RULES OF CIVIL PROCEDURE FOR THE DISTRICT TUESDAY, MARCH 1, 1938 HOUSE OF REPRESENTATIVES, The committee met in the Committee room, House Office building, We would appreciate it if we may have a list of the gentlemen who Mr. Attorney General, may we have such a list? STATEMENT OF HON. HOMER CUMMINGS, ATTORNEY GENERAL Mr. CUMMINGS. Mr. Chairman, from the Department of Justice, I understand that there are in attendance the following gentlemen In addition, there are also here former Attorney General William The CHAIRMAN. Are there any other persons present who have come Mr. WEAVER. Mr. Chairman, I wish to call attention to the presence 1 The CHAIRMAN. You may proceed with your statement, Mr. Attorney General. Mr. CUMMINGS. I think first, Mr. Chairman and members of the committee, that a few words about the origin of the act which produced the new rules might be in order. The Congress, as you all know, soon after the adoption of the Constitution, empowered the Supreme Court to adopt uniform rules of procedure for the Federal courts in equity and admiralty. As a result of that action, the Federal equity and admiralty practice became uniform and attained a reasonable degree of simplicity. On the other hand, for many years it was necessary for the Federal courts, in actions at law, to conform as nearly as possible to the State practice in the jurisdiction where the court was sitting. That is known, I think, as the Conformity Act, and it goes back to 1872. The result of this system has, of course, been that we have practically 48 different procedures, depending upon the locality in which a court might happen to be sitting. Some of the State courts still adhere to common-law pleading, in all of its pristine vigor, and with other characteristics which I shall not pause to describe. Some States preserve common-law pleading, with individual modifications, while other States have short practice acts and codes and other methods, which are intended to simplify the procedure. In the first place, it is rather a strange anomaly that the Federal courts have to follow this variety of procedure. Of course it all grew out of the Conformity Act. Another thing about it that has been very distressing to those who are interested, as I assume all of us are, in the improvement of our practice, has been the fact that by reason of this tying up to a variety of procedures, the Federal courts were helpless and powerless to improve or simplify the Federal practice and procedure, so as to eliminate technicalities and refinements of procedure that tend to create difficulty and delay. In other words, we had tied the Federal procedure so completely to the stake of inadequacy that it is unable, because of that situation, to improve itself. Now, I am not unmindful, of course, of the point of view of some of those who are reluctant to change old methods or those who have been trained in common-law pleading and have attained some special skill in it. Perhaps they may suffer some heart pains in parting with that realm of technicality. But the courts do not exist for the lawyers; they do not exist for the judges. They exist for litigants, and litigants are entitled to the best possible procedure that human ingenuity can devise. The courts are established to administer justice, and you cannot have justice if justice is constantly being thwarted and turned aside or delayed by a labyrinth of technical entanglements. Manifestly, the whole profession-and when I speak of the whole profession I mean practically the whole profession are concerned about this situation, and are earnestly desirous of ridding the courts and the profession itself of the charges of being the home of delay and the home of technicality. As early as 1912, I think it was, the American Bar Association inaugurated a campaign to secure the enactment of a law which would permit the Supreme Court to promulgate uniform rules of practice for the Federal courts, in actions at law. Many eminent members of the bar advocated that reform year in and year out, and the American Bar Association repeatedly renewed its attempts to secure the enactment of that form of measure. Difficulties arose and the bill never got through. It reached different stages, and at one time seemed to be on the verge of passage. The situation was rather deplorable in that respect. The American Bar Association may have lost hope, as evidenced by their action in 1933, but apparently they have not lost heart, and it seemed to me that the time was ripe to revive that struggle. So, on March 14, 1934, I attempted to state what I thought was a fair résumé of this particular predicament in which the profession found itself. I took occasion to say this-and with your permission I will read a portion of the statement, because it expresses my views as clearly now as it did then. This is what I said: In our country, for more than a century, the United States Supreme Court has been permitted to regulate practice and procedure in equity cases. The results have been highly satisfactory. If this power could be extended to actions at law the Court would be in a position to unite the equity and law practice so as to secure one form of civil action and procedure for both. This would constitute a legal reform of the first magnitude. For more than 20 years the American Bar Association has advocated the granting of such power to the United States Supreme Court. A bill of this character was first introduced in 1912, and, although it has never reached a vote, it has been brought forward in almost every succeeding Congress. The proposal was endorsed by Attorneys General McReynolds, Gregory, Palmer, Stone, and Sargent. Mr. Elihu Root and the late Judge Alton E. Parker have personally appeared before a committee of Congress in favor of the measure. In 1921 a questionnaire submitted to Federal judges disclosed that, of those replying, more than 80 percent of the circuit judges and 75 percent of the district judges favored the proposal. Legal, commercial, and business organizations have, with striking unanimity, approved this reform. It has been endorsed by 46 State bar associations, the conference of Commissioners of Uniform State Laws, the executive committee of the Association of Law Schools, the United States Chamber of Commerce, the National Association of Credit Men, the Commercial Law League, the National Civic Federation, and the Southern Commercial Congress. It has been approved by present or former deans of many important law schools including Harvard, Yale, Cornell, and Virginia. In 1910 in a message to Congress, President Taft sponsored the proposal. Two years later it was unofficially approved by President Wilson. In a message to Congress, President Coolidge made similar recommendations. I am authorized to say here tonight that this proposed reform also carries the endorsement of President Franklin D. Roosevelt. Persuaded that this is the course of right and reason, I have recently communicated with the chairmen of the appropriate Senate and House Committees suggesting the reintroduction of this bill. I earnestly urge its passage. Our one great enemy is inertia. But surely the hour has struck. Let us not confess that we are so disorganized, so indifferent, so lazy, so ineffectual, and so impotent that we cannot marshal our forces in behalf of a measure of reform which the leaders of the bar have so long and so overwhelmingly approved. The Congress did take favorable action, and the act of June 19, 1934, was the result. Under that act, the Supreme Court proceeded to appoint an advisory committee composed of outstanding members of the bar and teachers of law. Every section of the country was represented. So far as the Department of Justice is concerned, we also had a committee that cooperated intimately with the advisory committee appointed by the Supreme Court. These two groups, consisting of scholarly, interested and highly competent people worked together with the utmost harmony. Their work was not thrown together in a moment. They labored assiduously for almost three, years. Preliminary drafts of rules were circulated among State and local bar associations, and individual judges and individual lawyers were invited to submit their views. Numerous ideas were submitted and they were carefully studied. Many suggestions, I might say, proved valuable and eventually found their way into the rules, as finally adopted. It was a searching and democratic process. It was as fine an example as I have ever known of the bar and the judiciary acting enthusiastically and completely in harmony. In fact, the American Bar Association Journal in its issue for February 1938 makes the following observation: No such instance of the cooperation of a whole profession in an undertaking of this kind is afforded by the history of this or any other country. Those are pretty strong words, but they are entirely justified by the facts. Last fall the advisory committee reported a final draft of the rules to the Supreme Court, and after studying the product of the committee the court adopted it as constituting the rules of civil procedure for the district courts of the United States. On December 20, 1937, the Chief Justice transmitted these rules to me. This was done because that was the required procedure set forth in the statute which brought the whole matter into being. He wrote me a letter on the subject which you have no doubt seen, which is reproduced on the first page of the copy of the proposed new rules. and In accordance with my duty, likewise imposed by the statute, I submitted the rules to the Senate and House of Representatives on the opening date of the present session of Congress. These rules provide that they shall take effect on the date 3 months subsequent to the adjournment of the second regular session of the Seventy-fifth Congress, but if that day is prior to September 1, 1938, then they will take effect on September 1, 1938. That provision is found in rule 86. I may say this, that in my judgment the rules themselves prescribe a very simple form of pleading, practice, and procedure, with a minimum of technical requirements. The whole process of formulating these rules has been to reduce the matter to simple and easily understood terms, and to provide for the maintenance of the procedure in such fashion that even a mind of moderate capacity would easily understand what the required course might be. These rules do away with obsolete intricacies and refinements of common-law pleading through methods even more simple and more flexible than code pleading in many States. In other words, we have had the benefit of the experience of various States, and the best that could be found anywhere has been drawn into these rules. I think that any lawyer of reasonable competence could understand these rules by reading them through two or three times. I am not disposed to pause for a discussion of the details of these rules, or of the pending bill, H. R. 8892. There are present here today these eminent gentlemen, many of whom are more familiar than I am with exactly what went forward in the formulation of the rules and the reasons therefor. My main theme is to point out to this committee that a great work has been done. It has been done under the authority of the Congress. It has been done under the direction of the United States Supreme Court, and it has been done with the cooperation and completely harmonious action of the bench and bar, and the Department of Justice. It, therefore, comes before this committee with every presumption in its favor. To undo this work in whole or in part would be a most unfortunate reversion to outworn methods. Mr. CELLER. You say in whole or in part? Mr. CUMMINGS. Yes; in whole or in part. Mr. CELLER. You would make no change at all? Mr. CUMMINGS. If I were dong it, I would take the rules as the Supreme Court handed them to me. I would give the bench and the bar an opportunity to use the rules in actual practice. I would have enough faith in the bar and in the Supreme Court to believe that they would propose an alteration of these rules if the need existed. The Supreme Court under the act has the continuing right to make rules. The idea was to give the judiciary, acting through the Supreme Court, the power to formulate the procedure. This is the great, basic, purpose. It would be amazing if it were perfect. I do not suppose that any document ever sprung from the brain of man completely satisfactory in all its details. But I do undertake to say that every aspect of every rule has been under the scrutiny of highly skilled people, and that, therefore, the course of wisdom is to let these rules go into effect as they are, without tinkering with them, upon the theory that the courts should make the rules, and leave it for the Supreme Court to find a remedy for any defects that may thereafter develop in actual practice. I would be very glad indeed, if Mr. Morris, of the American Bar Association, with your permission, Mr. Chairman, may be allowed to make a statement. Mr. RAMSAY. Do you know why Mr. Justice Brandeis refused to sign the order of the court? Mr. CUMMINGS. I do not know why, no. I think I might guess why, but I have not sufficient knowledge on the subject to warrant me in expressing an opinion. Mr. RAMSAY. Let me ask you another question. You have stated that this is to avoid delays. Is it not a fact that the delays in courts are not because of the effect of any pleading, but because of the judge himself? Mr. CUMMINGS. Oh, no; that is hardly fair to the judiciary. I think that it may be due, in part, to individual judges, but I think also it is due to an archaic system. Mr. RAMSAY. I know it is not the fault of the system of common-law pleading in my State when I say to you I have seen judges in my circuit who would take a year on a case in which there was common-law |