interest appears of record, may examine any person, including the judgment debtor, in the manner provided in these rules for taking depositions or in the manner provided by the practice of the state in which the district court is held.1

SECTION 8

THE FUTURE OF CIVIL PROCEDURE

No SYSTEM of procedural law is perfect. Some of the most serious obstacles in the road of procedural reform have been illusions of perfection in the minds of men concerned with the study or administration of a particular procedural system. The satisfaction of Stephen and Baron Parke with the technical and already outmoded commonlaw procedure under the Hilary Rules, Lord Eldon's belief that the practice of the Court of Chancery satirized in Bleak House was hardly susceptible of improvement, the uncritical affection of many American lawyers for the peculiarities of their own state practice which blocked for a generation legislation authorizing the Supreme Court to make rules of procedure for the federal district courts, are examples. The struggle for a rational civil procedure in England and the United States has been an uphill one, and there is still much to be done. But it would be a great mistake not to recognize that large advances have been made in the last centúry.2

We have surveyed the main changes in Anglo-American procedural law from the real actions of medieval England, the oral pleadings of the Year Books, the early equity of the justices in eyre, and the beginnings of the Court of Chancery, to the unified and modernized procedure of the Judicature Acts, the Federal Rules of Civil Procedure, and the more advanced code practice. At the conclusion of that survey it is appropriate to consider briefly certain general problems of the American civil procedure of the future.

Any attempt to approach the goal of an ideal system of procedural law involves compromise. What plaintiffs want is simplicity, speed and cheapness; what defendants want is assurance that they will not

1 Rule 69 (b) relates to execution against certain officers of the United States.

2 See the comprehensive review of Anglo-American procedural law during the last century by Millar, "The Old Regime and the New in Civil Procedure," in 1 Law: A Century of Progress (1937) 207. For a more detailed review of the American developments of the last fifty years, see Millar, “Notabilia of American Civil Procedure 1887-1937," 50 Harv. L. Rev. 1017 (1937). See also Finch, "Progress in Procedure — Past, Present and Future," 4 Brooklyn L. Rev. 1 (1934); Saxe, “The Renascence of Civil Practice in New York,” 7 Fordham L. Rev. 45 (1938). As to civil procedure in Canada, see Bergman, "A Brief Outline of Some of the Principal Differences between the Canadian and American Systems of Administering Justice," 3 Dak. L. Rev. 187 (1930).

A procedure which is simple, swift

be cast in judgment erroneously. and cheap may not be sure in doing exact justice, while the experience of the Court of Chancery shows us that meticulous insistence on complete abstract justice may involve great cost and delay. matter was well put by a Swiss jurist over a century ago:

2

The

"Simplicity, brevity, certitude, such are the distinctive characteristics of a good system of procedure.

From the standpoint of the plaintiff, who advances the claim, the route cannot be too simple or too short: for him every formality, every step-period is an evil.

From the standpoint of the defendant, against whom the claim is advanced, the merit of simplicity, the merit of promptness are not in first place for him that of certitude (sureté) holds the primacy. To reconcile the demands of these conflicting positions of the parties is a thing which has exacted our utmost care.'

"3

Aside from the intrinsic difficulty of the problem, the development of a rational procedural system in the United States has been hampered by what may be called a sporting theory of lawan idea that the purpose of the courts in civil cases is not to insure justice as nearly as may be by active intervention in the proceedings if necessary, but to afford a forum with an impartial referee in which the parties may fight out their disputes, with their lawyers in effect taking the place of the hired champions in the old trial by battle. This theory of procedure is most thoroughly applied in the adversary system of trial which we have already briefly considered. No system of procedure can be better than the society in which it operates wants it to be, and so long as a lawsuit is regarded by most lawyers and laymen as a lawyers' duel, changes looking toward a more rational procedure will come slowly.

The main line of progress în procedural law up to now has been in eliminating historical anachronisms. The most important example of this is to be found, of course, in the unification of procedure at law and in equity; but numerous others will occur to the student if he thinks over the history of civil procedure. Future progress is

1 We are speaking of honest plaintiffs and defendants. One of the important functions of procedural law is to hinder the machinations of dishonest litigants.

2 Bellot, Loi sur la procédure civile du canton de Genève avec de l'exposé des motifs (3d ed. 1870) 12 (our translation). The first edition of this work was published in 1821.

3 This statement was made in explaining the reasons behind the Genevese code of civil procedure of 1819. As to civil procedure under the civil law system, see Amos, "Civil Procedure," J. Soc. Pub. Teach. Law (1932) 12 (general); Le Paulle, "Study in Comparative Civil Procedure," 12 Corn. L. Q. 24 (1926) (French procedure). See also Hazeltine, “Comparative Studies in the History of Civil Procedure," J. Soc. Pub. Teach. Law (1928) 12.

4 See pp. 886-889, supra.

largely connected with improvement in court organization and administration and with improving the standards and organization of the bar. Even an antiquated and imperfect system of adjective law will work reasonably well if the judges are able and just and if the lawyers who practice before them are competent and devoted officers of the court as well as representatives of their clients; the best possible paper procedure will fail to achieve results if the bench and bar are incompetent or have low standards of professional conduct. Improvement of the quality of bench and bar is the most important factor in improving civil procedure in action, as is being increasingly recognized.'

But there is much room for improvement in the adjective law itself, especially as regards pleading. The student is advised to consider the practicability of the rather drastic reform of pleading suggested in the following extract:

SIMPSON, "A POSSIBLE SOLUTION OF THE PLEADING PROBLEM". 53 Harvard Law Review 169, 196–206 (1939).3

We are now in a position to bring together some conclusions from the experience of the past as to the requisites of a satisfactory system of pleading. The most obvious and at the same time the most fundamental are these: First, that pleading cannot be wholly separated from other pre-trial procedures without heavy cost in delay and expense to parties and public; second, that the attorneys for the parties cannot be allowed wholly to control the pleadings without similar heavy cost. Moreover, if we reexamine the purposes which should be served by the pleadings in an action in the light of procedural experience in England and the United States, we will find, I think, that means have been worked out for effectuating all of these purposes at least partially, but that those means have never been effectively combined into a single integrated system.

The most obvious purpose of the pleadings is to give notice to the defendant of the nature of the plaintiff's claim and to the plaintiff of the character of the defenses which he must meet. The issue pleading of the common law did neither effectively in most cases. The fact pleading of the codes, whatever its intended operation, has not been appreciably more effective in this regard, mainly because it affords no systematic means of eliminating claims or defenses which are

1 The activities of some of the bar associations and of the American Judicature Society have been of large importance in this connection.

2 On the general topic of needed improvements in American adjective law, see the pioneer article of Pound, "Some Principles of Procedural Reform," 4 Ill. L. Rev. 388, 491 (1910). See also Clark, Code Pleading (1928) § 12. 3 Footnotes omitted.

urged in bad faith or without reasonable foundation; and it involves as great scope for procedural jockeying and delaying tactics by attorneys as did the common-law system. A system of notice pleading, while eliminating this possibility of procedural abuse, would be substantially as useful as either issue or fact pleading in effectuating the purpose of notice to the parties. But, to insure the development of the real issues before trial, it would have to be supplemented by a regular system of pre-trial hearings or conferences to ascertain what questions were actually controverted in good faith.

But the parties need more than notice of the seriously-made claims and defenses of their adversaries. They need to prepare for trial, to gather evidence to support their own contentions, to get ready to rebut evidence adduced against them. If this is to be done efficiently, more is needed than accurate notice of serious issues and relief from formal proof of undisputed facts; there must be adequate knowledge of the evidentiary facts upon which one's adversary will rely to support his case or attack one's own. Discovery in equity, examination before trial and related procedures under the codes, are directed to supplying this knowledge to some degree. The more such knowledge there is available to each side before trial, the less the opportunity for tactical surprise and the less the resemblance of the trial to a battle of wits. Moreover, the accurate determination of serious issues requires the very same knowledge. It would seem, therefore, that in so far as it is one of the purposes of the pleadings to facilitate preparation for the trial of an action, experience calls for an integration of the mechanism for fact-discovery with the mechanism of pre-trial formulation of issues, and that this integrated pre-trial procedure be superimposed upon a simple system of notice pleading.

A major purpose of the pleading stage of litigation is to prepare the case for easy and intelligent consideration by the triers of the facts and law through an accurate formulation of the issues to be decided. . . . no system of pleading alone can accomplish this even tolerably well. If an adequate system of pre-trial procedure be adopted, however, notice pleading will do as well to start the proceedings as any other system and will avoid much expense and possibility of delay. But unless the pre-trial procedure not only involves consideration of such evidence as may be obtained by either party before trial by examination of the adverse party or otherwise, but also makes available to the judge the technique of dealing with fictitious or ill-founded claims or defenses available under modern summary judgment procedure, it will fall short of maximum efficiency in clarifying and narrowing the issues to be dealt with at the trial. The pretrial hearing should not only cease to be wholly separate from procedures for pre-trial discovery, but should afford an opportunity for summary judgment in every case on any matters as to which there is no triable issue whether claims, defenses, or specific questions of fact without procedural formalities and as a matter of course.

When a pre-trial hearing of this scope has been had, the cause if still to be tried will have been reduced to the narrowest possible issues, all seriously contested on the basis of some evidentiary support, and the purpose of informing court or jury of the issues will be effectuated in a way which means something.

So long as the civil jury remains popular in the United States, so long indeed as federal and state constitutions retain guarantees of jury trial in civil actions at law, one purpose of the procedure in an action before trial will be to separate questions of fact to be decided by a jury from questions of law to be dealt with by a judge. The common-law system of pleading was well adapted to effecting this separation. The rule that a party at each stage of the pleading process must either plead or demur was designed mainly for that purpose. To be sure, failure.to raise an issue of law by demurrer did not necessarily mean that it could not be raised later by motion for judgment non obstante veredicto or in arrest of judgment, or even by writ of error after judgment had been rendered, but at least the pleading process determined with mechanical accuracy the tribunal of decision. Under the codes, the same system has prevailed in substance. It may be possible to plead and demur together, which was forbidden at common law; it is ordinarily possible to attack the pleadings at the trial, which the common law did not permit; but the essentials are the same. Even under the new Federal Rules, a motion objecting to a complaint for failure to state a cause of action' or for judgment on the pleadings will be heard and determined before the trial on the application of either party unless the court orders that this be deferred until the trial. One of the criticisms which has been made of proposed systems of notice pleading is failure to provide for ready separation of issues of fact and law and the normal determination of the latter before the trial. There is some force in this criticism; but there would seem to be at least equal objection to the common-law and code practice of allowing a party so to frame his pleadings as to obtain a separate hearing, as of right, on alleged issues of law. Where a case involves an issue of law of substantial character, it may well be economical of time and money to decide it in limine. But in many cases such issues are raised merely for purposes of delay or as forlorn hopes, and in such cases a preliminary hearing is plainly enough undesirable. The matter seems one for the exercise of an informed discretion, and the time for exercise of that discretion would appear to be at the pre-trial hearing of the cause. The pretrial judge, after gaining familiarity with the case and superintending the formulation of the serious issues presented by it, can determine readily enough whether there are sufficiently substantial issues of law to render it probable that time will be saved by a preliminary hearing on them, or whether the facts should first be tried. Moreover, under modern systems of unified procedure, he can best determine the often vexatious question of whether the facts are to be tried by a jury as