Pleading: A Subject For Scientific Study?
| Date | 01 July 1949 |
| Published date | 01 July 1949 |
| DOI | http://doi.org/10.1111/j.1468-2230.1949.tb00128.x |
| Author | Chorley |
PLEADING
:
A
SUBJECT
FOR
SCIENTIFIC
STUDY
?
I
HAVE
recently had the pleasure of reading
a
leading American
textbook on the Law of Code Pleading' and this has led me to
some rather dismal reflections on the lack of interest in the vital
subject of pleading which has been displayed in this country almost
since the time
of
the Judicature Act,
1878.
Under the old strict
system of pleading at common law the slightest mistake might prove
fatal
to
the pleader's case, and the art of pleading was developed
to a very high standard.
It
produced
a
race of lawyers like
Parke
B.
who even
if
they could on occasion properly be described
as
'
pedants
'
by their more liberal brethren did much
to
develop
the common law on sound lines. The art was
of
course learned in
chambers and while
it
did not stimulate any great theoretical text-
book
it
did bring forth that masterpiece of practical wisdom and
profound legal scholarship
BdZrn~!+
Leake,
the third and best edition
of which is still highly prized. The special pleader was for long an
esteemed member of an important subbranch of the legal profes-
sion, and even after the first world war the names
of
several special
pleaders still appeared in the
Larw
List.
The price paid by litigants for the maintenance of this system
could not, however,
be
justified, and after some unsuccessful
experimentation
a
the Judicature Act,
1878,
introduced an entirely
new system, called in America
'
code pleading
'
from the fact that
the requirements
are
laid down in detail in a practice code. Under
this the courts are given complete discretion
to
cure mistakes
in
pleading by allowing amendments. This has been very liberally
exercised, and has undoubtedly resulted
in
a pronounced lowering
of standards. In my day at the Bar the number of junior barristers
in the Temple who were spoken
of
as really eminent pleaders
could
have been counted
on
the fingers of one hand, and
I
have reason
to suppose the figure has not swollen. The result of this liberal
allowance of amendments is an occasional adjournment with
consequent expense, but more often it leads only to some embarrass-
ment of counsel, and the case proceeds without too much extra
dif3culty.
It
might, therefore, be said with some show of justice
that apart from a certain
loss
of
artistry in pleading the present
system works adequately, that there is no need for concern about
the underlying principles,
if
any, and that the absence
of
discussion
need not call for comment.
1
Code
Pleading,
2
Charles
E.
Clark,
U.S.
Circuit
Judge:
and
ed.,
West
2
See
Holdsworth:
1
&mb.L.J.
(1993)
aB1.
819
Publishing
Co.,
t.
Peul,
Minn.,
1947.
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