years ago; when in truth trial by jury then was a very different thing from what it is to-day, for then the judge practically tried the case. If in civil cases we were now to accept a verdict of three-fourths of a panel, we would preserve all that is conservative and useful in our jury system, and would put an end to the "funny verdicts" that we hear about, and which are generally due to one man; and particularly would we put an end to the tampering with justice, which in large cities is a serious evil. I am in favor of trial by jury, and am opposed to its abolition; but the system is now so hampered as to make it a kind of absurdity. Let us make it a rational institution, and it will command the respect of everybody.
Second. That when rendering judgment on the merits in any case in a court of record, the court shall fix a reasonable attorney-fee, to be paid by the losing party to the winning party; Provided, that if it
138appears that an offer to compromise had been made and kept good by the losing party, and no more is recovered than had been offered, then no attorney-fee shall be allowed for what was done thereafter; and provided, that an attorney-fee shall only be allowed for trying a case on the merits.
Third. Either let the clerk of the court collect fees for everything that is done, and turn them into the county treasury, or else tax as costs, to go to the county, a reasonable sum for every day, or fraction thereof, which a case consumes at the trial; so that the non-litigating public may at least partially be relieved of the burden of expense created solely by litigants.
Fourth. That before any appellate court or the supreme court shall reverse a case and send it back to be tried over, the judges of such court, or a majority thereof, shall state, in writing, that an in-justice has been done the appellant in the judgment on the merits by the trial court; and shall also specify wherein such injustice consists.
As to this fourth suggestion, I will simply say that if the framers of the Constitution, and the people in adopting it, intended, in creating a system of jurisprudence, that courts should be places for lawyers to fence and judges to theorize, and that cases should be treated simply as a corpse in a dissecting-room — that is, used to illustrate a principle — then no change should be made, for in many cases the present system produces everything that could then be desired. But if the object in creating and maintaining courts was to do justice between man and man, and if rules of procedure were to be used simply as means to this end, then no reasonable objection can be urged against this provision. The trouble now is that we lift cases into the domain of opinion where there always is a diversity of views, and then, on points which settle nothing and do not decide the merits, we keep cases bounding backward and forward like a foot-ball, to the ruin of litigants — the appellate court reversing the trial court, and the supreme court reversing the appellate court.
Fifth. That if a matter is submitted to arbitration, the award shall be final, and shall be set aside only for fraud; and that when set aside, the arbitrators shall make a new award; and that in cases of mistake, or where the award is uncertain, the arbitrators may amend it or correct it.
In conclusion, let me remark that in the mercantile world, in the manufacturing world, in agriculture, in medicine, in fact, in nearly every field of knowledge or human activity, there has been an advance, a steady improvement, a movement in the line of common sense, an honest effort to keep abreast of the spirit of the nineteenth century;
139while in our methods of administering justice we seem rather to have retrograded. What changes we have made in this State have tended rather to complicate than to simplify. A century ago trial by jury in civil causes was simple, expeditious, and, upon the whole, satisfactory. We have hampered and crippled it in its workings until many good people are seriously advocating its abolition. A century ago the courts of appeal wrote opinions that were short and to the point, and generally decisive of the case; now, courts of appeal, not only in this State, write long essays — learned disquisitions which frequently evade the main question and settle nothing. On behalf of our great profession, I ask, "Cannot we, also, go forward?"
Very truly yours,
JOHN P. ALTGELD,
Judge of the Superior Court.
Chicago, February 12, 1889.