NA TURE 



289 



SCIENTIFIC ASSESSORS IN COURTS OF 

 JUSTICE. 



PUBLIC attention has lately been called, by various 

 incidents, to the system under which the trial of 

 scientific cases, and especially those in which the respec- 

 tive rights of rival inventors are involved, is at present 

 conducted in courts of justice. Last week Mr. Justice 

 Kay decided a case in which the Edison-Swan United 

 Electric Company were plaintiffs, which lasted twenty-one 

 whole days, or about one-tenth of the legal year ; and it is 

 possible that it may occupy very much more time in the 

 Court of Appeal, where every day is equivalent to three 

 days in ordinary courts, because three judges sit here, and 

 again in the House of Lords, if the litigants decide to 

 proceed to extremities, as they very frequently do in cases 

 of this magnitude and importance. At the same time, Mr, 

 Justice Kekewich was engaged in trying another large 

 electric patent case ; the Court of Appeal had a similar case 

 occupying it for several days, in the course of which Lord 

 Justice Cotton, who presided, animadverted in somewhat 

 severe terms on the length to which such cases are 

 allowed to run. His Lordship, with the concurrence of 

 the two Lords Justices who sat with him, attributed this to 

 the manner in which counsel spun out their arguments, 

 and urged more brevity and conciseness. Whatever may 

 have been the circumstances in the case to which the 

 Lord Justice adverted, it is certain that the addresses of the 

 eminent counsel engaged in the Edison-Swan case were 

 not responsible for the twenty-one days which it occupied 

 before Mr. Justice Kay — not including seven or eight 

 days for experiments ; — by far the greater part of this time 

 was occupied in hearing the contradictory and conflicting 

 evidence of a score of scientific men, many of the greatest 

 eminence, on the points in dispute between the parties. 

 With these points we have absolutely nothing to do here. 

 It is sufficient to say that the case involved the investiga- 

 tion and decision of matters of the utmost complexity 

 respecting the applications of recent electrical discoveries 

 to lighting, and also some obscure questions in the 

 history of these applications. All these exceedingly com- 

 plicated and difficult questions were tried before an 

 eminent judge, who, as he said himself at the commence- 

 ment of his judgment, " has not had the requisite 

 scientific training." It was, in fact, necessary to begin by 

 instructing the judge in the elements of electrical science ; 

 the propositions which scientific men accept as truisms, 

 or as common knowledge in discussions amongst them- 

 selves, had here to be gone over ab initio in order to 

 inform the judge's mind respecting the A B C of the j 

 problem which he had to solve. As to Mr. Justice Kay's 

 success in the task of acquiring this information, we are 

 quite willing to accept the opinion of one of the leading 

 electrical papers, which says that '"the manner in which 

 the judge grasped the bearing of the technical evidence 

 has been the subject of remark amongst everyone present 

 in court.'' 



We have no doubt that a judge, with his trained 



and experienced mind, would make a very apt pupil ; but 



the process of obtaining knowledge, even in such cases, 



is not always a very smooth or pleasant one. It is trying 



Vol. xxxviii.— No. 978. 



to the calmest and most equable mind to be compelled 

 constantly to reconsider information acquired with 

 care and difficulty, to find the views inculcated by 

 one eminent man of science totally contradicted by 

 another equally eminent. It is not surprising that 

 in the maze of conflicting opinions Mr. Justice Kay 

 was unable of his own knowledge to find his way. 

 We reproduced a painful incident in our columns at 

 the time it occurred, with the view of exhibiting to our 

 readers one of the evils of the present system for trying 

 complicated cases, although the circumstance that the 

 case was then sub judice precluded us from offering any 

 comment on it. We did this with a view of suggesting, 

 also, that whoever was wrong — the judge or the expert 

 witness — a matter which it did not concern us to inquire 

 into — it is not in the interests of science that scientific men 

 of reputation should put themselves in the position 

 of advocates, thus rendering such treatment possible. 

 Judges are only human, and, so long as men with no 

 scientific training are left to bear unaided the burden of 

 trying cases like that in which the Edison-Swan Com- 

 pany were plaintiffs, with their conflicting evidence, their 

 authoritative opinions one way flatly contradicted by 

 equally authoritative opinions the other, their masses of 

 facts on subjects unfamiliar to the judge, so long must 

 scientific men who are concerned in such cases expect 

 unpleasant rencontres of this description either with the 

 perplexed and worried judge or with the counsel on one 

 side or the other. To be a witness at any time in a court 

 of justice is not pleasant ; it is an experience we have all 

 to go through, at one time or another, with more or 

 less resignation, supported by the consciousness that 

 we are doing our duty as citizens and aiding the course 

 of justice. But to be a witness in a scientific case 

 on a subject to which you have devoted your life, 

 and with regard to which you have obtained a position 

 of authority, it may be, amongst your fellows who are, of 

 all men in the world, the most capable of judging, and to 

 be compelled to undergo cross-examination of the usual 

 type at the hands of a gentleman who made up his few 

 meagre and jejune facts on the subject from his brief the 

 night before, and who will forget all he knew by the next 

 night — this is hard indeed. But we cannot see how men 

 of science can get out of these inconveniences and un- 

 pleasantnesses any more than any other class of the com- 

 munity, so long as the trials of these cases are in the 

 hands of men who know nothing of science, and who 

 have no regular and systematic means of obtaining aid — 

 judicial aid, that is — from those who do. 



Lawyers appear to be as discontented with the present 

 system as men of science have reason to be. The prin- 

 cipal legal paper went so far the other day as to suggest 

 the formation of a special court for the trial of patent 

 cases. These have increased so much of recent years, 

 consequent on the vast increase of scientific discoveries 

 and their practical applications to the business of life, 

 that the old machinery is no longer adequate to deal with 

 the new situation. Other litigants suffer in their business 

 and pockets ; the courts become congested, and the judi- 

 cial business of the country is seriously impeded. The 

 present arrangements can be satisfactory to no one, ex- 

 cept, perhaps, to the few lawyers who are making their 

 fortunes by them. To our minds, no very revolutionary 



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