The Disappearance of Civil Trial in the United States

By Langbein, John H. | The Yale Law Journal, December 2012 | Go to article overview

The Disappearance of Civil Trial in the United States


Langbein, John H., The Yale Law Journal


II. EQUITY: NONTRIAL AND NON JURY CIVIL PROCEDURE

Jury procedure made it awkward for common law courts to administer specific remedies, such as the injunction (cease this) or the decree of specific performance (do that). (68) Specific relief often requires continuing supervision and modification as circumstances change, (69) but a jury dissolves once it has delivered its verdict. Accordingly, the early common law courts largely confined themselves to awarding money damages (70) except in cases involving ownership or possession of real property. (71) But no society can long tolerate a legal system that lacks the power to grant specific remedies.

The English solved this dilemma in the later fourteenth and fifteenth centuries by creating a second system of civil justice, which came to be called equity, and which was administered primarily (72) in a new court, the Court of Chancery, which employed nonjury procedures. The judge, called the chancellor, exercised the power to order specific relief, (73) based upon his power to imprison a person who disobeyed his decree. (74) The early chancellors were bishops. Having been keepers of ecclesiastical courts in their dioceses, they were experienced in Roman-canon civil procedure. (75 They patterned Chancery civil procedure on the Roman-canon model, although with many departures. (76)

In a Chancery case, proceedings were discontinuous rather than concentrated; witness testimony was collected in closed sessions and reduced to writing rather than heard orally. (77) The chancellor based judgment on reading the evidence in the court file rather than hearing live testimony. Chancery developed the ability to handle multiparty and multi-issue litigation, (78) which the common law courts had been largely unable to entertain, (79) both for fear that such cases were too complex for jurors and because such cases did not fit within the bipolar pleading process.

Beyond remedy law, Chancery's other great contribution to English civil procedure was to enable the use of witness testimony and documentary evidence. Because common law civil procedure took shape at a time when the supposition was that a jury from the vicinity of the events already knew the facts, the early common law developed virtually no means for investigating the facts. "The common law made no provision for the interrogation of adverse parties on oath as a means of proof," (80) nor for the examination of nonparty witnesses, nor for the production of a document not already in the possession of the party seeking it. Chancery, by contrast, drawing on the Roman-canon tradition, developed procedures that enabled a litigant (1) to obtain sworn responses from an opposing litigant; (81) (2) to require nonparty witnesses to answer interrogatories on oath; (82) and (3) to compel the production of relevant documents. (83)

Thus, by early modern times, the English were operating two distinct civil procedure systems: the common law system, rooted in jury trial, and the supplementary system of equity, which employed nonjury and nontrial procedure. The common law courts had jurisdiction over most of the law of property and obligations. Even in those fields, however, a common law litigant had to bring a parallel action in Chancery, either to obtain documents needed in a common law trial, (84) or to enforce a common law judgment by means of an injunction or a decree of specific performance. Bringing that second lawsuit was costly: Sequencing the two actions was complex, (85) and because a litigant seeking discovery of documents was required to "describe them with reasonable certainty," (86) he had to know in advance what he was looking for.

The Americans absorbed this dual system of civil procedure, with jury trial at common law and nonjury proceedings in equity. Some states, such as New York and Delaware, replicated the English system of separate courts of law and equity. In other states, notably Massachusetts and Pennsylvania, and in the federal courts, one court administered both systems with varying degrees of distinctness. …

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