vindicating rights because of the imperfect workings of the jury system.

Note:

I. Consider all the chances before bringing a lawsuit.

§ 29. Bringing a Suit in Equity

The outline given applies to a court of law. If the court is a court of equity jurisdiction, the procedure is essentially the same except that the first statement may be called a petition or a bill in equity. In New York complaints are also used in equity. All procedure in courts follows generally the lines laid down, with many variations as to details and incidentals.

A suit in equity can be brought only when the party cannot obtain justice at law. The other party must answer the petition or the bill. Copies of all papers must be served on the opposite party by the party making the charges.

In a suit in equity, only a judge, or several judges, hear the case. For this reason a court of equity is not so strict about keeping out evidence that does not properly have anything to do with the case, or that might prejudice a jury. The judge is supposed to know the law and to be guided only by such evidence as ought to be allowed to affect the decision of the case.

A court of equity tries to give a remedy to fit the nature of the wrong that is being done. If the wrong consists in a refusal to perform a contract, the court will, in some instances where the contract should be performed, compel the offending party to carry out his agreement. (See Chapter XII.) If the wrong alleged consists in the defendant's continuing to do anything which is injuring another, the court will issue wha is called an injunction forbidding the continuance of the injurious conduct. Practically speaking, however, the courts are chary of granting an injunction where it may be avoided.

It is useless to attempt to bring an action in equity unless

the party is certain that he can prove to the court that the damages which he can obtain at law will not compensate him for his injury, and unless he is willing to do everything which the court may require from him in the interests of justice. The maxim is that he who seeks equity must do equity.

Another maxim in equity is that he who comes into a court of equity must come with clean hands, i.e., if the complainant alleges fraud, he must show that he has been scrupulously fair in all his own dealings.

If the party resorts to equity when he should have instituted an action at law, he will merely find that he is obliged to go to the added expense of bringing action at law. The practice in equity is no less complicated than that at law.

§30. Appeals to a Higher Court

The decision of a trial may be appealed from by the dissatisfied party. The unsuccessful litigant has to pay the damages adjudged to be due his opponent, the costs of the suit, and the fees of his own lawyer. His fighting blood is stirred by the evidence that brings to mind the original dispute and the perverseness of the opposite party, by the arguments of the counsel on each side, and by the failure of the court and jury to give them the weight he feels they have, and he feels as if he would spend all he has to vindicate himself and to punish those who have wronged him.

His lawyer feels much the same way, and, as he is paid for appealing instead of having to pay, he can better afford to indulge his feelings. Usually the first thing is to file exceptions to the alleged irregularities in the trial; that is, happenings of the following nature:

That evidence was admitted which should have been shut out.

That evidence was rejected which should have been admitted.

That questions were allowed which should have been barred.

That questions were disallowed which should have been allowed.

That the judge charged the jury in a way he should not have charged it.

That the judge refused to charge the jury as requested and as he should have charged it.

That the verdict was excessive, or inadequate, or not supported by the evidence.

Then a motion is made for a new trial and, if this is overruled, counsel announces that he will appeal. The losing party cannot commence a new action. He is barred from any such proceeding, otherwise a wealthy plaintiff could ruin his opponent by continued new actions. He can, though, in most cases appeal to a higher court.

The appeal is a costly and complicated proceeding. All of the papers and much, in some cases all, of the evidence must be printed. Then the arguments of each of the opposing counsel, ironically termed "briefs," are printed. After more delay and often much sparring of counsel over points of procedure, the case will take its place on an appeal docket and in due course will be reached by the appellate court. Next the case is heard, which means that counsel for both sides. appear and argue the case on appeal. Finally the court takes. it under consideration and if a new trial is granted it must be tried again in the original court. In most states there may be indefinite appeals until the case has reached the court of last resort, been decided there on the last technicality, and a rehearing has been asked for and refused. There is always delay between appeals, and it is entirely possible for a lawsuit to go on for years and become an heirloom, which is handed on from generation to generation. It will be seen

that the person or the corporation with the longest purse has a great advantage. Such a one can employ more experienced and abler counsel and can stand the mounting costs better than the person who has nothing but a just cause.

Attempts have been made from time to time to simplify procedure and to make litigation less costly and less dilatory, but so far without any great measure of success. To laymen both courts and counsel often appear much more concerned in observing the rules of the game than in administering justice as between man and man. As stated in one of our legal periodicals: 1

1

While every other profession has been practically made over in the past twenty-five years, the conservatism of the legal profession has stood in the way of substantial changes in the rules of procedure and practice.

Elihu Root, in the foreword to "Justice and the Poor"

states:

We have had in the main just laws and honest courts to which people-poor as well as rich-could repair to obtain justice. But the rapid growth of great cities, the enormous masses of immigrants (many of them ignorant of our language), and the greatly increased complications of life have created conditions under which the provisions for obtaining justice which were formerly sufficient are sufficient no longer. I think the true criticism which we should make upon our own conduct is that we have been so busy about our individual affairs that we have been slow to appreciate the changes of conditions which to so great an extent have put justice beyond the reach of the poor.

Ex-President Taft, in an address before the Virginia Bar Association, said:

Of all the questions which are before the American people, I regard no one as more important than the improve

1 Case & Comment for July, 1917.

ment of the administration of justice. We must make it so that the poor man will have as nearly as possible an equal opportunity in litigating as the rich man, and under present conditions, ashamed as we may be of it, this is not the fact. Note:

I. Before becoming involved in litigation reckon the cost, to the limit of the last appeal.

§ 31. Advisability of Litigation

There are circumstances under which it is necessary to go to law, and then its advisability is not open to discussion. Such circumstances may be compared with cases in which surgical operations have become imperative. The only question then is to be sure that you secure a skilful attorney to represent you. But many cases arise where there is strong temptation to bring suit, but where it might be more prudent to compromise or settle by other means. What follows applies to these debatable cases.

When you feel that you have been wronged and consult a lawyer, you want him to sympathize with you, to assure you of the merits of your case, and to advise you to show the other party that he cannot ride rough-shod over you. This is the lawyer's selling talk that you expect. You tell him to go ahead and cheerfully give him a check for few hundred, which he says will be plenty to keep things moving until the case comes to trial.

If instead, he tells you judicially that, while you have a good case, it will save time and money to compromise in some way rather than to litigate, you take it as an unfriendly act, grudge him his modest fee for saving you a lawsuit, and tell your friends that he is too cautious ever to make much at the bar. Next time you have trouble you think you will find a lawyer with a little more "sand."

Lawyers know that most men who consult them feel this