Getting Justice without Adjudicators

When we hear the word "trial," most of us imagine a courtroom with a judge sitting on the bench and twelve jurors sitting in the box deciding who will win the case.

The judge's function under modern law is to preside over the case and make rulings on the applicable law. The jury's duty is limited to determining, through their verdict for the plaintiff or the defendant, what the facts are in the matter. If a jury has been waived by the parties, the judge then determines the facts and reaches the verdict.


Ruling on law includes determining questions of validity of pleadings (the papers filed by each side, such as complaint, demurrer, or answer); admissibility of evidence; propriety of questions asked witnesses by the lawyers; ruling on motions; and giving instructions to the jury so that they understand their function and know how to perform their duties. Most people who have served on juries do not realize that the lawyers in the case draw up proposed instructions, and after a conference
with these lawyers, the judge decides which instructions to give.

Determination of facts is done by evaluation of testimony of witnesses and analysis of evidence presented.

Great care is taken when a jury is picked to make sure that the jurors have no knowledge of either the parties or the facts of the case. If the judge has any connection with the parties or the lawyers, either by relationship or business dealings, he or she must disqualify (recuse) himself or herself and have another judge assigned to preside over the matter. The basic idea is to remove any possible bias or prejudice from the trial.

This was not always the way things were done. In the very early days of the common law there were two types of trials: trial by ordeal and trial by oath or compurgators.

Trial by ordeal was based on religious beliefs originating in tribal practices. It is hard for us to realize that, before the Norman Conquest in 1066, what is now England was largely divided up among many little tribes, each controlling its own small territory. Their antecedents went back to ancient Norse and Germanic societies—Vikings, Danes, Angles, Saxons, Jutes—and customs which had continued for many years. Trial by ordeal was used primarily in criminal cases. Testimony was given against the accused. Denial of commission of the crime was made. The factual issue was settled through some form of torture. If the accused survived, acquittal resulted. Blackstone describes this form of trial in IV Commentaries, Chapter XXVII, page 342:

The most ancient species of trial was that by ordeal. This was of two sorts, either fire-ordeal, or water-ordeal; the former being confined to persons of higher rank, the latter to the common people. Both of these might be performed by a deputy; but the principal was to answer for the success of the trial; the deputy only venturing some corporeal pain, for hire, or perhaps for friendship.

Fire-ordeal was performed either by taking up, in the hand, unhurt, a piece of red-hot iron, of one, two, or three pounds weight; or else by walking barefoot, and blindfold, over nine red-hot ploughshares, laid lengthwise at unequal distances; and if the party escaped being hurt, he was adjudged innocent; but if it happened otherwise, as without collusion it usually did, he was then condemned as guilty. However, by the latter method Queen Emma, the mother of Edward the Confessor, is mentioned to have cleared her character, when suspected of familiarity with Alwyn bishop of Winchester.

Water-ordeal was performed, either by plunging the bare arm up to the elbow in boiling water and escaping unhurt thereby; or by casting the person suspect into a river or pond of cold water; and if he floated therein without any action of swimming, it was deemed an evidence of his guilt; but if he sunk, he was acquitted.

The old colonial ducking stool, which you may have read about in grammar school, was a vestige of this ancient practice.
In civil cases, one of the ancient forms of trial was trial by oath, also known as trial by wager of oath, or trial by compurgators. The defendant came into court and denied the charge (usually that he owed money) under oath. Even if there was no other evidence, if he could bring to court twelve neighbors, called "compurgators," who swore that they believed him, the case was dismissed.

The Normans brought an interesting type of trial from the continent, trial by battle. Initially, the parties themselves battled hand to hand in front of the king and assembled dignitaries of the court. Later, the system was altered to permit first the defendant, and then the plaintiff, each to have a substitute do the fighting for them. Well-known knights hired themselves out as champions for litigants. Lawyers drew the pleadings; knights fought the "battle," generally one on each side. You are surely familiar with movie scenes where the king and his courtiers sit on a field and watch opposing knights fight each other. Occasionally, these jousts were lawsuits being tried before the court. The groups of knights who worked together were really the trial law firms of the day.

The overtones of this system still continue in England today, where lawyers called solicitors take care of the paperwork law, and lawyers called barristers actually go into court and try the cases. It is fun to speculate that perhaps when the Blue Medallion Knights helped some beautiful golden-tressed maiden confined to an isolated ivory tower by her cruel guardian, they were really just lawyers taking a case on a contingency basis, and if they won at the jousts, their firm got a percentage of her estate and the junior partner married the girl he had so successfully championed.

Another custom the Normans brought with them was used to decide boundary questions. The king's representative and twelve long-time property owners of the neighborhood, accompanied by the quarreling landowners, rode around the perimeter of the disputed area, listened to the explanations and arguments of the respective proprietors, and then reached a decision as to where the correct line was. We possibly get our twelve jurors from the occasional use of twelve boundary riders, or perhaps from the twelve compurgators; the lawyers from the knights combatant; and the judges from, first, the king, then later from the judges he appointed to travel the kingdom on a more regular basis.

If you read something on the life of Abraham Lincoln you will find that, in his day, the courts of the state went on periodic circuits, with judge and lawyers traveling around to try the cases coming up for the term. And as you study your cases for this period, you will find that a number of them raise procedural questions relating to the effects of events occurring during one term on a case tried at a later term. This was also true in the federal courts. Today, each United States Supreme Court justice is still considered the justice responsible for all matters in one of the appellate circuits.

Basically, the jury is a part of the "law," as opposed to the "equity" side of the justice process. This was true from ancient days when "law" covered criminal prosecutions and civil suits for money damages. The jury's determination of the facts concluded the case. (Keep in mind that, in any case where a jury trial is required, it may be waived if all parties agree [stipulate] to the waiver.)

On the equity side, a jury was not used unless the judge wanted it to make some factual determination for him. In those cases, however, the judge made the final determination of the result of the case. This is still true today. Equity matters are generally referred to as "proceedings." Today, a judge sitting without a jury issues various writs ordering people to do or refrain from doing certain things. Probate of wills and administration of decedent estates, trusts, and guardianships are all nonjury proceedings. Bankruptcy is another. One of the largest volume-generating nonjury areas is in the field of administrative law. More and more, our daily lives are governed by the rules, regulations and decisions of administrative agencies.

Suppose, for instance, a homeowner wants to convert her garage into another bedroom. The county planning officer says she cannot do it because of a particular interpretation of the zoning ordinance. Her appeals to the planning commission, and from there to the county Board of Supervisors, are administrative proceedings. Hearings are held where evidence is taken, legal arguments are made, and a decision is issued.

A police captain in a large city refuses to issue a permit to carry a gun to a store owner in the precinct. The owner appeals to the Police Commission. Administrative proceeding.

The State Board of Cosmetology wants to revoke the license of a beauty shop because the combs are used on different customers without being sanitized before each new use. Another administrative proceeding.

Underlying all administrative proceedings is the basic theme that the officials and bureaucrats, who have been delegated power to regulate certain activities by the legislative body of some level of government, should not be allowed to reign unchecked. The public protection against abuse of discretion is the administrative hearing and subsequent appeal to the courts.

An administrative agency may consist of one person (aided by supporting staff) whose decisions are final, such as the Secretary of the Interior or the Director of Motor Vehicles; or a group of people making up a board or commission, such as a State Board of Medical Examiners or a City Planning Council. Administrative agencies usually have only the power that the legislative body has delegated to them. If they act in excess of that power, they have exceeded their jurisdiction. These agencies customarily interpret and exercise their power by issuing rules and regulations governing their operations. Before these rules or regulations become final, an agency is generally required to give public notice of its intent to proclaim them and to hold a hearing permitting public input into the subject under consideration.

In the federal system, and in most states, a petition may be brought in court to prevent a rule or regulation taking effect. A writ may be issued setting a date for a court hearing and ordering the agency to refrain from effectuating the proposed change unless it can "show cause" why it should not do so. The agency files a document responding to the allegations of the writ; legal arguments are heard from both sides, and a decision is issued. This, too, is a nonjury proceeding.

If someone applies for a license and is turned down, a hearing may be provided for. It is always required if an agency wants to take away or interfere with some vested right.

The hearing privilege may be waived. The waiver can be express, or by default. That is, the individual may say, "I don't want a hearing," or may fail to apply for one in the manner and within the time required by the statutes of the jurisdiction.
Often, people will try to bypass some or all of the administrative procedural steps and go directly to court. This is normally not permitted because of the doctrine of exhaustion of administrative remedies. The courts do not want to be cluttered up with cases that really are not final.

Let us suppose that the holder of a physician's license is convicted of some crime involving illegal prescribing of narcotics. Under the procedure in this particular state, the secretary of the Board of Medical Examiners files an accusation against the doctor before the Board, setting forth the charges and requesting that the license be revoked. The licensee files a document denying the charges. The matter is set for a hearing before an administrative law judge who may be employed by the Board or assigned from an independent panel to hear the case. Evidence is presented by each side. After the hearing, the administrative law judge writes a proposed decision which is submitted to the Board for its approval. If the Board accepts it, this becomes the Board's final decision, which is then subject to appeal through the courts.

If the Board does not like the decision, it rejects it. Under that circumstance, in most jurisdictions, it may rehear the case itself; or it may read a copy of the reporter's transcript and study the physical and documentary evidence introduced at the hearing. It may then send the case back to the hearing officer with instructions to take additional evidence, or it may issue its own final decision. Because administrative proceedings may take quite some time, the licensee would probably try to get a court to issue a writ to the agency staying revocation of the license until the final decision has gone through the entire court appellate process.

In a criminal trial, the prosecutor's job is to convince judge or jury of the defendant's guilt "beyond a reasonable doubt." In civil cases, the burden of proof is on the plaintiff to convince the trier of fact by a "preponderance of the evidence." This burden is much lighter and means that there just has to be a little more evidence in favor of the plaintiff. Administrative proceedings are not criminal cases. The preponderance rule is applied. The burden of proof is on the applicant in a licensing case; it is on the agency in a revocation case. In these nonjury, administrative hearings, matters usually proceed much more informally than in regular court cases. Persons often represent themselves. The normal rules of evidence are relaxed, and hearsay evidence (testimony as to what someone who is not present said) is admitted.

If administrative law is only an elective course at your law school, take it anyway. It is an extremely important part of the volume of business in a big law firm, and can be extremely rewarding in an independent practice.