for examination before trial and the like operate to settle the real issues of the cause prior to the trial; they merely mitigate the element of surprise as to some evidentiary matters. The first successful attempt in any English-speaking jurisdiction to settle issues at a pretrial stage seems to have been made in Scotland in 1868. The Scots practice served as a model for the introduction in England in 1883 of the "summons for directions" whereby most cases are now brought before a master or judge after the pleadings have closed and before trial, for the purpose of settling the pleadings and securing admissions of fact. A somewhat similar system of pre-trial procedure is now beginning to be introduced with success in the United States.1 The Circuit Court of Wayne County, Michigan, was the pioneer in this country; the system is now in successful operation in Boston, Dallas, Detroit, Los Angeles, and to a somewhat lesser extent in Chicago, and has recently been introduced in Cleveland; 3 moreover, the new Federal Rules of Civil Procedure provide for its introduction into the federal district courts if desired by the district judges. The mechanism of this pre-trial procedure is simple enough. After the pleadings have closed, the attorneys for the parties appear before a judge in an informal session of court which may be better described as a conference than as a hearing. The judge ascertains from counsel what facts are in dispute, what admissions either party will make, and whether there are any matters which may be stipulated. He examines the pleadings to see whether they properly present the questions.actually in issue, and orders amendments if necessary. He also

1 The best general discussions of the system are Sunderland, The Theory and Practice of Pre-Trial Procedure (1937) 36 Mich. L. Rev. 215; Rep. Section of Jud. Adm., A. B. A. (1938) 23-39; Carver, Should Florida Adopt the Pre-Trial Procedure as Set Forth in the New Federal Rules? (1939) 13 Fla. L. J. 226; Note (1939) 33 Ill. L. Rev. 699–706.

2 The system was put into effect in the Wayne County Circuit Court (Detroit) in 1929. The results of seven years of successful operation of the system are summarized in Cooper, Pre Trial Procedure in the Wayne County Circuit Court in Sixth Annual Report of the Judicial Council of Michigan (1936) 61-75. 3 See the following special studies: Boston: Twelfth Report of Judicial Council of Massachusetts (1936) 10-11; Third Annual Report of the Judicial Council of the State of New Yrok (1937) 224, 227-28, 232-36; Pinanski, The Superior Court - Jury Pooling, Auditors, Pre-Trial (1938) 23 Mass. L. Q. No. 2, 14, 18-31, 8 Law Soc. J. 120, 125-38. Chicago: Note (1939) 33 Ill. L. Rev. 699, 706-709. Cleveland: Diehm, Pre-Trial Practice and Procedure (1939) 10 Cleveland B. A. J. 167; Pre-Trial Procedure Outlined (1939) 10 Cleveland B. A. J. 183. Dallas: Alexander, Pre-Trial Procedure (1939) 2 Tex. Bar. J. 65. Detroit: See note [4] supra. Los Angeles: Larwill, PreTrial Hearing in Superior Court (1937) 12 Los Angeles B. A. Bull. 257. . .

Rule 16. For an account of the effective utilization of this rule in the Federal District Court for Massachusetts, resulting in the elimination of 171 cases out of 313 on the jury calendar and the transfer of 41 more to the jurywaived calendar, see Sweeney, Expert Use of Pre-Trial Docket in Federal Court (1939) 23 J. Am. Jud. Soc. 11. For a recent example of intelligent exploitation of the possibilities of Rule 16, see Deltox Rug Co. v. Colonial Coverlet Co., 29 F. Supp. 122 (E. D. Tenn. 1939).

inquires into the possibility of settlement of the case. At the conclusion of the conference, he prepares a pre-trial memorandum which will govern the future course of the action unless good cause to the contrary is shown at a later stage. . . . Failure of counsel to appear at the pre-trial session results in judgment of dismissal or default which will be final unless later relieved against for cause by the pretrial judge.1

The practical advantages of this pre-trial procedure have been demonstrated clearly enough. The pleadings may be shaped to present the real issues of the cause; admissions or stipulations may be secured as to matters not in real dispute which will greatly lessen the amount of formal proof which the parties must adduce at the trial. . . . Moreover, the pre-trial procedure results in a large number of settlements before trial. All these factors cooperate to save the time of trial judges and juries, and to aid in keeping the trial docket current. For example, the introduction of pre-trial sessions in the Superior Court for Suffolk County, Massachusetts, has been one of the main reasons why the delay in trying jury cases in that court has been reduced, within a four-year period, from over four and a half years to less than two and a half years.2 In Detroit, the delay in the law docket was similarly reduced from four years to one between 1929 and 1936.3 When administered by a strong judge, the value of pre-trial procedure of this character is no longer doubtful.

There seems large room for doubt, however, whether this pre-trial procedure goes far enough. In most courts at least, the whole ritual of fact pleading must be gone through with before the case can be placed on the pre-trial calandar. It is still possible for the parties to object to the pleadings by demurrer or equivalent motion, and to secure preliminary hearings on such objections. In some states, interlocutory appeals are possible from decisions at those preliminary hearings, involving further delay. While the pre-trial judge may settle the pleadings by ordering amendments, he does not control the

1 This is the practice in Boston. In Detroit, failure of the plaintiff in an action at law to appear at the pre-trial conference results in dismissal of the trial praecipe, while non-appearance of the defendant merely deprives him of the opportunity to amend his pleadings. . . . .

....

2 Of 6084 cases on the pre-trial calendar in Suffolk County in 1937, 2228, or 36.6%, were disposed of at the pre-trial call. Of 4703 cases on that calendar in 1938, 1657, or 35.2%, were similarly disposed of. Moreover, in each of those years, over one-third of the cases placed on the jury list after pre-trial were settled before trial. "It is a fair assumption that those later settlements, in par at least, were the result of the door opened by the pre-trial discussion." (Personal communication from Hon. Edward B. Hanify of the Massachusetts Superior Court, [then presiding over pre-trial sessions in Suffolk County.)

3 See Cooper, Pre-Trial Procedure in the Wayne County Circuit Court[.] in Sixth Annual Report of the Judicial Council of Michigan (1936) 61, 72. In 1937, out of 5768 cases ready for trial, 3198, or 55%, were disposed of at the pre-trial hearing. Eighth Annual Report of the Judicial Council of Michigan (1938) 11.

pleading stage of the litigation. Moreover, the discovery of evidence by examination before trial, although obviously related to the problem of settling the real issues in the case, is a matter for counsel independent of the court at the pre-trial session. Thus the pre-trial procedure does not prevent surprise at the trial in matters of evidence; in many cases, all it does in this regard is eliminate the necessity for formal proof of some undisputed matters. Finally, it has been independent of the procedure now available in most jurisdictions for dealing with insubstantial claims or defenses by motion for summary judgment.1

FEDERAL RULES OF CIVIL PROCEDURE (1938).

RULE 16. PRE-TRIAL PROCEDURE; FORMULATING ISSUES. In any action, the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider

(1) The simplification of the issues;

(2) The necessity or desirability of amendments to the pleadings;

(3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;

(4) The limitation of the number of expert witnesses;

(5) The advisability of a preliminary reference of issues to a master for findings to be used as evidence when the trial is to be by jury;

(6) Such other matters as may aid in the disposition of the action.

The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish by rule a pre-trial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or to non-jury actions or extend it to all actions.2

1 See Byers v. Clark & Wilson Lumber Co., 27 F. Supp. 302 (D. Ore. 1939); Miles Laboratories v. Seignious, 30 F. Supp. 549 (E. D. S. C. 1939). See also Sunderland, "The Theory and Practice of Pre-trial Procedure," 36 Mich. L. Rev. 215 (1937); Kennerly, "The Pre-trial Conference under the Federal Rules," 18 Tex. L. Rev. 188 (1940).-Ed.

2 As to the constitutionality of pre-trial procedure for the simplification and settlement of issues, see Ex parte Petersen, 253 U. S. 300 (1920), upholding the appointment by a federal district court of an auditor, where Brandeis, J., said (p. 310): "In so far as the task of the auditor is to define and simplify the

SECTION 4

TRIAL

MODERN developments in the law of civil procedure have affected the trial of actions less than any other part of the adjective law. The distinction between law and equity remains important in determining whether a jury trial may be had, as we have seen, and the mode of taking testimony has not changed greatly since the incompetency of parties and interested witnesses to testify in actions at law was removed and the method of trial in equity cases was changed from that of hearing on depositions to trial by witnesses in open court." Where the trial is by jury, the methods of controlling the jury by motions for nonsuits or directed verdicts or by motions for a new trial after verdict retain their importance.

It cannot be said that present methods of trying actions even under the most modern procedure afford a wholly satisfactory means of ascertaining the facts and settling controversies which are brought to court. The system of trial is an adversary system, and tends to become a battle of wits between counsel, with undeserved victory often attained by the more skilful, the more experienced, and sometimes the more highly-paid. This is especially true where as in

issues, his function is, in essence, the same as that of pleading. The object of each is to concentrate the controversy upon the questions which should control the result. United States v. Gilmore, 7 Wall. 491, 494; Tucker v. United States, 151 U. S. 164, 168. No one is entitled in a civil case to trial by jury unless and except so far as there are issues of fact to be determined. It does not infringe the constitutional right to a trial by jury, to require, with a view to formulating the issues, an oath by each party to the facts relied upon. Fidelity & Deposit Co. v. United States, 187 U. S. 315. Nor does the requirement of a preliminary hearing infringe the constitutional right, either because it involves delay in reaching the jury trial or because it affords opportunity for exploring in advance the evidence which the adversary purposes to introduce before the jury. Capi- . tal Traction Co. v. Hof, 174 U. S. 1. In view of these decisions it cannot be deemed an undue obstruction of the right to a jury trial to require a preliminary hearing before an auditor."

1 The disqualification of interested witnesses other than parties was removed in England in 1843 by Lord Denman's Act, 6 & 7 Vict. c. 85, and the disqualification of parties was substantially removed in 1851 by 14 & 15 Vict. c. 99, largely as a result of the very effective agitation of Jeremy Bentham. The change in the United States begins with the report of the New York Commission on Practice and Pleading in 1847, and has been made in all the states. See 2 Wigmore, Evidence (3d ed. 1940) §§ 576-577.

2 See pp. 632-633, 692–693, supra.

3 It is unfortunately true that: "Regardless of reforms in procedure and changes in the substantive law in the books, the traditional American system of judicature and bar organization gives a large advantage to the long purse in

some states the powers of the trial judge have been so curtailed as to make him a mere moderator at the trial. The matter has been graphically put by Morgan: 2

"This [Goldstein, Trial Technique] purports to be a lawyer's guide book for the trial of law suits as they are actually conducted. As such, it is entitled to first rank. It is replete with internal evidence that the author knows what he is talking about, knows how judges and lawyers and clients and witnesses and jurors behave in the courtroom, and knows it, not from research in the library or questionnaires submitted to practitioners and deans of law schools, but from tough and toughening personal experience in the forum. In the light of that experience he accepts a trial for what it is-a game in which the contestants are not the litigants but their lawyers.

The lawyer who is really trying a case, not merely going through the motions, has all his faculties occupied. He must constantly watch his opponent, observe the judge, keep an eye on the jury, and see that the record is being made so as properly to save for review all prejudicial rulings—all this, while he is examining or preparing to examine that most fallible of human beings, the witness. Consequently he must have had his course mapped in advance. He must have come equipped with defenses against anticipated attacks, with safeguards against the always expectable unexpected, and with stratagems to overcome or conceal personal weaknesses of himself, of his client, and of his witnesses. None of this can he do without the most careful and painstaking preparation upon both facts and law. He must have left no possible source of information unexamined, and particularly must he have summoned to his aid every device developed by experts. He must have employed to best advantage the assistance available through discovery before trial, depositions, and other preliminary proceedings. He must have. learned and be able to use the means for securing the most favorable jury from the panel presented. He must have planned his opening statement and the method of presenting his evidence, documentary and oral, so as to make it most effective and persuasive. He must have thought through the rules of evidence and their applicability to the material known to be available or anticipated as possibly avail

any lengthy and complex litigation" [Simpson, "Fifty Years of American Equity," 50 Harv. L. Rev. 171, 204-205 (1936)], or for that matter in any litigation. How this situation is to be corrected is one of the pressing problems of the American bar.

1 As by prohibiting the trial judge from commenting on the evidence, requiring him to give as instructions only such abstract propositions of law as are requested by the parties, or even in a few states requiring the charge of the court to precede the arguments of counsel.

2 Morgan, Book Review, 49 Harv. L. Rev. 1387 (1936), reviewing Goldstein, Trial Technique (1935). Footnotes omitted.