Unfortunately in writing on the subject of practice and procedure there is little or no opportunity to indulge in attempts at anticipatory law. The writers of substantive topics may, on occasion, give a conning tower view of what should be the law and theorize on the progressive trend in various fields. However firm the trend may be toward simplification of practice and procedure, the facts only too well bear out the statement that pleading is statutory and rule-made law, and leaves to the courts very little ground for interpretive opinions. Also, all too frequently, the courts take occasion to use the more or less hidebound tenets of procedure to avoid a dubious decision on the merits of a case.
It is only common sense to understand that there must be logical regulations under which any action takes place, but such regulations become untenable when they are the guiding factors under which decisions arise. This situation is not so much the fault of the judges,' as that of the lawyers and those who make the law-,a firmly entrenched consciousness of the past and that anything propositioned upon precedent must be sound. It will be necessary for even more legislative action to correct this situation, although our legislatures of the past few years certainly have been heading in the right direction. Such legislative action and a liberal interpretation by the courts, within the bounds of propriety and logic, would go far toward making the result of a legal action a decision on the merits of the cause, and not the result of a carefully-played chess game between lawyers, with the ultimate leaving behind of right and justice.
Shulman, Arnold and Jackson, Joseph C.
"Practice and Procedure,"
Mercer Law Review: Vol. 3:
1, Article 18.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol3/iss1/18