The Law’s Delay (1890)
by Samuel Williams Cooper
IN view of the swiftness with which social forces now move it seems strange that the administration of the science of the law the stronghold of all government and society should in so many States not only retain the old evils of delay but fail to make provision for fresh hindrances arising from the changed conditions of the world. Yet the neglect is undeniable. The judges in some of our higher courts cling to their gowns but have lost their snowy wigs and in the lower tribunals they appear in the street dress of the average citizen but although they have shaken off the artificiality of days gone by delay still hangs closely to them. Does legal procedure keep pace in its improvement with the other sciences of the world? Do the courts do their work with the business promptness and efficiency which society exacts of private bodies?
It does not need a member of the profession to give the answer for the many who have served as jurors, witnesses or litigants have had abundant proof that the country and its people have far outgrown the methods provided for the administration of justice. They judge the system fairly by contrast with the other departments of social life. They see facilities in other matters everywhere the result of private enterprise but the perfecting of the laws and the enforcement of them retrograde or at the best stand still. The legal profession is the sufferer. The rules of the various trade associations throughout the country contain provisions that differences between members shall be settled by arbitration before an appropriate committee and the fact that any member appeals to the court for his rights is made the ground for his expulsion from the society.
The law’s delay has been a reproach from time immemorial. In the Great Charter extorted from King John more than six hundred years ago a solemn promise was exacted from him that he would sell or deny or defer right or justice to no man and further provisions were made for the holding of assizes in every county four times a year and the disposition of every case ready to be tried. Kingly promises would seem to be as vain as those of American politicians for four hundred years afterwards Shakespeare makes the law’s delay one of the ills of life which led Hamlet to think of suicide. The chief end of all human systems of government has been repeatedly asserted to be in the dispensation of justice certainly the adjustment of the rights of man against man the prompt acquittal of those wrongfully accused and the conviction of the guilty are matters of an interest so vast that to speak of them is to show their importance.
In some of the States of the Union the old common law procedure by which a suitor is entangled in a maze of forms the violation of any of which means certain defeat is still retained but in most of them reforms of various kinds have been made in the systems of pleading so that whatever may be the delays they are usually connected with some matter of substance It is to be regretted that no statistics are kept by any of the States on a subject of so much importance. As to most other affairs minute details are recorded by public officers, but concerning the laws which are to enforce the rights connected with them there is entire neglect to make any note of their workings. From the proceedings of the American Bar Association however, and statistics gathered by them, it is plain that the evils of delay in the disposition of legal work are widespread and are a serious menace to the development of business and the rights of the people.
In the frailty of human systems some delay it is true cannot be avoided and some is absolutely necessary. Controversies are heard for the purpose of ending them and therefore should be heard fully. There are subjects constantly arising concerning which no precedent is to be found, and these must be argued and re-argued in order that the fullest discussion may be had and a rule of action laid down which will not only be just in the particular case under discussion but will serve for all similar cases that may occur in the future. The enormous growth of railroad interests and the system of trusts arising from the competition of trade are instances of new conditions giving rise to novel and serious questions of law which need careful and mature reflection before a proper decision can be rendered.
Judicial procrastination is without doubt a great fault, but the public do not plead for haste in the matter of the adjustment of their rights they do not complain of slow work but of the long pauses when no work at all is done of the vast accumulation of untouched business.
In our own courts, one of the principal cause of delay is found in the fact that cases called for trial are continued or postponed because the counsel on one side leaves word that he is engaged in court elsewhere when he may be purposely absent in order to delay the cause. While an officer of the court is hunting him up another case is called for trial and occupies the time of the court until all chance of reaching the original case is gone for the term. In this way a defendant who has no real defense is free for three months longer in which time he may fail or remove or convey his property so that when a judgment is obtained it is worthless. The absence of witnesses without legal excuse is often ground for the same action. Strict rules on these points are in existence but their enforcement is always uncertain depending greatly upon the counsel interested and the condition of the calendar.
Contrary to the opinion of a large portion of the public, the profession of the law is not served by hard times and business difficulties nor is it by delay in the course of justice. Good times and prompt dispatch of business are to lawyers as to all others the conditions of true success. They have through their organizations spoken to this effect with no uncertain voice but so far without avail. Sir Matthew Hale many years ago said of the lawyers of his day. By long use and custom men especially that are aged and have been long educated to the profession and practice of law contract a kind of superstitious veneration for it beyond what is just and reasonable and perhaps this is the reason why our judges cling so fondly to the slow and laborious methods of olden times. The Bar of Philadelphia through its Association a year or two ago prepared a careful memorial to the judges of our Common Pleas Courts asking for relief from the delays in the conduct of business by them and set out a practical method of reform in entire accord with the wishes of the profession generally. Up to the present time no effort seems to have been made to give the suggestions effect and even such a wholesome provision as that when the judge of one room has finished the cases before him for the day he shall take up the cases entitled to be next called in the adjoining room has been neglected. Official stenographers, the appointment of whom by the judges is mandatory under the law, are never seen in our courts and the demand consequent expense to litigants and to the county cannot be estimated. If two such plain requirements are neglected the lack of advance in everything else can be imagined. Cases involving vast sums the delay in the decision of which may mean bankruptcy or misery to the litigants are allowed to stand over on frivolous excuses or after hearing are held under advisement for weeks or months and then decided without a line of opinion so that after appeals to the Supreme Court the cases have to be sent back for correction before they can be even properly reversed. The judges of the Orphans Court are an exception which proves how much can be done by the judiciary to correct the evils of delay. A vast amount of business passes through their hands in the number of cases and the Valuable interests involved far exceeding the Courts of Common Pleas, yet no case remains unheard upon the calendar without just cause for more than a few weeks and decisions are promptly written and filed concerning questions of even slight importance. There is an atmosphere of business in all the proceedings in the Orphans Court and the small number of appeals and reversals shows with what accuracy and efficiency litigation there is conducted.
The trial lists of our Common Pleas Courts for the Fall Term of the last year contained upwards of two hundred and fifty cases over four years old, some of them over ten, and countless cases over two years old. These are called for trial three times during the year and are subject to be tried during several days at each calling A case four years old may mean at least twenty five or thirty attendances of litigants and witnesses and if the parties are non residents as many trips from distant points It is not to be wondered at that citizens suffer outrage rather than go to the delay and expense of an action at law when the procedure is so slow that before the case can be tried; witnesses may die, and evidence be forgotten and vanish, and success in the end prove a worthless victory. The Charter from King John provided for as many terms of court as are held here now and further required that all cases ready for trial should have a hearing without delay. It would seem that we have less care for our rights than our ancestors for cases are now allowed to stand for many years and suitors call in vain for their trial. The profession and the public are urgent for redress and those who are in a position to give relief should see to it that a matter of such vast importance is no longer neglected. The laws should be fixed but their administration should keep pace with the necessities of society for upon their prompt and efficient enforcement depend the safety and welfare of the State.
First publication: The American: a national journal, Volumes 19-20. Page 395.