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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
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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