History, Systems and Functions of Pleading

Abstract

Before any dispute can be adjusted or decided it is necessary to ascertain the actual points at issue between the disputants. Conceivably this may be done in several ways. Perhaps the simplest is a process of direct questioning of the parties by the arbitrator or judge. Another method is the exchange of written statements in advance of a direct hearing of the parties. Under our Anglo-American system of legal procedure we are committed by tradition and history, by present practice and, probably, by general inclination, except in exceptional cases, to the latter method. Our system calls for the development of issues by the parties themselves in formal manner in advance of the actual trial. This is accomplished by requiring the serving on the opposing party or the filing in court alternately by the parties of pleadings - written instruments wherein are set forth the statements and contentions of each as to the points and facts in dispute. These pleadings are to be distinguished from the lawyer's oral argument or "plea" made to the court or jury at the trial of the case. Originally tinder the common law system the pleadings were oral, but for several centuries they have been written and have become technical legal documents, carefully framed by the attorneys of the parties. The content of these documents and the manner in which they are to be employed in the litigation have become the subject of rules in general of a highly refined nature. Pleading is the name given to the legal science which deals with these rules.