64
The Green Bag
ous. Cases in which a lawyer is technicalities of procedure or of evi adequately paid as a rule are those in dence. The objection that is commonly taken which he succeeds in winning a just cause, and in winning it promptly. to this doctrine, so far as it applies to When a case has been tried two or three the review of cases that have been tried times the client becomes very sick of it before a jury, is thus expressed in a and does not as a rule lend a ready ear letter that I have received from one of to the suggestion of a suitable fee. If the federal judges, to whom I sub we were to be guided only by our own mitted the proposed bill. He puts it interests, we should still advocate such thus: "If an Appellate Court either improvements in the administration of affirms or reverses because of its own opinion as to the merits, it substitutes justice as would dispose of con troversies speedily, and upon the a trial by judges for a trial by jury." merits. If that were the case, there My reply to this is that it misconceives would be more law suits and fewer the scope of the proposed reform. So far from depriving the verdict of the arbitrations. jury of its value, it tends to establish In conclusion let me say that the pre cise language of the Act recommended the verdict. Long experience in the trial of cases by the American Bar Association was criticised when the subject was before before a jury, and conversation with this Association in 1907. The language intelligent jurors of my acquaintance, used is taken from order 39, rule 6, of has convinced me that jurors pay much the Rules of the English Supreme Court less attention to the fine points of evi of Judicature*; which has been in force, dence, or to nice distinctions in the with entire success, for twenty-six years. charge, than the judges generally seem The language lately proposed by the to suppose. I am satisfied that in more President-elect is this: "No judgment than half the cases in my own practice, of the court below should be reversed where judgments have been reversed on except for an error which the court, questions of evidence, the ruling in the after reading the entire evidence, can court below did not affect the verdict affirmatively say would have led to a in the slightest degree. This being the case, it seems to me in the highest degree different verdict."t unjust that the parties should be put I hope sincerely that we may not to the expense and delay of a new trial. spend our time in discussing the exact Therefore, as a practising lawyer, it is language which should be adopted. That clear to me that the presumption of the is a matter which can better be dealt Appellate Court should be that a ruling with in committee. The essential point on the evidence, which it deems errone is to provide that the judgment shall be ous, did not affect the result. It should affirmed unless the appellant shall make be for the defeated party to satisfy the it affirmatively appear that the error Appellate Court that the ruling was complained of has prejudiced him upon actually prejudicial to him upon the the merits. In otherwords, the Ameri can Bar Association was distinctly merits. The rule which the committee has of the opinion that there is no ab endeavored to express in the proposed, solute right to the observance of any legislation is actually in force in New. •WUson's Practice, p. 331. Hampshire and in other jurisdictions. 115 Yale Law Journal 1 .
