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HOW CASES ARE CONSIDERED IN THE
C. B. GRAVES, EMPORIA.
One of the early ambitions of the average lawyer, is to represent the plaintiff in error in the Supreme Court and reverse the court below. When this ambition is realized, and the presentation of cases in the court of last resort becomes a material part of his practice, he often discovers that the court differs with him in a larger proportion of cases than he originally anticipated.
He is often disappointed, and sometimes disgusted with this, to him, manifest miscarriage of justice.
At times when in a reminiscent mood, he will recall the months of careful study, given to some important case; the exhaustive examination of cases made in his own, and the state library; the clear presentation of the legal questions involved, and the elaborate citation of decisions in support thereof, given in his printed brief; the oral argument in which he, as fully as the limited time given would permit, re-stated and emphasized the most important phases of the controversy ; that after the final submission of the case to the court, upon a review of his work, he was not only unable to discover that any material omission had been made, but on the contrary, found ample reason to congratulate himself with the belief, that every objection made to his contention, had been successfully met and answered, and nothing appeared to mar his sanguine expectations of success; and yet, after all this labor, the court was not convinced.
In the course of time, these unpleasant reflections
recur so often, that an adequate reason for such unsatisfactory results becomes a subject of anxious inquiry. I have mingled to some extent with the Bar of the Supreme Court of Kansas, for more than thirty years, and have heard many expressions of opinion upon this subject. In fact, have delivered some myself. Several years ago, when the court was overwhelmed with unfinished business and means for relief were being discussed, an eminent member of the Bar, stated that in his opinion the chief reason for the crowded condition of the docket was a lack of industry on the part of the judges, and in proof of the statement cited the small number of opinions filed annually. Afterwards, this lawyer became a member of the court, but the record fails to show, that he improved in this respect upon his predecessors. He has since admitted that the work of a justice of the Supreme Court is far greater than he had before supposed.
This illustrates how easy it is to have erroneous opinions upon matters with which we are not familiar. As a general rule lawyers are fair and conservative censors of public officials and especially of courts. They are quick to resent any unmerited imputation against the judiciary. They will not attribute any want of integrity, judicial fairness or legal ability to a court until they feel compelled to do so.
If any criticism is made of cases decided, the favorite expression has been the case was not well considered." This want of due consideration is variously accounted for. Undue haste, on account of insufficient time to fully examine all the cases submitted; insufficient opportunity for each justice to examine the one record provided, and other similar reasons all, however, amounting to the proposition that in the effort to accomplish more work than can be well done, some cases do not receive that careful and searching examination which the importance of the questions involved demand. In these days of strenuous activity and rapid movement, this complaint prevails to some extent, concerning most courts. Every lawyer feels concerned in having his views fairly considered, and the knowledge that they have been examined, materially detracts from the disappointment in having them overruled.
How cases are considered, and decisions reached has always been a matter of interest to the practicing lawyer. When I recently became a member of the Supreme Court, and had been formally initiated into the processes by which cases are there decided, opinions formulated and petitions for re-hearing denied, I was very much impressed with the manner in which the business of the court is transacted, and stated to some of my former co-complainants, that we had been mistakan in some of our criticisms of the court, and explained wherein.
When it became known that I had been designated to prepare a paper for this occasion upon a theme of my own selection, I was requested by members of the Bar, to adopt as the subject of my address : "How Cases are Considered in the Supreme Court," and assuming that the interest manifested in this question by the lawyers with whom I had spoken, was entertained by enough attorneys to make the theme acceptable, I adopted the suggestion.
Some lawyers have regarded this inquiry as one which encroached upon judicial privacy, and from motives of professional propriety have refrained from intruding thereon. The court, however, has not regarded the matter in that light, but has been free to explain the subject to whoever made inquiry. There are certain things, which for obvious reasons should not be made public, and are guarded with the utmost
The Justice to whom a case has been assigned, the conclusion which has been reached, before the final filing of the opinion, are among the matters not divulged. Instances might be cited where cases have been decided unanimously and before the opinion was finally handed down one or more of the Justices, upon
further consideration, and at the last moment dissented. The situation might easily arise, where a case has been decided by a bare majority, that a change of one of the majority would require the preparation of another opinion. It is obvious, therefore, that there can be no decision until the opinion has been finally agreed upon and filed. Aside from these manifestly necessary precautions, the court has no secrets.
To make an intelligible statement of this subject it will be necessary to mention some facts familiar to all members of the Bar.
The cases now being filed in the Supreme Court aggregate 455 annually, being about thirty-eight each month. The court sits for the hearing of causes ten months each year. It is necessary, therefore, for it to finally dispose of an average of 45 cases per month in order to prevent an accumulation of business beyond what is filed during the year. As some cases are continued each month, it is necessary to place more than the average number to be disposed of, on each docket, to insure the final disposition of the necessary number. To accomplish this end there has been an average of sixty cases assigned each month. During the year 1905, forty-five more cases were disposed of than the number filed.
The monthly dockets are made up by the clerk and distributed to the attorneys of record, sixty days in advance of the hearing, to inform them of the assignment, and to enable them to prepare and serve briefs as provided by the rules of court. The last case assigned on the March docket, 1906, was filed July 26, 1905. The number remaining unassigned January 1, 1906, was 389; at that time 120 cases had been assigned on the February and March dockets; this shows that enough cases are now on file, undisposed of, to furnish the ordinary assignments for eight and onehalf months.
Just how soon after a case is filed it is desirable to have it called for hearing, is a question upon which there is room for a difference of opinion. So far as I have been able to learn, most attorneys think six months early enough; on account of business in other courts, they need at least, that much time to satisfactorily prepare and present their cases in the Supreme Court. The number of cases now being continued by stipulation of the parties, bears out this conclusion. More than thirty per cent of the cases for the past two months have been so postponed. These wholesale continuances tend to increase the future work of the court, and it may be necessary to place a limit thereon. Only one record of a case is provided. It is impossible for all of the Justices to read this record. It is necessary, therefore, to provide some way, whereby each Justice may ascertain what the questions are which have to be decided. To meet this necessity, with as little trouble and expense to the litigants as possible, the court adopted a rule, known as rule ten, which is as follows:
“Rule No. 10. Contents. The brief for plaintiff in error or appellant shall be printed, and shall contain: (1) A full statement of the essential facts of the case; (2) a specification of the errors complained of, separately set forth and numbered; (3) the argument and authorities in support of each point relied on, in the same order, with pertinent references to the pages of the record. When the error alleged relates to the admission or rejection of evidence, the brief shall quote the full substance of the evidence admitted or rejected. When the error alleged relates to instructions given or refused by the court or to a ruling on the sufficiency of the petition or other pleading, or of an affidavit or the construction or effect of a contract or any document, order, entry, or paper, the instructions given or refused, the pleading, contract, ducument, order, entry or paper shall be set out in full. The brief of the appellee or defendant in error shall also be printed, and contain: (1) Any points made challenging the sufficiency of the record, or the plain