Mr. VANDERBILT. Anything that makes the practice of law simple and reasonable and rational and flexible, so that it can be adapted to the case before the court, is in the interest, not of the lawyer but really in the interest of his client-at least, that is my belief, and I will stick to it to the end of time.

That is about all I have to say, gentlemen.

The CHAIRMAN. We are very much obliged to you, Mr. Vanderbilt. Mr. HOLTZOFF. I wish to present for just a few words Dean H. W. Arant, dean of Ohio State University Law School and president of the Association of American Law Schools.

The CHAIRMAN. Mr. Arant, we will be very glad to hear you.

STATEMENT OF DEAN H. W. ARANT, OHIO STATE UNIVERSITY LAW SCHOOL; PRESIDENT, ASSOCIATION OF AMERICAN LAW SCHOOLS

Mr. ARANT. Mr. Chairman and gentlemen of the committee, I shall be very brief. I would like to begin with a thought suggested by the last words of Mr. Vanderbilt. He said that the simplest form of procedure is to the advantage of the litigants, and I presume we are all ready to concede that courts exist primarily for the purpose of those who have interests that are in need of adjusting, rather than for the lawyers who have to represent them.

I would like to emphasize the point that procedure is not an end in itself, but it is a means to an end. It is nothing that we should glorify, for that reason. It is a matter that causes the public a lot of expense. If you would go through the advance sheets of the Reporter and see how large a percentage of the cases that are reported there are in courts of last resort on questions of procedure, that have nothing whatever to do with the merits of the case, you would be amazed. Mr. RAMSAY. Is it not true that 60 percent of all the cases going to the Supreme Court, the higher courts, go there on the ground of introduction of testimony or failure to permit testimony to go into court? It has nothing to do with the rules or of practice at all?

Mr. ARANT. I could not say whether the percentage you speak of is correct or not, but I know there are a lot of matters that find their way into the courts of last resort that are not questions of the admissibility or exclusion of evidence, but they are questions of pleading and procedure. Now, I make that statement simply for the point of, emphasizing the fact that procedure is a means to an end, and that it is in the interest of the public, whether they are rich or whether they are poor, that there shall be as simple and expeditious a method of getting issues and quarrels presented to the courts and passed on as can be devised, consistently with the parties having adequate notice of what the quarrel is all about, and a reasonable chance to present their side to the court. I think we all agree on that. We have been working on that for decades and decades and decades. There was a time when the common-law system of pleading was supposed to represent perfection as to the system for doing that kind of thing. Now they have discarded that in England and we have discarded it in most of the states in this country, and we are constantly working at this matter of simplifying procedure, and I want simply to suggest to the committee here that I think the agency in our society that has the best oppor

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tunity to observe in operation the rules of procedure is the lower court. They ought to be the persons who would best be able to see where change is needed.

Sometimes a rule simply is not as perfectly formulated as it might be, but I believe that all of you will agree that sometimes the thing that gets wrong with a rule is that lawyers find ways to misuse it instead of using it for the purpose for which it was designed.

If I can illustrate one point I do not want to make any large indictment, but you well know that in our State we have such a thing as a motion to make more definite and certain our pleadings, and I know that it is not even considered by the lawyers generally to be unethical to file that kind of a motion when there is no question whatever in the lawyer's mind as to what the pleading that he is addressing that motion to means, but he is doing it to gain some time because he has just been too lazy to get ready.

Mr. RAMSAY. Are these rules going to help that situation? Will they change the habits of lawyers?

Mr. ARANT. I do not know whether they will or not, but I merely suggest-I do not know whether these rules are designed to change the habits of lawyers, but is may very well be that they will have that effect. But what I am saying, Mr. Ramsay, is this; that sometimes we have to change a rule, the content, the form, and statements of a rule, because we find that it is capable of that kind of a misuse. That is the point I am trying to make. I do not know whether you can change lawyers so they will not always be trying to use a rule when they get behind and have not done their job, but I think that is one of the reasons why we have to keep our rules of procedure under constant scrutiny and constant study, and I think that the way these rules have been formulated causes them to come to this committee with a great deal of presumption in their favor, just as I think that when a measure that has been considered by this committee goes to the Congress it has a great deal of presumption of soundness and validity in its favor. It would be too much for anybody to claim, and I certainly would not care to assert that these rules as they have come from the committee that formulated them are perfect. I doubt if any of us will ever see the time when anything that comes from the hand of ordinary man proves to be absolutely perfect.

Mr. MASSINGALE. May I ask you a question, just to get your opinion? Do you see any analogy between this method of trying to impose a law upon the American people through the wishes, say, of the American Bar Association and other bar associations, and what the Congress did in reference to the N. R. A. and the triple A, delegating power to somebody to do something that the Supreme Court of the United States said should not be done?

Mr. ARANT. Well, I do not know that I see any particular analogy. I do not know that the matters that were delegated in that case which the Supreme Court said should not have been delegated were matters about which it could be said, as it certainly can here, that the agencies to whom the delegation was made were in a peculiarly strong position to do the best thing that was done. But at any rate, the point I would like to make here is this: That these rules are, in a certain sense, the rules of the Congress of the United States. They must be. They cannot go into existence without your express or implied approval.

Mr. MASSINGALE. I grant you that, but are you not doing a thing that is tantamount to making a part of the substantive law of this country a resolution, the work of the American Bar Association, instead of going to Congress with it to begin with?

Mr. ARANT. Well, I would answer that by saying this: That I suspect that much of the work that comes to Congress in the first place, the bills that are introduced in Congress in the first place, are the work of some group outside of Congress. Of course, I am not in a position to speak with much authority on that, but I suspect that there are a good many bills that are introduced in Congress which do not originate in the brain of any member of Congress. That is just a rough guess.

Mr. MASSINGALE. I agree with you there.

Mr. ARANT. And I think that the fact that this may seem to have originated in the bar association does not prejudice it; in fact, this is the work-as has been said here, these rules are the work of members of the legal profession, the judicial branch, the practice branch and the teaching branch, which certainly have no axes to grind.

Mr. MASSINGALE. I am sure of that, Dean, and I agree with you in your statement that no other body of men in America are so well qualified to write rules that ought to govern procedure in Federal courts and other courts as this American Bar Association, the justices of the Supreme Court and the like, but the point I wanted to know is whether or not as you see any resemblance in the application on the part of Congress in this kind of legislation?

Mr. ARANT. I would say this, sir, that most constitutions of the various States contain divisions of power very similar, if not identical, to that which is contained in the Constitution of the United States, and I am not aware that any very serious question has ever been raised at least, I am not aware that it has ever been held that it was improper for the legislature to confer upon the courts the power to make rules of procedure.

Mr. RAMSAY. How could they? Because they pass on their own work. It is no worse than the delegation of power to a board. There the court can supervise them, but when you delegate to the court itself, there is no relief whatever, outside of your legislative work.

Mr. ARANT. Well, of course, I suppose that in any State where the courts derive their powers to make rules from a legislative act, the legislative branch of the Government could take the power away at any time, as has been suggested here.

The CHAIRMAN. I am not familiar with legislation that delegates responsibility of making these rules to the bar association. The only thing I knew anything about is this act by which we asked the Supreme Court to formulate and submit some rules, which, if the Congress does not object after full opportunity is given, go into effect. They do that not by virtue of the action of the Court but of the Congress. Mr. RAMSAY. The testimony here, as I gather it, is that the bar association made these rules and the court had nothing to do with them.

Mr. ARANT. Well, Mr. Ramsay, if I may say so with all respect, I have heard nothing whatever in this presence in the 2 days that have gone on so far, that indicated that these rules were made by the American Bar Association. It is true that the American Bar Association has been very much interested in this matter, and it

may be true that the American Bar Association's interest was the thing that caused Congress to pass the legislation by virtue of which we are now considering these rules, but after all it is not correct to say, I think, that these rules were made by the American Bar Association. I think it would be a fine feather in the cap of the American Bar Association if it could say that these rules were made by it, but I do not think it is correct to say that they were.

May I just say this word in closing, that I think the improvement of legal procedure, like the improvement of anything else, must be accomplished as a result of intelligent experimentation. We have not learned how to make better automobiles in any other way than that. We have not learned how to raise better crops in any other way than that, and we will never learn how to have better procedure except by trying out proposals that appear to be promising of better results. You cannot have absolute assurance in advance. do not have it in any other area of human life, and I do not expect you can ever have it in this area, and if we waited until we could be absolutely positive that a proposed change would be a vast improvement upon what we now have, we never would have any change.

You

Mr. RAMSAY. You could not get any bill through here except this one, with that theory.

Mr. ARANT. You mean you have absolute assurance

Mr. RAMSAY (interposing). That you could go to work and make a change that is entirely different from what you have, something. which is entirely new, so far as the States are concerned. We have been practicing for more than 70 years under our present procedure, and here comes something that wipes it out entirely.

Mr. ARANT. Do you mean, Mr. Ramsay, that that is the only thing you have ever been asked to change?

Mr. RAMSAY. No; I voted for all the changes.

Mr. ARANT. And you knew positively in advance that the change was going to result in an improvement?

Mr. RAMSAY. No; as I say, I voted for all of those changes.
Mr. ARANT. Then you and I are in absolute agreement.

Mr. CELLER. Just a moment, Dean. Rule 26, page 32, under the heading "Depositions of Discovery."

Mr. HOLTZOFF. If I might interpose there, we will have someone later who will explain the rules in detail.

Mr. CELLER. This provides for an innovation, namely, examination before trial in Federal court. We have no such provision in our present rules, namely, for examination before trial. Do you believe that is a salutary provision?

Mr. ARANT. I must confess, sir, that I have had no part in the framing of these rules. I am not a practicing lawyer and I think it would be very much better if you would excuse me from answering that question and ask it of Major Tolman or some of the gentlemen who are engaged in the active practice of law.

L The CHAIRMAN. We are very much obliged to you, Mr. Arant. Mr. HOLTZOFF. We have just one more witness, Mr. Chairman. Mr. MCLAUGHLIN. Just a second before you go on. I would like to ask Mr. Padway a question.

This morning you stated in your testimony that in your State of Wisconsin, in which you practice, there is in existence a system under which the Supreme Court promulgates rules. I think it might be

helpful to the committee if you would state whether that system works satisfactorily. Will you please give us your views as to the advisability of the system, as reflected by the experience in Wisconsin.

Mr. PADWAY. I must frankly state that I was in opposition to the adoption of the rule when it was before the legislature. It has worked there for about 3 years. Our apprehensions and our fears were unfounded. We have had no trouble with the rule-making power in Wisconsin. The court publishes it broadcast, and even lay people have appeared before the court and discussed the rules, and many of them have been rejected by the Supreme Court as the result of the discussion such as we have had here, and we have had-well, as I have indicated, it has worked out all right.

Mr. CHANDLER. Judge Padway, so that we may understand the suggestions that were made this morning, it is your judgment that a simple amendment to section 1 in the act of June 19, 1934, to the effect that such rules as the Supreme Court of the United States may promulgate for the District Courts of the United States in the future, or amendments to the present rules, shall be submitted to Congress for hearings, just as these rules have been-you think that would meet the situation that you describe?

Mr. PADWAY. That would be a splendid thing, and I think you should do that. Chief Justice Hughes submits them to the Attorney General, the Attorney General submits them to the Judiciary Committee at the opening of Congress. Then they become effective after the close of the session.

Mr. MCLAUGHLIN. In other words, follow the practice we are following here in this hearing?

Mr. PADWAY. That is right. It can be applied to one as well as to the other.

Mr. MASSINGALE. Do you think it is sufficient to have that rule, that amendment, submitted after notice to the Attorney General, just to the Judiciary Committee?

Mr. CHANDLER. Submitted to the Congress, not submitted to this committee.

Mr. PADWAY. I think it should be submitted by the Attorney General to Congress.

Mr. MASSINGALE. We are not quite Congress.

The CHAIRMAN. But we are pretty near it. [Laughter.]

Mr. PADWAY. You have to determine what status in the sun you occupy.

Mr. HOLTZOFF. We have a representative of the District of Columbia Bar Association, Mr. Robert F. Cogswell, whom I want to introduce for just a moment, Mr. Chairman.

The CHAIRMAN. We will be glad to hear you, Mr. Cogswell.

STATEMENT OF ROBERT F. COGSWELL, ESQ., REPRESENTING THE DISTRICT OF COLUMBIA BAR ASSOCIATION

Mr. COGSWELL. Mr. Chairman and members of the committee, so much has been said that it would be repetition on my part to say anything more than this: In 1936 the president of the Bar Association of the District of Columbia appointed a committee of six members to work with the advisory committee in connection with these rules. The rules as they are now proposed are satisfactory to the Bar Associ