Fifty years in Wall Street
enthusiasm about the wrongs of his client, that he appears to be in dead
earnest. He infuses the same feeling into the jury, who are beguiled
into solemnity by the force of forensic oratory, and fail to appreciate
the farcical side of the case, but are totally swayed by sentiment and
prejudice, to the utter exclusion of the evidence.
There are many objections, also, to trial or partial trial, by referee,
although it is in many instances an improvement on the jury system. It
is, however, amenable to numerous and flagrant abuses.
As an instance of this, I shall briefly relate a case which some time
ago came within the sphere of my own observation.
A gentleman of my acquaintance had a claim for a very large amount
against a financial man in good circumstances, and it was sent to a
referee, who, after a long, tedious and exhaustive investigation of all
the facts, gave a decision in favor of the plaintiff for several hundred
thousand dollars.
Soon after the decision, the defendant saw the plaintiff, and made him
an offer of thirty thousand dollars to settle the matter, at the same
time stating that if he did not accept the offer, he would either appeal
the case or hunt up fresh evidence for a new trial.
This offer of settlement, which was but a small part of the amount
awarded by the judgment, was naturally declined by the plaintiff, and
application was made to the court under the pretense of newly discovered
evidence, for a new trial, which was granted. Thereupon, after another
tedious trial, the old beaten track having been gone carefully over
again, without omitting any of the aforesaid “whereases, neverthelesses
and notwithstandings,” or any of the monotonous flummery connected
therewith, the case was again sent to the same referee, before whom the
same wearisome inquiry was repeated. This time, however, the referee
relieved the monotony, at the close, by rendering a decision in favor of
the defendant, for a large sum, instead of the plaintiff, as on the
former occasion.
This decision was a genuine surprise to the plaintiff, who then called
upon the defendant and expressed in severe terms his indignation at the
change that had been unwarrantably made in the decision of the referee,
saying he would not submit to it. He was extremely firm in his manner
and said: “I positively assure you that if the judgment is enforced this
town will not be large enough to hold you and myself.”
The successful defendant then said, “What do you want me to do?”
“Well,” replied the plaintiff magnanimously, “I simply desire to be
released of that judgment.”
“Will that satisfy you?” asked the other litigant.
“Yes,” he replied, “under the circumstances. I have had enough of such
law, and want to get rid of it.”
“Well,” said the defendant, “I will do it, and give you a receipt in
full in satisfaction of all claims.”
After this cordial termination of the trouble, the defendant turned to
the plaintiff and said confidentially, “I am sorry you did not take the
thirty thousand dollars which I offered you. I would sooner you had it
than anyone else, as I had to pay it all the same.”
The profound lesson of humility taught in Scripture, that “the first
shall be last and the last first,” was fully verified in this instance.
As litigation is now carried on either before a jury or a referee, it
has a tendency to stir up bad blood, which grows worse as the case
progresses through its various and lengthy stages, leaving relations
more strained and matters for both parties much worse at the end than at
the beginning. As the case drags its slow length along criminations and
recriminations between plaintiff and defendant are constantly elicited,
and family matters that should be regarded as sacred are dragged before
the eyes of the public, subjected to unfriendly criticism, and innocent
parties who have no interest in the case are subject to have their
private affairs made known, to their great mortification, and often to
their great detriment, having a cloud thrown over their reputation long
after the litigants have passed away.
Thus the evils of litigation are far reaching in their consequences, and
frequently exercise a most deleterious influence over the character and
prosperity of those who have nothing to do with the original parties to
the contest, and have no interest in the suit.
The expense is also another important consideration in going to law, and
is only to be measured by the bank balances of the contending parties.
The time lost in the methods of procedure now generally adopted is of
the utmost importance, especially to people the success of whose
business in a large measure may depend on their personal attention
thereto. It is perfectly astounding to reflect on the important portion
of a person’s existence that may be lost in one case, which, from its
inception in the lower court up through the regular gradations of the
Supreme Court and Court of Appeals when a new trial is had, probably
thus going over the entire ground twice, may consume all the way from
five to ten years under the perpetual pressure of mental anxiety and
torture before the end is reached, when at least one, and sometimes both
parties, are financially ruined.
The worry, wear and tear of attending to a lawsuit in the capacity of
either plaintiff or defendant is perfectly incomprehensible to those who
have never passed through the trying ordeal. A person in either
capacity, with his train of witnesses, is obliged to dance attendance on
court every day, no matter how pressing the necessities of his own
business may be. Books must be carried thither, and all his
establishment must be upset for the convenience of the court and to
gratify the whims and caprices of the opposing litigant. The business
places of the two contending parties are entirely disarranged, and the
help thrown into a state of partial disorganization. Each party to the
suit seeks to give the other all the trouble he possibly can, and to
subject him to all the sources of annoyance his imagination can devise.
Such is the spirit imbued by going to law.
A lawyer, therefore, who has about half a dozen moderate cases has thus
his entire time occupied, and while his clients keep out of bankruptcy
his income is as good as the annuity of a life insurance company, and
frequently the security is better.
The effect of the change which I propose, in the majority of cases where
merchants and business men find it necessary now to resort to legal
methods, would perhaps not render the life of the ordinary lawyer so
happy as it is under the present system, but the merchants would gain
ten-fold more than the lawyers would lose, so the effect upon the entire
community would be incalculably beneficial.
The system of arbitration which I contemplate could be extended in every
line of business throughout the entire country, with a Central
Association in New York or any other city that might be agreed upon. In
fact, there might be several business centres, one in each important
city, with its ramifications extending throughout the section in which
its commercial interests more immediately clustered. Branch associations
could be organized in the smaller cities and towns, enjoying all the
facilities of direct communication with the central body, and availing
themselves of all the information and statistics there collected, and
the nature of decisions in special and leading cases of settlement.
Each association in its own city or town should be considered fully
competent to deal with its own affairs, the Central Association being
only consulted as an advisory body. I should recommend also that each
association should have a governing committee, which should constitute
its Court of Appeal, whose decision should be deemed final.
It would hardly be necessary to prescribe penalties for the few isolated
cases that would kick against the arbitration system, and resort to law,
as their legal experience before they got through would be punishment
sufficient without the association taking any further action.
Discipline, however, of a mild character, would have to be enforced in
these and other special cases, for the better efficiency of
organization.
It might be well to have a rule whereby the parties submitting their
cases to arbitration should recognize the necessity, after having the
methods of procedure thoroughly explained to them, of putting themselves
under obligations to abide by the decision.
In carrying out a national idea of this kind of association, business
could be greatly facilitated and much expense saved by the various
committees having due regard to their places of meeting, so as to be as
near as possible to the centre of the greater number of the witnesses in
each particular case.
The courts, which are now greatly overworked, would be immensely
relieved by this system, and they would have more time to sift important
and exceptional cases which, in their nature, could not possibly be made
subjects of arbitration. There are quite enough of such cases to occupy
the time of the various courts.
One of the most vexatious and irritating things connected with court
trials is the constant attendance required, even when no progress is
being made in the case. The expenses, too, are always accumulating.
Though nothing is accomplished the attendance of the lawyers is far from
being a labor of love. Their services must be handsomely rewarded by the
litigants.
Such a process of settlement as I suggest would not, after all, be any
great hardship to the best of the legal fraternity, as there would be
enough work left for them, but it would afford immense relief to the now
overworked judges, while it would facilitate and forward the ends of
justice to an extent that can hardly be imagined by those who have been
always accustomed to the slow and monotonous machinery of the law
courts, and it would help to weed out the large camp following of
pettifoggers, whose occupation would be partially gone.
There is a great deal of time lost in regular court business, causing
much exasperation to the parties to a suit, in settling mere
technicalities and side issues of law, before the real merits of the
case can be reached. Many of these technical delays could be easily
disposed of by business men, on business principles, and by taking a
simple and common-sense view of the matter, by the usual methods pursued
in arbitration.
This new method of settling disputes would do away with the farce of
giving bonds in many cases, which is another great source of annoyance,
and which, after all, only amounts to a mere formality in a large number
of cases, and in many others a very hollow and fraudulent pretense, as
many of the bondsmen are only men of straw, and though technically
qualified, are not in reality responsible for the obligations undertaken
by them.
When good, reliable sureties are offered, in many instances they are put
through an irritating course of examination in relation to their private
affairs, much of which is entirely unnecessary, and only designed to
perplex and annoy them. They are thus obliged to expose matters relating
to their private business, about which the public have no right to know
anything, and they are often examined in such a way, as if they
themselves were on trial, and were attempting criminal concealment of
something that they had a right to disclose. A good deal of this arises
from the impudent, unmannerly style of certain lawyers, who treat a man
as a criminal suspect, when he has no interest in the case whatever, but
has simply come voluntarily forward to assist a friend in trouble.
This is all, however, in the present method of procedure, connected with
the machinery of so-called justice, and this kind of abuse has been