The disappearance of civil trial in the United States.

• Author: Langbein, John H.
• Position: II. Equity: Nontrial and Non Jury Civil Procedure through Conclusion: Why Civil Trial Vanished, with footnotes, p. 538-572

2. EQUITY: NONTRIAL AND NON JURY CIVIL PROCEDURE

   Jury procedure made it awkward for common law courts to administer specific remedies, such as the injunction (cease this) or the decree of specific performance (do that). (68) Specific relief often requires continuing supervision and modification as circumstances change, (69) but a jury dissolves once it has delivered its verdict. Accordingly, the early common law courts largely confined themselves to awarding money damages (70) except in cases involving ownership or possession of real property. (71) But no society can long tolerate a legal system that lacks the power to grant specific remedies.

   The English solved this dilemma in the later fourteenth and fifteenth centuries by creating a second system of civil justice, which came to be called equity, and which was administered primarily (72) in a new court, the Court of Chancery, which employed nonjury procedures. The judge, called the chancellor, exercised the power to order specific relief, (73) based upon his power to imprison a person who disobeyed his decree. (74) The early chancellors were bishops. Having been keepers of ecclesiastical courts in their dioceses, they were experienced in Roman-canon civil procedure. (75 They patterned Chancery civil procedure on the Roman-canon model, although with many departures. (76)

   In a Chancery case, proceedings were discontinuous rather than concentrated; witness testimony was collected in closed sessions and reduced to writing rather than heard orally. (77) The chancellor based judgment on reading the evidence in the court file rather than hearing live testimony. Chancery developed the ability to handle multiparty and multi-issue litigation, (78) which the common law courts had been largely unable to entertain, (79) both for fear that such cases were too complex for jurors and because such cases did not fit within the bipolar pleading process.

   Beyond remedy law, Chancery's other great contribution to English civil procedure was to enable the use of witness testimony and documentary evidence. Because common law civil procedure took shape at a time when the supposition was that a jury from the vicinity of the events already knew the facts, the early common law developed virtually no means for investigating the facts. "The common law made no provision for the interrogation of adverse parties on oath as a means of proof," (80) nor for the examination of nonparty witnesses, nor for the production of a document not already in the possession of the party seeking it. Chancery, by contrast, drawing on the Roman-canon tradition, developed procedures that enabled a litigant (1) to obtain sworn responses from an opposing litigant; (81) (2) to require nonparty witnesses to answer interrogatories on oath; (82) and (3) to compel the production of relevant documents. (83)

   Thus, by early modern times, the English were operating two distinct civil procedure systems: the common law system, rooted in jury trial, and the supplementary system of equity, which employed nonjury and nontrial procedure. The common law courts had jurisdiction over most of the law of property and obligations. Even in those fields, however, a common law litigant had to bring a parallel action in Chancery, either to obtain documents needed in a common law trial, (84) or to enforce a common law judgment by means of an injunction or a decree of specific performance. Bringing that second lawsuit was costly: Sequencing the two actions was complex, (85) and because a litigant seeking discovery of documents was required to "describe them with reasonable certainty," (86) he had to know in advance what he was looking for.

   The Americans absorbed this dual system of civil procedure, with jury trial at common law and nonjury proceedings in equity. Some states, such as New York and Delaware, replicated the English system of separate courts of law and equity. In other states, notably Massachusetts and Pennsylvania, and in the federal courts, one court administered both systems with varying degrees of distinctness. (87)

   Dissatisfaction with the complexity and expense of running two distinct civil justice systems led, in the nineteenth century, to efforts to merge law and equity, notably the Field Code in New York in 1848, (88) and then to a series of legislative measures in England across the years from 1852 to 1875. (89) The American fusion movement culminated in the twentieth century with the Federal Rules of Civil Procedure.

3. THE FEDERAL RULES: THE PRETRIAL BECOMES THE NONTRIAL

   In the 1930s, the Americans began devising what became a new civil procedure system. This system is called pretrial procedure, in the sense of procedures whose purpose is to allow the litigants to prepare for trial, but that term is now a misnomer. The more candid term--in a system that takes only one or two percent of its cases to trial (90)--would be nontrial procedure.

   The precipitating event in the creation of this new system was the promulgation in 1938 of the Federal Rules of Civil Procedure. (91) The Federal Rules were devised for use in the federal courts, but most of the American states have chosen to emulate the Federal Rules, (92) with the result that the Federal Rules and state codes patterned on them now govern most civil litigation in the United States.

   The Federal Rules sound no clarion call for the suppression of trial. Far from it: Rule 38(a) declares that "[t]he right of trial by jury as declared by the Seventh Amendment" is to be "preserved to the parties inviolate." (93) What the Federal Rules have largely done, however, is to create conditions in which litigants have found it not in their interests to exercise that right.

   1. The Flight from Pleading

      By the early twentieth century, many observers had come to the view that pleading did not serve its ostensible notice-and-disclosure functions very well, because there were too many ways for an artful pleader to conceal or mislead. Edson Sunderland, a civil procedure scholar at the University of Michigan Law School whose central role in drafting the Federal Rules is discussed below, wrote in 1933: "[A] pleader may allege many things that he knows may not or cannot be proved .... The other party has no way of determining from the pleadings what facts will actually become the subjects of proof and what will be merely ignored at the trial." (94) Each pleader strains, Sunderland observed, "to give himself the widest freedom of action at the trial and at the same time convey as little information as possible to his adversary." (95)

      Responding to this view that pleading was structurally defective for the task of pretrial clarification, the drafters of the Federal Rules instituted two major and interconnected reforms. The Rules debased the pleading function, providing in Rule 8 for mere notice pleading ("a short and plain statement of the claim" (96)) that ceased to require the pleading of supporting facts. (97) As a functional substitute for pleading, (98) the Rules instituted a regime of broad pretrial discovery, discussed below, which derived to some extent from former equity practice.

      Pleading has long had a gatekeeping function, providing the defendant with an early-stage opportunity for dismissal of a case that fails to state a cause of action. Federal Rule 12(b) carried forward that principle. The U.S. Supreme Court has recently shown signs of discomfort with the minimalist pleading regime of Rule 8. In a pair of cases decided in 2007 and 2009, the Court has somewhat heightened the pleading standard by requiring the plaintiff to identify a plausible factual basis for the claim. (99)

   2. Party-Conducted Discovery: Overcoming the Investigation Deficit

      In Part I of this Article, discussing the origins of the pretrial/trial distinction, (100) I have emphasized the impoverishment of the investigative function in the pretrial process of the common law courts. A common law litigant had no means of compelling the production of documents, and no opportunity before trial to examine opposing parties or witnesses.

      Equity, by contrast, enabled a litigant to obtain discovery of documents; equitable pleading could be manipulated to obtain what amounted to sworn evidence from an opposing party; and interrogatories requiring sworn responses directed to nonparty witnesses were a staple of equitable procedure. (101) In equitable causes of action, these techniques of investigation were not pretrial procedures; rather, they were modes of investigation and proof for an adjudicative process in which there would be no trial in the common law sense--that is, no public proceeding for the oral examination and cross-examination of witnesses. Equity courts collected witness proofs in the form of written summaries of responses to party-propounded interrogatories. The judge decided a case in equity by examining those summaries and any documentary evidence, but not by hearing witnesses testify and be cross-examined at a concentrated trial. Thus, equity's techniques of investigation had been devised to serve nontrial procedure.

      It was long understood, however, that in the hands of a common law litigant, equity's investigative procedures could in some circumstances be made to function in a pretrial dimension, in what came to be known as equity's auxiliary jurisdiction. (102) As previously mentioned, a common law litigant could bring a parallel suit in equity, usually in the form of a bill of discovery, (103) for the purpose of compelling the production of a document important to the common law case. Equity also permitted a common law litigant to obtain a decree permitting the taking and preserving of witness testimony for a common law proceeding, in circumstances in which it was feared that the witness would be unavailable at the time of the trial on account of ill health or distance. (104)

      1. The Regime

         The drafters of the Federal Rules routinized the practice of using equity-derived investigative...