N.J. Constitutional Convention: Vol. 4, Page 420

Thursday, July 10, 1947 (Morning session)

says that I always answer, "We pay no attention to pleadings; all we want to do is to see that the party shall not be surprised and have adequate time to present what he has to say. If you have that, we don't care what you plead; we don't pay any attention to your pleading. Please don't argue that."

Now, I don't think that - of course, that's rather radical stuff - I don't know whether that has resulted in confusion, or perhaps I shouldn't know whether it had or not. I haven't observed.

MR. DIXON: Thank you.

MR. WALTER G. WINNE: Judge Hand, is there only one federal judge in many districts today?

JUDGE HAND: Yes, in a good many.

MR. WINNE: And, of course, going back to 1909, there were a great many more.

JUDGE HAND: Oh, yes - a great many less.

MR. WINNE: A great many more districts where there was only one federal judge?

JUDGE HAND: Oh, yes.

MR. WINNE: Probably New Jersey only had one federal judge in 1909.

JUDGE HAND: I think -

MR. WINNE: Well, I am not sure, but historically that may be one reason why federal judges have both equity and law jurisdiction, because he was the only one.

JUDGE HAND: I hadn't thought of it, but I think that undoubtedly was it.

MR. WINNE: And may I also suggest that in this State a great many lawyers very active in the state courts have very little experience in the federal courts, and it would not be unusual for a federal writ to come into a lawyer's office and that lawyer not know, if it were a suit, let us say, for damages in a negligence case, that he didn't get this trial by jury unless he demanded it. He would think immediately that he had a right to trial by jury - would never dream he had to demand it, unless he was familiar with the rules.

JUDGE HAND: Oh, yes.

MR. WINNE: And I imagine a great many people have lost the right, which they thought they had, to trial by jury, because they had never before had a federal case and failed to demand a jury trial.

JUDGE HAND: That might be quite so, but of course, I can't possibly answer that.

VICE-CHAIRMAN: A witness testified yesterday that a proceeding in a federal court was dismissed on the ground that the plaintiff had pursued the wrong theory of action. Is there any basis for that today in the federal court system?

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