THE OKLAHOMA LAW JOURNAL EDITED AND PUBLISHED MONTHLY BY D. H. FERNANDES, GUTHRIE, Oklahoma. VOL. 12. February, 1914. TEACHING PRACTICE. By Hon. E. R. Sunderland, of the University of Michigan. No. 8 The teaching of trial practice has scarcely been attempted in most of the law schools of this country. And the reason probably lies in the failure to clearly distinguish between trial practice as a body of well-defined and accurately developed principles of procedure and trial practice as a vague and shadowy discourse on success in advocacy. The law schools cannot undertake to teach men how to read character; how to cultivate an impressive manner; how to skillfully interrogate a witness; how and when to appeal to the emotions of the jury; how to delicately flatter or severely arraign. They cannot teach resourcefulness and tact. The art of expression and the skill of strategy are outside the proper scope of the schools of law. All of these things are as necessary in selling goods or teaching school as in practicing law. The art of advocacy is the art of life, and only life can teach what life is. But if trial practice is viewed as the keystone of a systematic scheme of procedure, concerning itself with the principles by which the problems pertaining to the conduct of the trial are analysed and solved, it becomès a very different thing. Such a subject is accurate, logical, and professionally technical. It concerns the very essence of procedure, and it is as solidly intellectual as any other branch of the law. A glance at the subject-matter embraced by the notion of the trial will at once disclose its adaptability to law school instruction. It includes the scope, plan and purpose of the statutory systems for obtaining venires, and the theory of their interpretation; the doctrines relative to the examination of jurors on their voir dire, and bias and challenges; the functions of the opening statement and the right to open and close; the principles underlying the different methods of withdrawing the case from the jury, such as non-suit, direct verdict and demurrer to the evidence; the theory and practice of preparing instructions for the jury; the purpose and propriety of special interrogatories and special verdicts; the doctrine of new trials and the conditions and limitations under which they may be granted; the rules regulating the conduct of counsel while in the presence of the jury. All these subjects, with perhaps two or three others, are of primary importance to the lawyer who appears in court. They have been worked out accurately and comprehensively by the courts in a vast array of decisions. They are based on the closest logic, and the broadest policy. They have called forth the best thought of able judges. They lie at the very heart of our judicial system, for of what value are rights if remedies fail? The trial serves a single and perfectly definite purpose. Trial practice, which concerns its conduct, is not a mere collection of unrelated rules, but a closely articulated subject in which every part bears a demonstrable relation to every other and to the whole. A study of it gives unity to procedure, and puts vitality into many a dry rule. Plead ing and evidence can never stand forth in their true significance until they have been given their proper place as incidents of the trial. Now, so far as concerns the question, how to teach prac tice, it is quite obvious that the principles of the subject can be taught in exactly the same way as any other branch of the law, except that I believe the case system is more imperatively necessary than elsewhere. In all procedure subjects the principles depend so intimately in the facts of the cases in hand that they mean little when divorced from the facts. And this is especially true of trial practice. One common fallacy has perhaps done much to deter the schools from seriously taking up the subject, and that is the prevalent idea that trial practice is essentially local in its close dependence on statutes and court rules. But the reverse is more nearly the truth. The basic pinciples underlying the subject are absolutely general in the scope and application. Variations occur in minor points but I believe there is no subject of the law, either in proce dure or the substantive branches, where there is less diversity in fundamentals and in the principles of interpretation than in trial practice. If it be conceded that trial practice should be taught, another step logically suggests itself. The student of chemistry is taught the principles of qualitative analysis, but he is also taught how to put those principies to use in analysing unknown combinations of chemical substances. The engineering student is taught in shop courses how to apply the principles learned in the books. Medical and dental students have clinical cases to work upon. Why should not the law student have cases in procedure? The practice court constitutes the affirmative answer of many law schools to this question But I am inclined to think that the de velopment of practice courts has been hampered by an incorrect coction of their true function. A practice court is certainly not a mere imitation of a real court. It cannot survive amid the press of work in the brief period allowed for modern legal education unless it does something more than allow men to play they are lawyers. Going through the motions of a trial, even under the supervision and criticism of a competent teacher, is in itself a comparatively unproductive process. On the contrary the practice court should be a means and method for actually coordinating the various branches of procedure. It should furnish an opportunity for the students to marshal the principles of procedure as studied theoretically and employ them in analysing and solving specific problems of litigation. It should teach a method of attack. To do this it must provide much more than a court room, a judge and a jury. To produce a law-school trial which shall serve a useful educational purpose, there must be two things; first, a set of facts must be developed analagous to the facts in a litigated controversy, and, second, there must be a thorough and technical preparation of those facts in all their legal possibilities, by students representing both sides of the controversy. The first may be done by arranging actual transactions among students selected from the school, and carrying them out in such a way that issues of fact respecting them shall develop. Suppose a dozen men are called upon to serve as actors and witnesses in a case. The sharacter under which each appears, such as that of a contractor or a bank cashier, is assumed. In that capacity each proceeds to take the part assigned, carrying on conversations, executing papers, writ ing letters, telephoning, or doing whatever is requisite to fill out the schedule of events which the instructor has devised to raise suitable issues of fact, It is easy for the actors to be coached as to what to do and say. After the words are spoken or the acts are performed, they become as properly the subject of future investigation as do any of those events which form the basis of actual law suits. The actors ran truthfully testify as to what they did; the witnesses may relate what they saw and heard. The case exists only in the doings of those actors, and students assigned to the case as attorneys have access to the same sort of evidence that the practicing lawyer deals with. The case is in every sense an actual case, though artifically produced. It is not assumed, Practically everything that will be shown in evidence will lave actually happened. Having created this foundation for the action, the preparation of the case proceeds along strictly professional lines, And it is here that the chief educational value of the work appears. The theory of the prosecution and defense must be worked out, the pleadings must be drawn, the evidence must be arranged in proper form for orderly and logical presentation in court, the rules respecting proof must be carefully gone over to insure against exclusion at the trial, the probabilities of objections being raised at the trial must be estimated and contingencies prepared for, instructions properly covering the law of the case must be drawn, the feasibility of employing special interrogatories must be determined, the qualifications of the jurors must be investigated and grounds for challenge fixed upon. In doing all these things the student is really employing the principles of procedure. He is given a case at large. The entire responsi bility for it rests upon him. He must work it out from beginning to end, and his work is essentially a lawyer's work. It calls in question all the knowledge of the principles of |