The American Judiciary

by Simeon E. Baldwin

At the close of the evidence the plaintiff's counsel argues for his client; the defendant's counsel replies; and the plaintiff's counsel is then heard in answer to anything which has been said in behalf of the other side.

If the trial has been had before a judge without a jury he then commonly takes the written pleadings and makes up his decision at his leisure; but if the case is plain may give final judgment on the spot.

If the trial has been before a jury the parties argue as to facts in dispute to them, but as to the law upon these facts to the court.[Footnote: See Chap. XII.]

In some States the arguments on the latter question are made before those on the former, and written requests or "prayers" for instructions to the jury as to the law are submitted to the court, upon which it passes before the jury are addressed. In most States there is no such division of argument; judge and jury are addressed in turn during the same speech, and counsel first know what view of the law is taken by the court when the judge gives his final charge.

In every jury trial, after all the evidence is in and the arguments concluded, it is the duty of the court to instruct the jury as to what the precise controversy is and what disposition of the cause it would be permissible for them to make. If in view of facts which are undisputed by either party there can be in law but one conclusion, the judge should direct them to render a verdict accordingly. But if the facts might fairly be found as they are claimed to be by either party, he instructs them as to the law applicable to the facts so claimed by each. He can, at common law and by the practice in most States, give his own opinion as to the weight of evidence on any point in controversy.

The common law requires unanimity on the part of the jury before they can return a verdict. If it cannot be had they report a disagreement, and the case stands over for another trial.

If they agree upon a verdict, it must, to be effective, be accepted by the court. This acceptance is ordinarily a matter of course, but if the verdict is plainly contrary to the evidence or to the law as laid down in the charge, it may be set aside and a new trial ordered. If it gives damages which are plainly excessive, the judge may set it aside, unless the prevailing party enters a remittitur of a certain amount, that is, formally stipulates on the record that the verdict shall stand only for such sum as the judge may have thus indicated to be what seems to him to be the utmost limit that ought to be allowed. In some States, if the verdict is unsatisfactory to the judge, though not so manifestly against the evidence that he would be justified in setting it aside, he may return the jury to a second consideration of the cause.

When a verdict is accepted judgment is rendered in accordance with it. To this rule there are, however, certain exceptions. It sometimes happens that a verdict is returned for a plaintiff whose case as stated in his pleadings is one which in law is no case; the defendant having failed to take this objection and made his contest only on the facts. He then can ask the court not to render any judgment upon it. This is technically called a motion in arrest of judgment. Again, the verdict may be rendered, by reason of the state of the written pleadings, on some immaterial point, in favor of one party, when there are other points of controlling importance in favor of the other, on which it has been admitted that he is in the right. In such case the party against whom the verdict is rendered may ask for judgment in his own favor notwithstanding the verdict.

Verdicts are ordinarily given directly for the plaintiff or the defendant. Printed blanks for such verdicts, one headed "plaintiff's verdict," and the other "defendant's verdict," are often handed to the jury when they retire, to choose from according as they may find the facts. Such a verdict is called a general verdict. Occasionally one of a different form is returned at the request of counsel and by the permission of the court. This is termed a "special verdict," and sets forth the particular facts as found by the jury in detail, without finding the ultimate issue for either party. This is only proper when such a finding would have been simply a legal conclusion from these facts. A special verdict leaves it to the court to apply the law and render judgment as that requires.

In many causes the testimony is all taken out of court, before some officer or arm of the court, who only reports his conclusions from it as to the matters in controversy. This is a common practice in equity, the case being sent to a "master in chancery" for this purpose. In cases of a common law nature the consent of both parties is generally required; but with that any cause may be disposed of before an arm of the court commonly termed an "auditor," "referee" or "committee."