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27 Judge Advoc. J. 1 (1958)

handle is hein.journals/jajrnl29 and id is 1 raw text is: CUM HONORE OFFICIUM By Robert W. Stayton** During the year our journals, as though asserting an ideal, have been submitting to the bar what is called A Hippocratic Oath for Lawyers. Its authorship is credited to an esteemed justice of New York. The writer considers that, in prin- ciple as well as in detail, the pro- posed undertaking would be contrary to professional obligation. Stating here the reasons for his opinion, he does not have the idea that any one of them is novel. The oath would bind the advocate to join with his adversary in conced-' ing undisputed facts; in waiving juries when the course will not sacrifice fundamental rights; in neither offering nor opposing inter- locutory motions unless of real, prac- tical importance; in avoiding merely technical objections to testimony; in securing prompt, speedy and com- plete presentation of the facts; in supporting fair comments and rea- sonable instructions by the judge on the facts; and in avoiding appeals except in cases of substantial error and reasonable prospect of different outcome on retrial. To say nothing of the particular engagements involved in the oath, the substance of them is that prac- titioners should agree to use no tac- tics of technicality, obstruction or delay. Thus expressed, the ends de- sired are surely good one3. Whether under the prevailing American sys- tem for trying civil and criminal cases counsel should or could bind himself to the suggested means to the ends, is a different subject. Whether the prevailing system should be materially changed is also different. The prevailing system is the ad- versary one. It is based on the right to hearing in open court, with the benefit of counsel, by due process of law. In this era it is being opposed, though not, one would as- sume, by men like the author of this oath. Those who oppose it seem in prominent instances to be of a some- what different calling; and seem to be comparing the operation of cases in court with the speedy, accurate and effective administration of con- stitutional and statutory powers by executive and administrative bodies. But the view there and here are different. There it is toward needed governmental results, here toward the preservation of liberty. The primary purpose there is to obtain results on the basis of the truth. The primary purpose of the ad- versary system is to preserve liberty and with that burden to find and act upon the truth as nearly as may * Reprinted by permission of the State Bar of Texas and the author. This article appeared in Texas Bar Journal, Volume 19, Number 11 at pages 765 et seq., December 22, 1956. ** The author is a distinguished professor of law at the University of Texas where he has taught since 1925. A member of the bar for more than 50 years, Judge Stayton's career has embraced the practice of law, judicial office and the teaching of law. He is recognized as an authority on civil practice and procedure.

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