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Under the new federal rules a trial becomes more an orderly search for truth, less a tournament of wits. Key to the new system is the pretrial setup, which permits the free use of depositions, interrogatories, inspections and examinations, all aimed at finding the facts on which the litigants are agreed and at defining the areas of disagreement. At the pretrial conference both plaintiff and defendant state what they expect to prove in the trial, thus eliminating tricky surprise. The judge dictates a pretrial order that supersedes the original pleadings and defines the questions at issue between the parties. Says Vanderbilt: "No longer does the trial judge have to fumble through the pleadings at the trial to find out what the case is all about ... He has before him in a pretrial-conference order a complete outline of the course that the trial will take; he is master of the situation from the outset to the conclusion of the trial."
As used in Judge Vanderbilt's New Jersey, the pretrial conference has shortened trials by from a third to a half. Vanderbilt notes—and condemns—the tendency of judges in some jurisdictions to use the conference to force settlements, but he contends that even without such coercion three out of four cases are settled soon after the pretrial conferences. Reason: the conference gives each litigant knowledge of his own weakness and his adversary's strength.
Vanderbilt says that with the various pretrial procedures at a judge's disposal there is no reason why, having also heard the evidence and the arguments at the trial, he cannot make his decision at once in cases without a jury. Says Vanderbilt: "He will never know more about it than he does at that time. The moment for decision has arrived, before other cases intervene to dull and blur his grasp of the pending case."
Then Vanderbilt adds: "How often have you and I known judges burdened with so many undecided matters that they were exhausting their intellectual effort in determining which case to dispose of first and devoting what little strength they had left to telling all and sundry how overworked they were?"
DELAYS THROUGH MISMANAGEMENT
"So far as I know," says Vanderbilt, "the courts are the only nationwide or statewide businesses that have ever attempted to function without any administrative machinery." The federal judiciary was dependent on the chief litigant in its courts—the Justice Department—for the conduct of all its business affairs, from buying pencils to presenting the judicial budget to Congress, until a 1939 law improved efficiency in the federal courts by setting up an administrative office.
Mismanagement, or rather nonmanagement, of the states' judicial systems is the main reason for delay in the courts. In Queens County, N.Y., for example, it now takes 49 months for a jury case to come to trial in the state courts. Justice so long delayed can mean justice denied, as litigants die and witnesses disappear.