N.J. Constitutional Convention: Vol. 4, Page 47

It's right in the trial court that you need the experts; the legal principles can be settled easily enough in the Court of Appeals. But meanwhile, if the man below is not an expert, a lot of little things in the trial are barred and perhaps can never be really cured.

I think in the federal courts an almost intolerable burden is put on those judges who are handling ordinary negligence cases, ordinary equity cases, administration of bankruptcy - a horrible burden is put on them. I don't know, but I think in some of the federal districts where they have more than one judge they more or less do try to escape from the situation which they are in.

Now, you will see Article IV, paragraph 6, what I call here the Appellate Courts, that is three Justices sitting together to hear appeals from lower courts and from municipal bodies, or from such interlocutory orders as the rule-making power may decide should be reviewed. I don't think there is any argument on that.

We come to the rule-making body, and I do want to say a word on that. Where this draft differs markedly from the 1944 proposal is that the draft proposed that the rule-making power should be in the Court of Appeals. We have, therefore, adopted for the Rules Commission1 See Section IV, paragraph 10, page 40. the plan that was taken from the English Judicature Act, which calls for a Rules Commission consisting of the Chancellor, the Chief Justice, the Senior Justice of Appeal, four Justices of the Supreme Court and two counselors-at-law. Now, that was taken from the English and the value of it, I think, was found right there.

Ladies and gentlemen, I have been practicing law since 1911 and we have never had a single advance in our rules except the two that were put in by the Legislature in 1912 and 1915. The Practice Act of 1912 and the Practice Act of 1915 set up a schedule of rules and made material changes in the practice. The rules are subject to change by the Supreme Court and by the Court of Chancery, and they have been improved upon; but there has been no advance, no material overhauling of the practice in either court, except by those two changes which I think were spark-plugged by the Legislature. Now, we propose a Rules Committee which contains two practicing lawyers and I feel they might spark-plug the Committee and stir it to action. They have been so successful over in England that I think it is worth paying attention to.

MR. EDWARD A. McGRATH: Mr. McCarter, what proof have you got that it has been so successful?

MR. McCARTER: Proof, sir? Just the general opinion of lawyers, and I have never heard anything said to the contrary. I have read their rules and they seem to be extremely up-to-date, extremely liberal, and they give you the greatest opportunity to do things you want to do. None of this shifting from court to court


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