432
The Green Bag
That prolixity is the great besetting sin. Directness and simplicity are found only in the lower walks. A merchant su ing a delinquent customer simply files his account with a near magistrate. Every body understands what he means by his bill of particulars — that the debtor at the times specified bought the goods de scribed at the prices set forth, and that the bill is due and he fails to pay. But if the amount is considerable and the merchant employs a member of the bar to bring action in a higher court, what happens? No inferences or implications obtain in that higher atmosphere of learning and experience, a place where, if ever, they should. So in drafting his pleading the lawyer drives a substantive and six and by a plentiful use of "saids" and "aforesaids" he distinguishes the parties from all other persons living or dead and describes the subject-matters as accurately as if attached as exhibits. A simple bill in equity for the foreclosure of a mortgage, instead of being in a few brief paragraphs telling the story as it would be told amply and intelligibly in a book or newspaper, is crowded with surplusage and repetition. The case goes to an appellate court on a record that might be tithed to advantage. There was a case, an ordinary criminal case in which the record covered more than three thousand printed pages, of which the assignments of error took more than four hundred. Besides, there were over eight hundred pages of printed briefs. The opinions of the courts? The books speak for themselves. It is said that the law, the real law, is being swamped. It is common remark that the ablest lawyers draft the most concise pleadings, submit the briefest briefs and make the shortest arguments. There are geniuses among them who think and act that way. They go, as it were, straight through the tangled forest, with
an instinct for direction. Others reach the same end, but what a tortuous trail they leave! Acute perception bent upon the ground notes the small dispensable things. Prolixity is, also the easy path for tired and uncertain minds. To a judge with whom I am most familiar it came from a disposition to pedantry. Early in his judicial career he deter mined that in writing opinions he would pursue the legal principles involved to their upper reaches, even to their foun tain heads, and also survey the country roundabout so that, besides some little personal renown, no subsequent traveler could lose his way. He found his indus try was not appreciated and that where the work went beyond the needs it was frequently inaccurate. And then one day he read of the functionaries in India who wrote "thirty-page judgments on fifty-rupee cases," and the author added, "both sides perjured to the gullet." But prolixity had become almost a fastened habit. All candid men will agree that for reproach our criminal procedure is in a class by itself. It would be humorous were it not tragic. Some of us flatter ourselves that our procedural eccen tricities are due to a tender solicitude for life and liberty and that it is better that the many escape justice than that the one innocent suffer, forgetting the while the rational tests and standards; and that society, having its rights also, has admonished by the frequency with which it has roughly shown distrust of criminal All of us justice have judicially heard these administered. things, and others, in various forms. To ignore them is neither wise nor consistent with duty. To be rid of such as have real foundation would make for happiness. To the glory of the profession which has in charge so much of the temporal inter ests of men the baser charge of infidelity
