Of Judicature

Author(s): Francis Bacon

Source: Litigation, Vol. 9, No. 3, JUDGING (Spring 1983), pp. 64, 53-54
Published by: American Bar Association
Stable URL: http://www.jstor.org/stable/29758802 .
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Literary
Trials
Judges ought to remember that their
office isjus dicere, and notjus dare; to
Of interpret law, and not tomake law, or
give law. Else will it be like the
Judicature authority claimed by the church of
Rome, which under pretext of exposi?
tion of Scripture doth not stick to add
and alter; and to pronounce that
which they do not find; and by shew of
by Sir Francis Bacon antiquity to introduce novelty. Judges
ought to be more learned than witty,
more reverend than plausible, and
more advised than confident. Above
all things, integrity is their portion
and proper virtue. Cursed (saith the
law) is he that removeth the land?
mark. The mislayer of a mere-stone is
to blame. But it is the unjust judge
that is the capital remover of land?
marks, when he defineth amiss of
lands and property. One foul
sentence doth more hurt than many
foul examples. For these do but cor?
rupt the stream, the other corrupteth
the fountain. So saith Solomon, Fons
turbatus, et vena corrupta,
cadens in causa sua coram
sario: A righteous man falling down
before the wicked is as a troubled
fountain or a corrupt spring. The of?
fice of judges may have reference unto
the parties that sue, unto the ad?
vocates that plead, unto the clerks
and ministers of justice underneath
them, and to the sovereign or state
above them.
First, for the causes or parties that
sue. There be (saith the Scripture)
that turnjudgment into wormwood;
and surely there be also that turn it in?
to vinegar; for injustice maketh itbit?
ter, and delays make it sour. The
principal duty of a judge is to suppress
force and fraud; whereof force is the
more pernicious when it is open, and
fraud when it is close and disguised.
Add thereto contentious suits, which
ought to be spewed out, as the surfeit
of courts. A judge ought to prepare
his way to a just sentence, as God
useth to prepare his way, by raising
64
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valleys and taking down hills: so when
there appeareth on either side an high
hand, violent prosecution, cunning
advantages taken, combination,
power, great counsel, then is the vir?
tue of a judge seen, tomake inequality
equal; that he may plant his judgment
as upon an even ground. Qui farther
emungit, elicit sanguinem: Violent
blowing makes the nose bleed; and
where thewine-press ishard wrought,
ityields a harsh wine, that tastes of the
grape-stone. Judges must beware of
hard constructions and strained in?
ferences; for there is no worse torture
than the torture of laws. Specially in
case of laws penal, they ought to have
care that that which was meant for
terror be not turned into rigour; and
that they bring not upon the people
that shower whereof the Scripture
speaketh, Pluet super eos laqueos:
He shall rain snares upon them; for
penal laws pressed are a shower of
snares upon the people. Therefore let
est justus
penal laws, if they have been sleepers
adver of long, or if they be grown unfit for
the present time, be by wise judges
confined in the execution: Judicis of?
ficium estt ut res, ita tempora rerum,
& c.: A judge must have regard to the
time as well as to thematter. In causes
of life and death, judges ought (as far
as the law permitjteth) in justice to
remember mercy; and to cast a severe
eye upon the example, but a merciful
eye upon the person.
Secondly, for the advocates and
counsel that plead. Patience and
gravity of hearing is an essential part
of justice; and an overspeaking judge
is no well-tuned cymbal. It isno grace
to a judge first to find that which he
might have heard indue time from the
bar; or to show quickness of conceit in
cutting off evidence or counsel too
short; or to prevent information by
questions, though pertinent. The
parts of a judge in hearing are four: to
direct the evidence; to moderate
(Please turn to page 53)
ference agreed that the bench and bar
must cooperate to improve discovery
practices. I would like to share with
you two examples of that spirit.
In the Southern District of Ala?
bama, a committee of trial lawyers
from various specialties worked with a
federal judge and a magistrate to
prepare a booklet about local discove?
rypractice. The booklet, entitled "In?
troduction toDiscovery Practice in the
Southern District of Alabama," is an
informalguide to explain how the civil
discovery rules are ordinarily inter?
preted and applied in that district.
The manual is clear and concise.
The first topic discussed is courtesy.
Lawyers are advised that "discovery in
this district is normally practiced with
a spirit of ordinary civil courtesy and
honesty." If that simple principle
could be exported to all other federal
jurisdictions, many discovery prob?
lems would disappear. Explore the
possibility of preparing a civil dis?
covery handbook in your jurisdiction.
Judicial Management
As a result of his participation in the
Austin Conference, Chief Judge Jack
Weinstein (E.D.N.Y.) appointed a
committee of judges, magistrates, and
trial lawyers in his district to ac?
complish the following:
? which obtaineth not; for that upholds
Study how discovery practices can
be improved and review ways in
which judges, magistrates, and law?
yers can work together tominimize
disputes about discovery;
? Draft
proposed discovery rules for
the district; and
? Educate the bar on themechanics
of discovery through a handbook
about discovery procedures and
continuing education at law schools
and local bar associations.
Edwin J.Wesely, a member of the
Section's special committee, is chair?
man of the committee in the Eastern
District of New York. His group is
hard at work, and we look forward to
receiving the results of their labors.
Judicial management is descending
on us because some trial lawyers have
not acted responsibly indiscovery.We
must recognize that zealous advocacy
does not require turning over every
pebble. If trial lawyers will act more
responsibly in discovery, judges can
foregomanagement and return to de?
ciding cases.
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Literary
Trials
(Continued from page 64)
length, repetition, or impertinency of
speech; to recapitulate, select, and
collate the material points of that
which hath been said; and to give the
rule or sentence. Whatsoever is above
these is too much; and proceedeth
either of glory and willingness to
speak, or of impatience to hear, or of
shortness of memory, or of want of a
staid and equal attention. It is a
strange thing to see that the boldness
of advocates should prevail with
judges; whereas they should imitate
God, in whose seat they sit; who
represseth the presumptuous, and
giveth grace to the modest. But it is
more strange, that judges should have
noted favourites; which cannot but
cause multiplication of fees, and
suspicion of bye-ways. There is due
from the judge to the advocate some
commendation and gracing, where
causes are well handled and fair
pleaded; especially towards the side
in the client the reputation of his
counsel, and beats down in him the
conceit of his cause. There is likewise
due to the public a civil reprehension
of advocates, where there appeareth
cunning counsel, gross neglect, slight
information, indiscreet pressing, or
an over-bold defence. And let not the
counsel at the bar chop with the
judge, nor wind himself into the
handling of the cause anew after the
judge hath declared his sentence; but
on the other side, let not the judge
meet the cause half way, nor give oc?
casion for the party to say his counsel
or proofs were not heard.
Thirdly, for that that concerns
clerks and ministers. The place of jus?
tice isan hallowed place; and therefore
not only the bench, but the foot-place
and precincts and purprise thereof,
ought to be preserved without scandal
and corruption. For certainly grapes
(as the Scripture saith) will not be
gathered of thorns or thistles; neither
can justice yield her fruitwith sweet
53
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ness amongst the briars and brambles
of catching and polling clerks and
ministers. The attendance of courts is
subject to four bad instruments. First,
certain persons that are sowers of suits;
which make the court swell, and the
country pine. The second sort is of
those that engage courts in quarrels of
jurisdiction, and are not truly amici
curiae, butparasiti curiae, inpuffing a
court up beyond her bounds, for their
own scraps and advantage. The third
sort is of those thatmay be accounted
the lefthands of courts; persons that
are full of nimble and sinister tricks
and shifts, whereby they pervert the
plain and direct courses of courts, and
bring justice into oblique lines and
labyrinths. And the fourth is the poller
and exacter of fees; which justifies the
common resemblance of the courts of
justice to the bush whereunto while the
sheep flies for defence inweather, he is
sure to lose part of his fleece. On the
other side, an ancient clerk, skilful in
precedents, wary in proceeding, and
understanding in the business of the
court, is an excellent finger of a court;
and doth many times point theway to
the judge himself.
Fourthly, for that which may con?
cern the sovereign and estate. Judges
ought above all to remember the con?
clusion of the Roman Twelve Tables;
Salus populi suprema lex; The good of
the people is the supreme law; and to
know that laws, except theybe in order
to that end, are but things captious,
and oracles not well inspired. There?
fore it is an happy thing ina statewhen
kings and states do often consult with
judges; and again when judges do
often consult with the king and state:
the one, when there ismatter of law in
tervenient in business of state; the
other, when there is some considera?
tion of state intervenient inmatter of
law. For many times the things de?
duced to judgment may be meum and
tuum, when the reason and conse?
quence thereofmay trench to point of
estate: I call matter of estate, not only
the parts of sovereignty, but whatso?
ever introduceth any great alteration
or dangerous precedent; or concerneth
manifestly any great portion of people.
And let no man weakly conceive that
just laws and true policy have any an?
tipathy; for theyare like the spirits and
sinews, that one moves with the other.
Let judges also remember, that Solo
mon's throne was supported by lions
on both sides: let them be lions, but yet
lions under the throne; being cir?
cumspect that theydo not check or op?
pose any points of sovereignty. Let not
judges also be so ignorant of their own
right, as to think there is not left to
them, as a principal part of their of?
fice, a wise use and application of laws.
For theymay remember what the apos?
tle saith of a greater law than theirs;
Nos scimus quia lex bona est, modo
quis ea utatur legitime:We know that
the law isgood, ifa man use it lawfully.
Trial
Balloon
(Continued from page 4)
hardships if the moving party can
show the makings of a real case. See
William Inglis & Sons v. ITT Conti?
nental Baking Co., 526 F.2d 86 (9th
Cir. 1975); Gresham v. Chambers,
501 F.2d 687 (2d Cir. 1974); Wash?
ington Metropolitan Transit Com?
mission v.Holiday Tours, Inc., 559
F.2d 841 (D.C. Cir. 1977); Black
welder Furniture Co., of Statesville v.
Selig Manufacturing Co., 550 F.2d
189 (4th Cir. 1977); Semmes Motor,
Inc., v. Ford Motor Co., 429 F.2d
1197 (2d Cir. 1970).
Some very bright and widely re?
spected plaintiffs' antitrust lawyers
are now on a state-court binge, touched
offby threats by the assistant attorney
general for antitrust to intervene in
certain private antitrust cases to ad?
vocate moderation in judging trade
restraints by large companies. I take
issue with that for the reasons that I
have already discussed and for these
additional reasons. The focus of this
back-to-state-court movement is that
90 percent of private antitrust cases
brought in federal court are disposed
of on summary judgment. The reason
for this statistic is not fault with the
federal judiciary. The reason for this
is that these cases were, for the most
part, not antitrust cases to begin with
and would not have been brought had
there been competent investigation
and analysis of the facts to see if there
was evidence to support the accusa
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tions and, if so, to gain insight into
whether the facts really showed an
antitrust violation or just a breach of
contract or some form of common-law
unfair competition, or even a simple
exercise of someone's right to refuse
the deal with somebody else that did
not have as itspurpose the furtherance
of some illegal scheme. The federal
courts don't deserve blame for lawyer
incompetence in this area.
Among Friends
Many times I have had to tell a
client and his regular lawyer who
brought him to me for an antitrust
consultation that there were no anti?
trust violations on the facts told tome,
and have had to decline to bring suit,
only to hear the lawyer say that we
should allege an antitrust violation as
a separate count anyway in the hope
of scaring somebody into a settle?
ment. Most of these guys even say this
in the client's presence. No wonder
clients think that our job is toget them
what they want, come hell or high
water.
Most state antitrust laws, to which
you are limited ifyou are going to sue
in state court, are antiques that have
rarely ever been used. Their interpre?
tation, iftheyare deemed to be inpari
materia with the federal antitrust
laws, requires that you teach the
federal antitrust cases to the local
judge through the use of your copying
machine.
I'd love to see these guys explain to
the client that the judge found that
therewas an antitrust violation under
the state statute, but that the statute
applies only to commodities and not
to services (and this is a services case),
or that land is not a commodity under
that act (if it is a tying arrangement
case), or that the language difference
between the state act and the Sher?
man Antitrust Act, 15U.S.C. ? 1, are
such that under the state law a plain?
tiffmust prove substantial harm to
the public at large as an element of his
cause of action, which would not be
required in a per se case under the
Sherman Act where public harm is
presumed in certain cases like price
fixing and boycotts. Try arguing the
summary judgment motion in such a
case where you find you are item No.
18 on themiscellaneous calendar call
after three hours of friend-of-the
court arraignments of fathers who are
in arrears in child support payments,
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before a judge who, in some local
court systems, hears all miscellaneous
motions some weeks?whether or not
he is the judge who is going to try the
case. In some jurisdictions the trial
judge never sees the case until trial
day?all pretrial matters go to the
judge whose name got stamped on the
complaint when itwas filed.
Wait till you get to trial and find
that the file is four feet thick and the
court has allotted an hour and a half
for trial. Opposing counsel rushes in
fiveminutes after the judge has taken
the bench, apologizing for tardiness.
The judge leans over and says to him,
"Bob, after all themoney you lost and
all you had to drink last night, I'm
surprised you showed up here today at
all." Then you know you are among
friends,but youmay not be one of them,
them.
Most state trial judges have never
seen a set of interrogatories dealing
with anything other than a quest for
witnesses and medical treatment in?
formation and insurance coverage in
a personal-injury case or a quest for
some poor devil's property and bank
accounts in an alimony fight. Typical
interrogatories and demands for pro?
duction of documents in any kind of
antitrust or director misfeasance case
will absolutely blow the local judge's
mind. The party against whom such
discovery is sought will always have to
oppose itbecause itsvery scope seems
at first blush to the local judge to be
outrageous. The burden of showing
and
direct relevance, materiality,
probable admissibility of thematerial
discovered, which is not the standard
of discoverability in federal court and
is not supposed to be the standard of
discovery in state courts, will tend to
cut down on the scope of available dis?
covery to such a drastic extent that the
attempt to prove the violation out of
the defendant's own files cannot in
state court be worth 25 percent of its
value in federal court. Similar limita?
tions would similarly affect cases hav?
ing to do with struggles for corporate
control, tender offers, officer and
director malfeasance, and any other
business litigation requiring extensive
access to corporate records.
If there is diversity of citizenship
and the amount of controversy ex