THE APPLICABILITY OF ENGLISH METHODS the place of his leader, no great injustice is likely to be done, in case the leader is engaged in another cause and not able to take part in the trial, still less so if engage ments of junior counsel alone prevent his attendance. This system involves the employment of three men for the work which with us is usually done by one, since in every important case, there, as here, counsel is likely to have clerical assistance. With us, the refusal to postpone a trial on account of engagements of counsel would ordinarily result, except in cases where, by reason of the importance of the subject matter more than one counsel is retained, in forced and hurried preparation on the part of another attorney for the trial. Such preparation could not be adequate to enable •counsel to do justice either to himself, to the court, or the client. Second. — Arguments of counsel in Bane without briefs or reference to authorities, and oral decision by the court at the close of argument, would necessarily result in hasty decisions, not well considered as to either the law or the facts. It is difficult to understand how a court can do justice to an argument involving the citation of numerous precedents, which must be dis cussed and distinguished without oppor tunity for examination of the authorities relied upon. Nor is it quite clear how ade quate consideration can be given by the court to the legal points involved on appeal, where no opportuntiy is had for delibera tion and discussion as to the law and the facts. That this method is possible in England is a high tribute to the learning of the Bench and the Bar, and can only be successful where the members of the Bar have been trained specially in the trial and argument of causes, and the Bench has been selected from lawyers who have spent their lives as barristers, devoting their entire time and attention to this branch of legal work. Third. — The opinion of leading lawyers in this country seems to be against the
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allowance of any costs, other than a small docket fee, as in the United States Supreme Court, or as allowed by the practice in some of the states, rather than to favor the allowance of costs as full indemnity to the defeated litigant Much opposition has grown up, and very reasonably so, in New York, to the power of the court to award an allowance of a percentage upon the recovery or amount claimed as the case may be by way of costs to the successful party. Many questions litigated are so exceedingly close, and the final determina tion so uncertain, that it seems unfair and unreasonable to charge a defeated party with the entire expenses of the litigation, where possibly he may have succeeded in both lower courts, and only been reversed by a majority of a single vote in the court of last resort, as occasionally happens. No degree of human foresight could possibly have anticipated with any degree of cer tainty the final outcome, and in such cases large allowance of costs operates as a pen alty. While the imposition of large sums as costs may discourage litigation, it cer tainly tends to injustice by preventing par ties, who have fair cause for contention, from taking the judgment of the court, by reason of the enormous expense entailed. It is said that in a commercial case recently tried in the High Court of Justice, where recovery was for £4000, an award of £6000 costs was made against the defeated party. The theory of the English practice being that a party should be substantially indem nified for the expense of the litigation. The outcome of this state of affairs is that a prudent business man in England dare not enter upon litigation, no matter how strongly he may feel that his rights are being^ in fringed upon, since defeat means in many cases financial ruin. I must necessarily limit myself to what seem to be the more important and prac tical considerations in connection with re forms likely to facilitate the disposition of litigated business.
