What Shall Be Done with the Practice of the Courts?

David Dudley Field, 1847

David Dudley Field was an attorney from a prominent New York family. His brother was Stephen J. Field, a U.S. Supreme Court justice. Field was a leading crusader for the codification movement. He attacked the rules of civil procedure of his time, which were based on English common-law pleading practices. Common-law pleading was an arcane practice filled with traps for the uninitiated that could result in the dismissal of the case on procedural grounds. Field's essay of 1847, "What Shall Be Done with the Practice of the Courts," presented his case for what is now known as code pleading.

As a member of the New York pleading and practice commission, Field prepared a civil procedure code that the legislature adopted in 1848. The code simplified the filing and prosecution of lawsuits. It was a significant improvement over common-law systems of procedure, in that it required that the complaint contain "a plain and concise statement of the facts constituting plaintiff's cause of action." The code used the pleading as a way of narrowing and defining the dispute rather than as a general means of initiating a civil action.

The Field Code was later adopted by Missouri, California, and many other states. In time, however, code pleading became very technical, requiring the pleader to set forth the facts underlying and demonstrating the existence of the cause of action. Matters were simplified in 1938, when the Federal Rules of Civil Procedure were adopted. Rule 8 (a) provides that the complaint shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Likewise, the defendant "shall state in short and plain terms" the defenses to the plaintiff's complaint. There is no requirement that facts be alleged.

In the twentieth century, the desire for codification led to the drafting of various sets of uniform laws, including the Uniform Commercial Code and the Uniform Probate Code.

What Shall Be Done with the Practice of the Courts?

The Constitution of this State [New York, 1846], which goes into effect to-day, will render great changes necessary in our system of legal procedure. It remodels our Courts; unites the administration of law and equity in the same tribunal; directs testimony to be taken in like manner in both classes of cases; abolishes the offices of Master and Examiner in Chancery, hitherto important parts of our equity system; and, finally, directs that the next Legislature shall provide for the appointment of three commissioners, "whose duty it shall be to revise, reform, simplify, and abridge the rules of practice, pleadings, forms, and proceedings of the courts of record," and report thereon to the Legislature for its action.

Important modifications of the equity practice are thus made indispensable, in order to adapt it to the new mode of taking testimony. But I think that the Convention intended, and that the people expect, much greater changes than these. We know that radical reform in legal proceedings has long been demanded by no inconsiderable number of the people; that a more determined agitation of the subject has been postponed by its friends, till such time as there should be a reorganization of the judicial establishment, upon the idea that a new system of procedure and a new system of Courts ought to come in together; that it was a prominent topic in the Convention itself, where its friends were in an undoubted majority; and that the manifestations of public sentiment out of doors were no less clear than were the sentiments of that body. Indeed, if now, after all that has been done within the last five years, there should be made only such changes as the Constitution absolutely commands, there will be great and general disappointment.

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Every consideration, as it seems to me, makes it expedient for us all now to enter heartily upon the work of amendment. Those of us who have long been laboring for a radical reformation of the law, and those who have felt less inclination for it, should find this an occasion to act together in the common pursuit of thorough and wise reforms. We feel the inconvenience of the present state of things. We know that the technicality and the drudgery of legal proceedings are discreditable to our profession. Justice is entangled in the net of forms.

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Believing, therefore, that great changes are inevitable in any event, and that this is a period favorable to the adoption of all the reforms which are really required, I wish it were possible to engage every member of the legal profession in the promotion of a wise, safe, and radical reform. Radical reform will come sooner or later, with us or without us. Shall we cooperate to make it at the same time wise and safe?

Such a reform, I am persuaded, should have in view nothing less than a uniform course of proceeding, in all cases, legal and equitable.

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What I propose, then, in respect to cases of legal cognizance, is this: that the present forms of action be abolished, and in their stead a complaint and answer required, each setting forth the real claim and defense of the parties. Such pleadings would be precisely similar to those proposed for equity cases, and we should thus have a uniform course of pleading for all cases, legal and equitable. The distinction between the two classes of cases is now merely a distinction in the forms of proceeding. The Court of Chancery has existed only in consequence of the narrow and fixed forms of the common law. If those forms had been abolished, and a natural procedure adopted, the course of the two Courts would long ago have been assimilated.

Let the plaintiff set forth his cause of action in his complaint briefly, in ordinary language, and without repetition; and let the defendant make his answer in the same way. Let each party verify his allegation by making oath that he believes it to be true. The complaint will then acquaint the defendant with the real charge, while the answer will inform the plaintiff of the real defense. The disputed facts will be sifted from the undisputed, and the parties will go to trial knowing what they have to answer. The plaintiff will state his case as he believes it, and as he expects to prove it. The defendant, on his part, will set forth what he believes and expects to establish, and he need set forth no more. He will not be likely to aver what he does not believe. His answer will disclose the whole of his defense, because he will not be allowed to prove anything which the answer does not contain. He will not be perplexed with questions of double pleading, nor shackled by ancient technical rules.

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The legitimate end of every administration of law is to do justice, with the least possible delay and expense. Every system of pleading is useful only as it tends to this end. This it can do but one of two ways: either by enabling the parties the better to prepare for trial, or by assisting the jury and the Court in judging the causes.

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If we adopt the plan of pleading which I propose, we shall save both time and expense. We shall avoid the risk of losing causes from mistaking the rules of pleading; and we take one step, and that a great one, toward introducing simplicity and directness into the machinery of the law.

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And is, indeed, the learning of the profession bound up with the system of common-law pleading? Is the noble science of jurisprudence—the fruit of the experience of ages, at once the monument and the record of civilization—inseparable from such paltry learning as that, "after the declaration, the parties must at each stage demur, or plead by way of traverse, or by way of confession and avoidance," or that "upon a traverse issue must be tendered," or anything of that sort? Lawyers have enough to learn if their studies are confined to useful knowledge. To assert that the great body of the law, civil and criminal—the law which defines rights and punishes crimes; the law which regulates the proprietorship, the enjoyment, and the transmission of property in all its forms; which explains the nature and the obligations of contracts through all their changes; the law that prevails equally on the sea and the land; the law that is enforced in courts of chancery and courts of admiralty, as well as in the courts of common law—to assert that this vast body of law requires the aid of that small portion which regulates the written statement of the parties in the courts of common law, is to assert a monstrous paradox, fitter for ridicule than for argument.