The American Judiciary

by Simeon E. Baldwin

Trial courts generally sit during a greater number of hours in the day than appellate courts. This is particularly true when they are held for short terms in a country shire town. In the larger cities where they sit during a large part of the year they generally have established hours from which they rarely depart, such as from ten in the morning to five in the afternoon, with a recess of an hour for lunch or dinner. Formerly nine o'clock was a more common hour for opening court. In New York in 1829 the sittings were from eight to three, when there was a recess of two hours for dinner, and then from five till some time in the evening, occasionally as late as ten.[Footnote: Kennedy, "Memoirs of William Wirt," II, 231.]

The modern tendency everywhere is toward a shortening of the hours of daily session, especially when an official stenographer is employed.

The clerk keeps a docket-book in which each case returned to court is entered and numbered. The entry reads thus:

John Doe
Smith

vs.

Richard Roe
Jones.

Doe is here the plaintiff and Smith is the attorney who brought the suit for him. Roe is the defendant and Jones is the attorney who appears in his behalf. If there be more than one party on either side the words et al. will be added, signifying as the case may be, et alius, et alii or et alium,_ or should there be three or more defendants, et als, signifying et alios.[Footnote: Another book is kept for criminal cases, which are docketed as "The State v. John Doe," in others as "The People v. John Doe," and in the federal courts as "The United States v. John Doe.">[ From this docket trial lists are made up for each term or session of court. Assignments for trial are sometimes made by the court and sometimes arranged by the bar subject to the approval of the court. Several cases are commonly set down for each day, so that if one falls out another may be ready, and in every case so assigned the parties must be prepared at their peril to appear and proceed at any minute when called upon.

In courts having a large docket of cases it is customary to set apart one day in the week for the disposition of incidental motions and for arguments on points of law.

When a case is called for trial the plaintiff's counsel opens by stating its nature and the main facts as set out in the declaration or complaint which he expects to prove. Sometimes the pleadings on both sides are read at length. The plaintiff's witnesses are then examined orally, after the examination of each an opportunity being given for his cross-examination by the other party. The testimony of witnesses whose attendance cannot be had, which may include any living out of the State (or, in the federal courts, over one hundred miles from the place of trial), or who are infirm or sick, may be secured by previously taking it down out of court in the form of a written deposition, under oath, before a magistrate. In such case the adverse party must have such notice as to enable him to be present and cross-examine the deponent, or to file written cross-interrogatories. Depositions are received in the same manner and subject to the same objections as oral testimony. In cases in equity a considerable part of the testimony is generally presented in written form, either by depositions of the kind described or certified by a special officer appointed by the court for the purpose, who may be called an "examiner."

When the plaintiff's case has been thus presented, his attorney announces that he "rests." The defendant's attorney then states what he proposes to prove, and produces his evidence, at the close of which the plaintiff has the opportunity to meet any testimony so produced as to points not covered by the plaintiff's case as presented "in chief," by rebutting testimony. Should there be any new point brought out in the latter which the defendant had not anticipated in presenting his case (which rarely happens), he may now be allowed to introduce further testimony as to that.