Selected Papers of Homer Cummings, Attorney General of the United States, 1933-1939

By Homer S. Cummings; Carl Brent Swisher | Go to book overview

2. Formulation and Adoption of New Rules of Civil Procedure

Bar and bench unite in formulating new rules of procedure; an address at a conference of the Fourth Judicial Circuit of the United States, June 6, 1935:

ON A PREVIOUS occasion I made the statement that: "Courts exist to vindicate and enforce substantive rights. Procedure is merely the machinery designed to secure an orderly presentation of legal controversies. If that machinery is so complicated that it serves to delay justice or to entrap the unwary, it is not functioning properly and should be overhauled." This should be a measure of the task upon which we are engaged. It may very well be that because of our familiarity with certain procedural rules and devices it is more convenient for us as lawyers and judges to continue their use. That, however, is not the test which we should apply. * * *

Something which we have long done and have become used to doing may not necessarily be the best way of accomplishing the desired objective. I have frequently observed, in the contacts which I have made with procedural rules in various states, that on one side of an imaginary boundary line there may be in practice a cumbersome complicated rule, while on the other side of the line a most simple convenient one obtains. Apparently it does not occur to the lawyers of the first state that it may be possible to avail themselves of the simpler method.

The very history of the securing of the legislation which made our present effort possible provides a good example of the stultifying effect of inertia and indifference in approaching these problems. The important thing is to observe that it was accomplished in the face of prophecy of certain failure. The first step has been taken. The only problem now remaining is whether

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