The Elimination of Surprise in Federal Practice

There are occasions when in the interest of clarity of thought it behooves us to get back to first principles. When brought back to mind, these principles appear simple and obvious, but so much of our life's work is devoted to details that the tendency is for the trees to obscure the view of the forest, unless we stop at intervals and refresh ourselves by recalling fundamentals. The courts exist for the purpose of administering justice. The objective of a law suit is to determine a controversy between man and man by ascertaining the facts, finding the governing principles of law, and applying them to the facts.

At common law there developed what is known as the adversary system of litigation. The merits of a controversy are determined by the presentation of facts and arguments on the law by counsel, who are partisans on behalf of the parties whom they represent. The judge, or the judge and jury, as the case may be, reach their conclusions from the partisan presentations.