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June 2007

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This article is in the news archives --- for current news go to the Third Branch News.


Restyled Civil Rules Win Burton Award

Remove ambiguous language. Replace archaic words and legal jargon. Root out inconsistent and stilted usage. Minimize the use of superfluous intensifiers, redundant words, and unnecessary cross-references. The Federal Rules of Civil Procedure have emerged from a four-year comprehensive style revision with their language clarified, simplified, and modernized—and without changes to their substantive meaning.

The simplification brings to a close the first comprehensive rewrite of the federal civil rules in the nearly 70 years they have been in existence. The restyled Rules of Appellate Procedure took effect in 1998 and restyled Rules of Criminal Procedure took effect in 2002. The Rules of Civil Procedure were slated third, recognizing that they would be more difficult because they are older, longer, and have been amended more often since they became effective. The four years required for the work attests to just how difficult it was.

The rewritten civil rules were approved by the Judicial Conference in September 2006 and transmitted to the Supreme Court. The Court approved the rules and sent them to Congress on April 30. If Congress does not enact legislation to reject, modify, or defer them, the revised rules will take effect as a matter of law on December 1, 2007.

This latest facelift was the responsibility of the Judicial Conference Standing Committee on Rules of Practice and Procedure and the Advisory Committee on Civil Rules, both composed of federal judges, practicing lawyers, law professors, state chief justices, and representatives of the Department of Justice. Each committee has a reporter, a law professor, who is responsible for coordinating the committee’s agenda and drafting appropriate amendments to the rules and explanatory committee notes. Staff from the Office of Judges Programs, Administrative Office, supported the project.

A comparison of the existing and
restyled rules makes the case for
the changes. As an example, the
present Rule 8(e)(2) says:

When two or more statements are
made in the alternative and one
of them if made independently
would be sufficient, the pleading
is not made insufficient by the
insufficiency of one or more of the
alternative statements.

The same rule, restyled:

If a party makes alternative state-
ments, the pleading is sufficient
if any one of them is sufficient.


They all obviously did a stellar job. Earlier this month the restyled civil rules project was recognized by the prestigious Burton Awards for Legal Achievement with the 2007 Reform in Law Award. Provided in association with the Library of Congress and the Law Library of Congress, the award was given to the Advisory Committee on Civil Rules, which carried out the project; the Standing Committee on Rules of Practice and Procedure, and Professor Joseph Kimble from Thomas Cooley Law School, who served as drafting consultant. Judge Lee Rosenthal (S.D. Tex.), chair of the Civil Rules Committee, accepted the award on its behalf. Judge Thomas W. Thrash, (N.D. Ga.), who serves on the Standing Committee and on its three-member Style Subcommittee, accepted the award for the Standing Committee.

The civil rules, which were described by Judge Edward T. Gignoux, former chair of the Rules Committee, as “among the most significant accomplishments of American jurisprudence,” originally took effect in September 1938. “The age, length, and complexity of the civil rules make the benefits of restyling even more valuable and important,” said Rosenthal. “If we had not done this work, the rules would have become progressively more difficult to understand and use.”

Some changes impacted entire blocks of text. Others were as simple as changing “infant” to “minor.” Dense block paragraphs and lengthy sentences were replaced with shorter sentences, progressively indented paragraphs, descriptive headings, and lots of white space. The rule numbers remain unchanged.

Every change to the civil rules language was analyzed and documented, scrutinized and reviewed. Originally, there was some concern that a rewrite might change the substance of the rules, bringing on litigation to determine meaning. “In all cases the rules restyling is intended to be stylistic only,” said Chief Judge David F. Levi, (E.D. Calif.), chair of the Standing Committee on Rules of Practice and Procedure. “There was little risk that the restyled rules would cause inadvertent changes in the meaning of the rules. The relationship between the civil rules and existing laws is unchanged.”

The Federal Rules of Appellate, Bankruptcy, Criminal, and Civil Procedure and the Federal Rules of Evidence govern procedure, practice, and evidence in the federal courts. Under the Rules Enabling Act, the Judiciary is authorized to prescribe therules of the federal courts.