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assigned for each week of the session. Each department sits every alternate week. The briefs for each week are distributed among the judges Thursday or Friday of the preceding week, and every judge reads the briefs in each of the cases falling to the department of which he is a member before the arguments and tentative decisions, whether the cases are orally argued or not. At the close of each day, when the arguments have been concluded, the six cases submitted for that day are taken up for consultation, discussion tentative decision, and assignment for opinions. reaching this tentative decision, the transcripts and abstracts of record not examined. In this consultation,
cases are disposed of so far as possible upon the briefs and oral arguments alone. Many of the cases are disposed of in this way, except that in every case, the abstracts of record, and, if necessary, the statement of facts and transcript, are examined to verify the statements contained in the briefs by a reference thereto, and whereever there is any disagreement of counsel as to what the record contains. In a large number of cases, however, no definite opinion can be reached from the briefs and arguments alone. These are assigned for examination. The judge to whom such an assignment is made again reads the briefs, examines the abstracts of record, and, if necessary, the transcript and statement of facts and the authorities cited, and consults informally with the other members of his department. If there is any disagreement or difference of opinion, each member of the department examines the record and the authorities to his own satisfaction. By this means, an agreement as to the proper disposition of the case is usually reached.
While what is deemed a proper disposition of many of the cases is reached in the daily and subsequent informal consultations, the conclusion so reached is not final until an opinion has been prepared and signed by a majority of the department, or, if the case be one heard en banc, by a majority of the entire court. If, in the preparation of the opinion, the judge to whom a given case is assigned reached a conclusion at variance with that arrived at in the consultation, he is expected to report that fact to the other members who heard the case, and a further consultation is held. If, on further consultation, a majority of the department still adheres to the original conclusion, the case is reassigned to some member who holds with the majority, and an opinion is prepared accordingly. If a majority conclude that the result reached by the member to whom the case was originally assigned is correct, the opinion is written in accordance with that view.
After an opinion has been prepared and signed by the judge to whom the case is assigned, it is passed on to another member of the department. If he concurs in the decision and approves of the opinion, he signs it and passes it on to the next, the opinion
reaching the chief justice last. As I have already indicated it is also passed to, read, and checked by every member of the other department. If any member of the department which heard the case dissents from the opinion, he either withholds his signature, marking the opinion passed by him, or, if he so desires, prepares a dissenting opinion. If any member of the department concurs in the conclusion, but disapproves of the language used, or the reasons assigned, he takes the matter up with the judge who prepared the opinion, and, if necessary, further consultation is had. When the opinion has been concurred in and signed by a majority of the department which heard the case, the chief justice files it with the clerk. If any member of the department which heard the case does not concur in, or in terms, dissent from, an opinion filed, it may be for any one of a variety of reasons. It may be because he dissents and does not care to express that dissent, or because he does not concur in the reasons assigned for the decision, or does not approve of the language used, or because he was disqualified and did not participate in the hearing, or because he was absent when the opinion was filed.
Cases submitted on briefs are passed upon by consultation at the close of the day upon which they appear upon the docket for hearing. They are decided and assigned in their regular turn, and the opinions thereon prepared in the same manner as in argued
Cases of peculiar importance, cases in which petitions for hearing by the court en banc have been granted, and cases in which three members of the department to which the case was assigned request a rehearing are set down for hearing by the court en banc, and heard upon some day of each term which is set apart by the chief justice as en banc day. Such cases are heard and disposed of by the entire court in the same manner as cases heard by the departments are disposed of by its members.
Friday of each week during sessions is motion day; also the last Friday of each month when the court is not in session, excepting the months of July and August. On these motion days, motions and applications for extraordinary writs are heard. Immediately after hearing, they are disposed of in much the same manner as cases heard regularly on appeal. If they involve questions of practice, upon which the court has definitely expressed itself, they are granted or denied without written opinions; otherwise they are assigned and disposed of as other cases.
Each judge has a bar docket with the names of the judges of his department written at the top of the fly leaf. The cases are assigned to the several judges in rotation in the order in which they appear upon the calendar. Each judge places the number of the under the
of the judge to whom it is
signed. Each judge takes his chances in this respect as the litigants do. If the judge to whom a case would fall is, for any reason disqualified or does not concur in the views of the majority, the case is assigned to the next judge on the list who is qualified and concurs in the majority view. Since the chief justice sits with each department in all hearings, it is obvious that during the sessions of the court he has little time for the writing of opinions. He therefore receives only half as many assignments as are given to each of the other judges. The names of the judges for the purpose of receiving assignments are shifted each one column to the right at the commencement of each session, the last name on the list for the prior term being placed first for the current term.
Your committee has asked that I call particular attention to the manner of disposing of petitions for rehearing. In that matter there has been a radical change in the past three years. These petitions used to be examined by the individual judges from time to time, at their leisure. As the business of the court increased, and especially after the court was divided into departments, this method was found very unsatisfactory, often resulting in unnecessary delay so that the petition was sometimes not passed upon while the questions involved were fresh in the minds of the judges. Since the petitions sometimes require a re-examination of the record and of the authorities, the press of current work, especially during the sessions of the court, makes the work somewhat irksome, so that what was everybody's business, and only when he chose to make it so, was nobody's business at any particular time. Some change was man ifestly imperative. The plan now in operation insures the same regular and exact attention which is accorded to the hearing of the cases in the first instance. It is this:
As soon as the petition for rehearing is filed, the clerk of the court attaches to it a slip with a memorandum at the top, showing the volume and page where the opinion is reported in the advance sheets of the Washington Decisions, the name of the judge who prepared the opinion, and the names of those who concurred in it. Beneath this are three columns, headed, respectively, "Grant," "Call for Answer" and "Deny." The petition, with this slip attached, is immediately placed upon the desk of the judge who prepared the opinion. At the earliest opportunity, that judge examines the petition for rehearing, and, if necessary, re-examines the record and examines any additional authorities cited. He then signs either to grant, call for an answer, or deny the petition, according to the result of his investigation, noting on the slip, if he so desires, the result of his · re-examination of the record or the authorities. The petition is immediately passed to another judge, who, after a similar examination, either signs to grant, call for an answer or deny, and so on until the petition has passed the examination of every one of the nine judges. No distinction is made in this regard between the peti tions for rehearing before a department and petitions for hearing en banc. All of the judges pass upon every petition. If any judge entertains a doubt as to the correctness of the decision, a consultation is called for. Under the act of 1909, any four judges may, either before or after a decision by a department, order a cause to be heard en banc. After a decision en banc, not on rehearing, the signatures of five judges are required to deny a petition for rehearing. When a decision has been made by a department, the chief justice and any two judges of the department may order a rehearing en banc. It will thus be seen that, under the present method, the petitions for rehearing receive the same immediate and careful attention that is given to the hearing of the cause in the first instance, thus obviating the delays which the old method invited.
Your committee has also requested that something be said touching the necessity and usefulness to the court of the abstract of record required by the act of 1913. I have hesitated to say anything on this subject because of the difference in attitude taken toward the law by different members of the bar according to the individual point of view. The law, as yet, has hardly had a fair trial for the reason that. many of the appeals heard since its passage were initiated prior to its enactment. We have, however, seen enough of its actual operation to convince the court that the abstract of record will prove of great aid in facilitating the court's work, and making that work more thorough. From what I have said touching the consideration of cases and the preparation of opinions, the utility of a properly prepared abstract has doubtless already suggested itself to your minds. It offers the surest antidote that has yet been suggested to the deplorable tendency to one-man decisions by your supreme court, invited, not to say necessitated, by the old system. Under the old method, as pointed out by Judge Rudkin, in the paper to which I have referred, it was a physical impossibility for each member of the court to investigate with any degree of thoroughness the lengthy record, often burdened with immaterial matter, in every case in which he participated. Each of the other judges was almost of necessity compelled to rely largely upon the brief statement of facts of the case as presented in the opinion of the judge to whom the record was assigned for examination. Owing to the large number of cases assigned to each judge in the course of the year's work, and the consequent limited time which he can devote to any given case, it was not always certain that he was able to sift all of the material from the immaterial in records sometimes comprising hundreds of pages and numerous exhibits, so as to segregate and duly appreciate every determinative fact in the case. The abstract of record not only greatly facilitates the examination of the case by the judge to whom it is assigned, but offers an easy means of independent examination
by every judge who participated in the hearing, thus inviting rather than discouraging that complete participation in the entire work of the court which ought to be the aim of each of its members. It enables the court to dispose of work not only with a great saving of time and useless labor, but much more thoroughly than was possible under the old practice.
There is another advantage worthy of notice. The very preparation of the abstract tends to a more thorough digesting of his case by the attorney who presents it. This is reffected in his brief, and in his argument. It tends to clearer statement and a development of homogenous theory of the
Of course it entails more labor upon the attorney, but it also tends to insure better service for his client. As the uses and purposes of the abstract become better appreciated, it should add little to the cost of litigation. It should shorten the briefs by inducing a more succinct statement and a more orderly discussion of the evidence.
I have frequently talked with other members of the court touching this subject, and not one of them has expressed a desire to return to the old practice. All believe that a repeal of the law would - be a serious mistake. We are at one, however, in the belief that our present rules in aid of this law require too many copies of the abstract. Five copies, one for each judge of the department, would meet the full purpose of the law.
One further thing I desire to call to your attention, and that is the fact that, in preparing briefs, it is always an advantage to cover the case in as small a compass as can be accomplished with thoroughness. This is apparent from what I have said as to the manner in which the court arrives at a tentative decision. That tentative decision is, of course, necessarily based upon the briefs and the oral argument. The briefs should, therefore, contain a clear and concise statement of the facts, a clear and concise statement of the points relied upon, and a clear and concise statement of the law as sustained by the authorities cited. It is well, on each point of law, to incorporate in the brief a quotation from the authority mainly relied upon touching the given point, and then cite thereafter the other authorities sustaining the text of that decision. Repetition should be avoided as much as possible since the court, in arriving at the tentative decision, finds much greater aid in a single clear statement than in many repetitions. The effectiveness of the brief depends upon its adaptability to two purposes: first, to enable the court more easily to arrive at the tentative decision immediately after argument or submission of the case, and, second, to enable the judge to whom the cause is assigned to investigate the facts and the authorities in the shortest time and with the least amount of unnecessary labor. The brief statement and the citation of the authorities directly in point is best calculated to meet both of these