Mr. MCLAUGHLIN. Now, so long as the Act of June 19, 1934, exists, do you believe that Congress has any power to prescribe any rules of procedure?

Mr. MITCHELL. I do. I think without regard to the act, as soon as these rules go into effect, and Congress the next day passes a statute subsequent to the date of the taking effect of the rules, that is inconsistent with the rules, it would immediately supersede them. I cannot imagine that Congress by statute ties its own hands. Mr. MCLAUGHLIN. Is there not some ambiguity there?

Mr. MITCHELL. I think the word "thereafter" means that after the rules take effect all existing laws in conflict therewith shall be of no force or effect.

Mr. MCLAUGHLIN. Then you construe the law as though it read— And thereafter all laws in existence at the time the rules are promulgated which are in conflict with said rules shall be of no further force and effect.

Mr. MITCHELL. Surely, and if Congress passes a new law in conflict with the rules the law supersedes the rule.

Mr. MCLAUGHLIN. Although the Supreme Court has the right to prescribe the rules you believe that the rules may be amended by Congress?

Mr. MITCHELL. No doubt of it. That is why I say after 2%1⁄2 years of work on this and the study given to it, you at least ought to try these rules and see whether they do work and accomplish their purpose. I have no doubt that if this committee spent 21⁄2 years as our committee did, in working on this subject, and spent hours, weeks, and months of labor on it, that you would have done a better job than we, but I am not ready to believe that it is possible offhand with the limited time you have to deal with this subject, as busy as you are, to be so certain that these rules are wrong that you ought not to give them a trial. I think they should be tried and the whole system ought to be tried. The States of the Union are falling in line and one after the other they are passing laws to allow their courts to make procedural rules. Some of them have waited for these Federal rules to be issued in order to conform the State rules to them and thus produce uniformity in procedure in State and Federal practice, which Mr. Ramsay is interested in.

(Thereupon, at 12:15 p. m., the committee adjourned to meet again at 10:30 a. m., Wednesday, March 2, 1938.)

RULES OF CIVIL PROCEDURE FOR THE DISTRICT

COURTS OF THE UNITED STATES

WEDNESDAY, MARCH 2, 1938

HOUSE OF REPRESENTATIVES,
COMMITTEE OF THE JUDICIARY,

Washington, D. C.

The committee met at 10:30 a. m., for further consideration of H. R. 8892, Hon. Hatton W. Sumners (chairman) presiding.

The CHAIRMAN. Gentlemen, we will proceed with the hearing The Attorney General is not here this morning.

You are representing the Attorney General, are you not?

Mr. ALEXANDER HOLTZOFF. Yes, sir.

The CHAIRMAN. Will you proceed to introduce the witnesses? I presume you have some schedule that has been arranged.

Mr. HOLTZOFF. Mr. Chairman, and gentlemen of the Committee, I would like to introduce Mr. George M. Morris, Chairman of the House of Delegates of the American Bar Association..

STATEMENT OF HON. GEORGE M. MORRIS, CHAIRMAN OF THE HOUSE OF DELEGATES OF THE AMERICAN BAR ASSOCIATION, WASHINGTON, D. C.

Mr. MORRIS. Mr. Chairman, and gentlemen of the committee, the American Bar Association is represented at this hearing because the cardinal objective of the association is to promote the administration of justice. That objective was in our constitution when first adopted in 1878.

Now, the members of the association believe that these rules that are before you contribute directly to the achievement of that objective. It is a stimulating satisfaction to us to believe that the articulated wishes and hopes of at least two generations of the American Bar are nearing fulfillment.

This satisfaction from our point of view has a particular warrant because of the service to the community that this sort of a project indicates, namely, to those persons who have become litigants in the Federal courts.

If one stops to think about it a moment, although this project is promoted by the bar, it is, in fact, not in the interest of the bar. It is against the selfish interest of the bar if its members can be separated from the rest of the community. The minimization of technicalities and confusion in the courts works directly against the employment of lawyers. Nevertheless, the members of the profession who feel that the first duty of the profession is to serve the community have continued to promote this project for simplification and for the elimination of the technicalities in pleadings.

So far as the bar itself is concerned, the march of events in recent years has brought reinforcement to this project. The development of interstate business, interstate communications, and interstate transportation are the things which have helped to swell the business in the Federal courts. The rapid increase in the impingement of the Federal Government upon the individual citizen, even though he be a person of relatively small consequence in his community, of the horde of Federal agencies has resulted in conflicts which have stimulated business in the Federal courts. The lawyer who, two generations ago, confined his activities largely to walking from his office across the square to the courthouse, and maybe a couple of times a year visiting the State capital, is now seen almost as frequently in Washington as he is in his State capital. It does not make any difference whether you call youself a country lawyer or whether you call yourself a "counsellor-at-law," you follow the cases of your clients, and the cases of your clients, of necessity, are going into the Federal courts. What better evidence could any of us wish of that trend than the bills that are before you for a substantial increase in the number of our Federal judges? The business of the country and the appearances of our clients are moving into the Federal courts, and they are moving into them not only from the cities, but they are moving in from the smaller districts throughout the country.

We all know that these rules are the key-log in the jam which is delaying improvement in judicial procedures throughout the States, as well as in the Federal Government. If we can get these objectives moving the whole advance will proceed with acceleration in the improvement of that procedure.

The American Bar Association is not here merely to express a pious approval of a beautiful objective. We have had our teeth in these rules, as the Attorney General told you yesterday, for 26 years. This association has been formally advocating this procedure during all that time. He named some of the great names of our bar and in public life who have been active in this project. But, it is not only an approval in principle. The fact is that, as Mr. Attorney General Mitchell told us yesterday, in 1936, we had one tentative draft of these rules. I think some forty thousand copies of those were sent out, and suggestions, hundreds of them, thousands of them possibly, from the bar of this country, were received by this Advisory Committee of the Supreme Court as to suggested changes in this draft. Finally, in Boston in 1936 on one great day under the auspices of the bar association committee on jurisprudence and law reform, and the conference of judicial councils a meeting was held that lasted all day. At the invitation of the program managers, statements respecting the then draft of the proposed rules were delivered by three members of the Supreme Court Advisory Committee. I counted them up last night and over a score of men spoke from the floor back and forth making suggestions and discussing that draft.

Mr. RAMSAY. Mr. Morris, you say that this is to correct technicalities. Just what technicalities do you have in mind which this is going to relieve the practice from?

Mr. MORRIS. This will relieve the practice, as I understand the situation, Mr. Ramsay, from restrictions of two things, first the restrictions, some of them out worn, fortunately not all of them, of the old common law system of pleading.

Mr. RAMSAY. Now, what is wrong with the pleadings?

Mr. MORRIS. Would you like to have me answer that question? Mr. MCLAUGHLIN. Do you propose, Mr. Morris, to go through these rules in your discussion?

Mr. MORRIS. No, not at all.

Mr. MCLAUGHLIN. You do not propose to do that?

Mr. MORRIS. No, I am no expert on these rules, and I am here only submitting the views of the American Bar Association as a whole.

Mr. MCLAUGHLIN. What I am asking you, Mr. Morris, is whether you, in your discussion, are going to touch upon the objections so that it will be done in an orderly way? I know the members of the committee are very anxious to know about these rules and known what changes there are in them.

Mr. RAMSAY. If there is any benefit to be gained, Mr. Morris, I want to know where that benefit is. I want to know what technicalities you refer to. You say in common law pleading, and what you are going to destroy, and the rules should be changed. I want to know where they are.

Mr. MORRIS. I think that is a very proper inquiry.

Mr. RAMSAY. I have been trying to find out all my life.

Mr. MORRIS. I think that is a very proper inquiry. While I am here speaking for the American Bar Association on those rules, I do not believe I am qualified to answer that as intelligently as a man of your intelligence would wish it answered. I suggest the procedure be more along the lines Mr. McLaughlin has indicated and that you will have somebody here who is actually familiar with the construction of these rules to answer your question.

Mr. RAMSAY. You made that charge, and I just wanted to ask you in what respect you would change them.

Mr. MORRIS. Yes, and I could support it, but I think we have here available better speakers on that point than I am.

My personal suggestion is that when the time comes you have Major Tolman, who is secretary of this committee, answer your questions in detail. I should be very glad to answer your question, but I believe there are others here who can do it better, and if you will let me off I will go on along the line I was following.

Mr. RAMSAY. Go right ahead.

Mr. MORRIS. I spoke of these discussions in Boston. Again in Kansas City, last summer, in September 1937, we had another draft, a draft which was proposed as a result of the discussions in Boston, and as the result of the thousands of suggestions that have been received by the committee. Again under the auspices of our section on judicial administration, an open forum was held on the second draft, and these things were discussed at length.

There are two formal resolutions of the bar association with respect to this project, which I would like to read in this connection. In 1912 this was the resolution that was passed. I think it is significant not only because it is an endorsement of this project but because of its effects on the situation affecting court procedure as a whole. That resolution contains, among other things, these two paragraphs:

First: That a complete, uniform system of law pleading shall prevail in the Federal and State courts;

Second: That a system for use in the Federal courts and as a model, with all necessary rules of practice or provisions therefor, should be prepared and put into effect by the Supreme Court of the United States.

60098-38-ser. 17- -3

You will see there that one of the things that generated this movement is the ultimate effect upon judicial administration throughout the country as well as in the Federal courts. We are now about to reach the initial step, but it is only the initial step, and it is hoped that from here we will be able to go forward.

In 1937 at the annual meeting of the association this resolution was passed, and this is our latest action:

Resolved that the association approves the Rules for Civil Procedure of the District Courts of the United States, as reported by the Advisory Committee on Rules for Civil Procedure as of April 30, 1937, subject to such modifications as the advisory committee may deem it advisable to adopt after consideration particularly of suggestions submitted by the bar in response to the invitation of the advisory committee: And resolved further, That the association recommends that said advisory committee be continued, that all appeals from district courts be as provided in rule 63 of said rules, and that as a condition precedent to the promulgation of rules by a district court the concurrence of a majority of the circuit judges of the circuit in which the district court is located should be required.

If all lawyers agreed with this set of rules, or any set of rules, the legal profession would be dead. There is one thing that is true of the bar, and that is we do not all agree with each other; that is the glory of the bar. On the other hand, you have presented to you here the study of a qualified group of men who have devoted 2% years first to listening, second to discussing, and finally to stating as far as they can state, their conclusions.

Of course, these recommendations are going to be improved upon, and, of course, they are going to be altered from time to time, but if they are going to get anywhere we must make a start. I dare say if we took these rules and presented them to every man in this room who is a member of the bar he would find some technical exception to some rule. Well, that is the way it should be, but, on the other hand, if we are going to make a start, here is presented an intelligent and devoted effort to start out, and that, to my mind, is the most impressive aspect of the present situation.

If I may continue for just a moment more, because this is also a hearing upon H. R. 8892, I would like to say something with respect to the bar association's attitude on that bill.

Unfortunately, this bill has not yet had the attention of the association's agencies, but some things may be said with respect to the association's attitude on it. The prior actions of the association indicate that so far as the bill would return us to the status we occupied prior to June 1934, namely, with that old conformity procedure, there is no question that the association is generally opposed to the return to that status. As we see it, it is in exact opposition to the legislation which now brings your committee here.

With respect to the provision in Mr. Ramsay's bill restricting the power of Federal judges to comment upon the evidence and demeanor of witnesses, and so forth, while that specific project as now worded has not been before the association, opposition was recorded in annual meetings of the association of 1924, 1925, 1926, 1927, 1928, 1929, and 1930 to the so-called Caraway bill which for many years was pending in the Senate, and which, in principle, advocated the same thing which H. R. 8892 now advocates.

In view of this past record of the association with respect to this principle in the pending bill, I think I am safe in saying that the asso