APPENDIX

JUDICIAL ADMINISTRATION AND

LEGAL REFORM

This is a matter that perhaps addresses itself primarily to the members of the bar, especially to the extent it will be here discussed.

Litigation is costing too much in West Virginia, and other states, for that matter. The cost of the average law suit now, is about three times what it was twenty-five or thirty years ago. So costly in fact, that people of ordinary means, are not only deferred thereby from contesting their right in a court win or lose, but in many cases are financially unable to do so, in cases where the opposite parties are financially able to make a contest. If all litigants were of the latter class, it might be different, since they always pay the fiddler pretty liberally. We hate to admit it, but we lawyers are largely to blame for the large and excessive costs of litigation. One reason for it is the advent of the typewriter and the stenographer. The Maud Mullers have all taken up stenography. Twenty-five and thirty years ago, or forty, at most, most lawyers "took their pen in hand" and prepared their pleadings themselves, some times with a goose-quill; now they lean back in an easy chair and dectate them to a stenographer who jots them down in Greek and translates them into the vernacular tongue. When a lawyer had to prepare his pleading with pen and ink in long hand, it was some job, and he was careful of how he spread it on, and made it as terse and concise as possible;-a great virtue, but a lost art. Now its all up to the "stenographerist." I can't think of anything which a lawyer does now without a stenographer, unless it might be that he says his prayers himself without one.

A pleading that used to consume but a few pages, now consumes twice and thrice as many words as needful. It is the

same with depositions, and a stenographer is the only thing on earth that is not curbed by any speed limit, the lawyer the only thing that spins pleadings and depositions unending and interminable. There is all the difference between the methods of preparing pleadings and taking depositions, now and forty years ago, that there is between the use of a single barrel muzzle loading rifle as a weapon of offense and a double barreled breach-loading gun, and we lawyers always use the latter, now, in pleading and asking questions.

We do not take a dead level rest as we used to. We are all wing-shots with the double barrel. Even the stenographers are thoroughly organized at fifty cents a page. We used to get depositions at seventy-five cents an hour, now the conscience scarcely limits the cost. With a litigant of moderate or small means, the getting of a batch of depositions now, is about as expensive as a funeral; but the lawyers are most to blame for that. We are too long winded.

The stenographer's fee is sometimes the Lions share of the costs in a case. A few days work by one of them costs as much as the monthly wages of the average man or woman. The quantity of depositions and pleadings, on the average, is double what it ought to be, when the cause is ready for hearing. It is quadruple what it ought to be when it comes to copying the record in case of an appeal, sextuple what it ought to be in printing the record, and takes up twice the time of circuit and appellate judges as there should be any need for.

There should always be in a pleading or a deposition that, which for lack of a better name may be called their integrity, from both a legal and ethical standpoint. Just now I have before me the printed record in a chancery cause of 437 pages, clerk's copy of which costs $122.26. Printers fee $346.50, in which the demurrer to the bill, a very plain, ordinary document, consumes seven pages of the printed record, all purposes of which could have been subserved with one or two pages. The depositions on both sides consumes 357 pages, costing over $200.00, more than five times what they would have cost but for the useless duplication in volume. Pages and pages taken up by debate between counsel, put in the record. Other pages with captious exceptions and frivolous objections, put forth, perhaps, by counsel, by way

of assurance of clients that counsel are on the job, all the way around Robbin Hood's Barn.

Here is an excerpt from an examination in chief, the object of which was to elicit from the witness what the defendant standing by a certain stake, said about the stake being properly located for that corner.

Q. I want to ask you Mr. Green, if you are acquainted with the defendant John Smith?

Q. How long have you been acquainted with Mr. Smith, Mr. Green?

Q. Are you acquainted with the land in controversy in this suit, Mr. Green?

Q. I want to ask you, Mr. Green, whether you were over at the North East Corner of the tract with Mr. Smith, designated by a stake near a Dog-wood on the creek bank?

Q. State, Mr. Green, whether you had a conversation with the defendant Smith, at that corner?

Q. Now Mr. Green, will you please state just what that conversation was, as far as you remember?-Six questions of 107 words.

..

A shorter cut to the same purpose.

Q. Are you acquainted with the defendant, Smith, Mr. Green?

Q. For how long?

Q. Are you acquainted with the land in controversy in this suit?

Q. Were you ever at the North East corner of it designated by a stake near a Dog-wood on the Creek bank?

Q. Did you have a conversation there with the defendant about that corner?

Q. What did he say? Six questions, 55 words.

Here are six questions of 107 words which never indicated to the witness what particular information counsel desired to elicit from him, that could have any bearing on the controversy about the proper location of the stake.

Here is another except from the same record: "Q. Now Mr. Jones the W. B. Realms lots, Nos. 16 and 17, laid down on the map appears to have been conveyed to Realms by Helen Smith, and A. P. Smith her husband, and to the Smiths, by

Nathan Arbogast, by deed dated 7th day of December, 1914, a copy of which is filed in this case with the plaintiff's bill, marked exhibit B. which I now hand you. State whether or not you wrote that deed? There is an interrogatory of 79 words; half of them wholly immaterial, because the only information sought by the question was whether the witness had drafted a certain deed, which could have been elicited thus:

Q. Mr. Jones here is a deed from Nathan Arbogast to Helen and A. P. Smith, dated, December 7th, 1914, for lots 16 and 17, on the map I hand you with said deed, state whether you wrote that deed?-Just half the number of words. Waste of time and needless expense is not the only disadvantage of such riots of words. It beclouds the merits, greatly delays the progress of a cause, confuses a witness, and is a travesty, generally, which should not be tolerated. I recall a came in which the judge of the court required counsel to pay part of the cost incurred in taking depositions in the manner above indicated, and if there is any lack of authority for a judge thus to act, it should be given him by law.

The foregoing will answer for that purpose of illustrations of abuse referred to. Fifty records in hand show the same general condition, both in the pleadings and testimony, and the result of it all to lawyers, clients, judges and litigants is perfectly appalling, looking at the extent of it in litigation in the various courts of the State. It constitutes a perversion of justice. It is "sale, denial, and delay," a breach of both moral and legal ethics.

With some people there is a general notion that witnesses commit perjury more often than generally supposed. I am not prepared to say about that, but if they do, they are possibly not always to blame. They do not always have a fair chance to tell the truth. It is not always that the truth suits best. Witnesses, perhaps, are often partisans. A witness like that will swear a horse is 17 feet high and stick to it, if you get him started right with a lot of taffy or flattery. The case of Hill vs. Webb in a record before me contains a good example. Counsel for plaintiff was seeking to prove by the witness Tenney, the value of a certain frame dwelling.

Q. What is your name?

A. William Tenney.

Q. What is your occupation?

A. I am a farmer, and live on the Bill Ward farm.

Q. I believe you are a member of the Board of Education, Mr. Tenney.

A. Yes, sir.

Q. Your daughter is one of the teachers in our High School I believe?

A. Yes, sir.

Q. Your son William, is sheriff I believe?

A. Yes, sir.

Q. How long have you been a member of the Board of Education, Mr. Tenney?

A. For three terms.

Q. Well now, Mr. Tenney, you live on the Bill Ward farm? A. Yes, sir.

Q. Are you the same Mr. Tenney who took the recent home garden prize?

A. Yes, sir, guess I am.

Q. Well now, Mr. Tenney some evidence has been introduced here as to the value of the two story frame dwelling in which you live on the Bill Ward farm, as to which the witnesses have varied, and the highest estimate of its value, has been placed at $1750.00. In your opinion, Mr. Tenney, what is that house worth, as it stands?

A. Well, I should say it is worth, and well worth, at least $3000.00.

That's the way. If you want some valuable information from a witness, give him a chance to give it. If you wish to know the real value of a frame dwelling, get a man who is a member of the Board of Education, whose daughter teaches in the High School, whose son is sheriff, and who himself has taken the Home garden prize. If such a man does not know, who would?

A remarkable circumstance, however, in the examination of a witness for the other side as to the value of the same house appears in the same record. It was a like appeal to the vanity of a witness, and after that the run of the question was reversed, Thus:

Q. Mr. Amous you have testified that you were acquainted