Michael Risch, Villanova University Charles Widger School of Law, and Mike Viney, Colorado State University, has posted The Way Lawyers Worked, which is forthcoming in volume 90 of the University of Cincinnati Law Review:
Court and litigation operations are opaque in the best of times, and the lack of detailed records from the Nineteenth Century makes it even more difficult to learn how lawyers and judges went about their business. This may be one of the reasons why there are very few accounts of the nuts and bolts of 1800s law practice. This article illuminates the development of litigation and the law in the middle of the Nineteenth Century by examining archival court and Patent Office records.
Most accounts of the time focus either on judicial opinions or the relationship of the parties, but few articles focus on how the lawyers and courts went about their business. Unlike today, when court documents are easily available and often widely published, litigation documents were not generally published in the 1800s. We have unearthed examples to learn about the way lawyers (and courts) worked.
Our journey to investigate the workings of lawyers and courts is facilitated by the apple parer, a kitchen tool of varying complexity designed to peel and sometimes slice apples. Using the first few cases involving parers, this article examines the details about how legal practice and legal precedent were formed in a world absent the technologies that facilitate our communication in modern times. The battle between manufacturers to protect apple parer designs gives a detailed peek behind the dusty opinions we read today.
Our newly acquired archival records yield insights that would be unthinkable today: a lawyer arguing a case before his (judge) brother, printed form complaints with handwritten party names, a learned treatise author omitting the key precedent in briefing, a lawyer testifying about communications with his client, and much more.