Vol. 37, Number 6—June 2005

I N T E R V I E W

Rulemaking As A Communal Undertaking: An Interview with Chief Judge David Levi

	Chief Judge David F. Levi (E.D. Calif.)

Chief Judge David F. Levi was appointed to the U.S. District Court for the Eastern District of California in 1990. He has served as chair of the Judicial Conference Committee on Rules of Practice and Procedure since 2003.

Q Are you concerned with the frequency of changes to the rules?

A Very much so. The Rules Committees are sensitive to the burdens imposed on the bench and bar that follow any rule change. So it bears noting that the committees pursue only a fraction of the worthiest rule changes proposed. We also try to bunch the changes so that there is not a continual stream. At the same time, though, the committees are mindful of their statutory duty to monitor the operation of the rules and address litigation problems.

The Rules Enabling Act is sometimes referred to as a treaty between Congress and the Judiciary, in which Congress defers to us on regulating procedure in the courts while always retaining the prerogative to directly amend the rules. It is the Rules Committees' responsibility to ensure that the rulemaking process is faithfully followed whenever the need for rule changes emerges, so that direct congressional action is not necessary. Maintaining effective dialogue with congressional members and staff is key to averting misunderstandings. The committees are also fortunate in having a strong working relationship with the Department of Justice, which uses its good offices to support the Rules Enabling Act process in Congress.

Q Is Congress considering amending any of the rules?

A Historically, Congress has supported the Rules Enabling Act process, especially the Senate and House Judiciary Committees' leadership. The rulemaking process may be long, but each rule amendment is the product of meticulous and painstaking drafting. Importantly, draft rule changes are exposed to extensive review and reflect comment from the public, bench, and bar. Because the rulemaking process is held in such high esteem, Congress regularly defers action on the many rules-related bills that are introduced each congressional session, opting to allow the rulemaking process to proceed. But on occasion, Congress focuses its attention on specific rules-related matters that require us to respond.

Late last year, the House of Representatives passed the Lawsuit Abuse Reduction Act. The bill has been reintroduced, and the House Judiciary Committee reported it favorably last month. The bill undoes the 1993 amendments to Civil Rule 11, which made the Rule discretionary, and would again make sanctions mandatory as was the case from 1983-1993.

The experience under mandatory sanctions was not a happy one. Instead of curbing expense, the 1983 rule actually added unwarranted delay and expense to litigation. The Civil Rules Committee continues to oppose such legislation. It found reassuring the results of an April 2005 Federal Judicial Center survey of district judges that showed a remarkably strong consensus among district judges favoring the existing Rule 11 and disapproving a return to the 1983 Rule 11.

The rising cost of litigation in the federal courts is a concern for all of us. The Civil Rules Committee constantly is studying ways to reduce litigation costs and expense. But the committee believes that far more effective measures are available to reduce litigation costs than creating satellite sanctions litigation. That is why the committee is devoting its attention to changes in the rules governing discovery, where most litigation expense accrues and where the committee believes that far-reaching and long-lasting benefits can be achieved.

Q What is the most controversial rule proposal now under consideration?

A The Federal Rules of Appellate Procedure are ordinarily free from controversy, but proposed new Rule 32.1 has attracted an unusual share of attention. It would allow an attorney to cite unpublished appellate opinions to any court of appeals. Unpublished opinions are now readily available to virtually anyone with access to a computer or law library. The new rule deliberately takes no position on the precedential value of these opinions, leaving that substantive issue to the individual circuits. On its face, the proposal seems noncontroversial. Nine of the circuits already allow citation and what could be more reasonable than permitting a party to bring an earlier official court ruling to the court's attention?

In light of the public comment, including comments from many judges in the Ninth and Second Circuits, the Appellate Rules Committee asked the Federal Judicial Center to test some of the arguments that predicted changes to opinions or to workload that might follow if citation were permitted. The FJC's survey of circuit judges shows not only a clear preference for the proposal but also revealed no evidence of adverse consequences to the workloads or opinions of the courts that now permit such citations. The majority of lawyers, major bar organizations, and the Department of Justice all favor the proposal. Also, this is one of those rules changes that Congress has been monitoring. If the rule is adopted, I predict that in a very short time we will wonder what the fuss was all about.

Q How is the restyling project proceeding?

A Several years ago, the appellate and criminal rules were comprehensively revised to enhance their simplicity and clarity. The comprehensive restyling of the civil rules is out for public comment and follows up on those successful projects. We are hopeful that public reaction to the revised rules will track the success of the earlier efforts.

The restyling projects have not attracted a great deal of attention outside the rules committees, yet we believe that the revisions will profoundly affect lawyers even though the full impact may not be manifested until after many years. Comparing the existing rules side-by-side with the restyled rules vividly shows the superiority in the clarity, simplicity, and consistency of the restyled rules. Making the rules easier to read and simpler to understand are primary goals of our work.

Q The Civil Rules Committee has other ongoing projects—what are they?

A We will be asking the Judicial Conference to approve changes that will address problems arising from the discovery of computer-based information usually called "electronic discovery." All too often, the discovery rules as applied to electronic discovery are unclear, resulting in uncertainty and too much wasted expense and delay. Some attorneys are using the lack of definiteness for strategic advantage, diverting important attention and resources from consideration of the merits of the case. Enormous amounts of money are spent on "heroic" efforts to uncover and retrieve electronic information from inaccessible sources with little likelihood of finding information that is otherwise available in other more accessible sources. Parties incur needless expense in retaining vast amounts of electronic information even though such information is not needed for business purposes, fearing that they will otherwise be subject to outcome-determinative sanctions. The proposed amendments carefully balance the competing interests and provide needed guidance on how to address these thorny issues on a practical basis.

Q What is the package of amendments proposed by the Evidence Rules Committee?

A Of all the Rules Committees, the Evidence Rules Committee is most wary of proposing amendments. There is highly developed case law in the circuits addressing virtually every permutation of the rules. However, where there are enduring splits of authority among the circuits or other entrenched difficulties, the committee will act to clarify the rules.

The committee has worked for several years on a package of amendments to four rules that it expects to present to the Judicial Conference this September. Each amendment addresses issues that have produced longstanding conflicts among the circuits. Most noteworthy among the four is an amendment that would permit statements in compromise in a civil case to be admitted as evidence of guilt in a criminal case, but only when made in an action involving a government regulatory agency.

The other amendments clarify the meaning of a crime involving "dishonesty or false statement" for purposes of impeachment; make clear that character evidence may not be admitted to prove conduct in a civil case; and limit challenges to jury verdicts, on the grounds of jury mistake or confusion, to clerical errors on the verdict form. Meanwhile, the committee is monitoring case-law developments relating to "testimonial" hearsay statements following the Supreme Court's Crawford decision. The Court's decision has the potential of calling into question a number of the rules.

Q How does the new bankruptcy legislation affect the rules?

A One of the primary advantages of the rulemaking process is the extended period of time provided for careful and deliberate review by many lawyers and judges. Yet the rulemaking process is flexible and can promptly respond to legislative exigencies, like those arising from the Bankruptcy Abuse and Consumer Protection Act. The Bankruptcy Rules Committee is busy drafting rules and Official Forms to implement the Act, which largely takes effect in October 2005.

The committee is developing interim rules on an expedited basis that will have undergone intensive review by the committee, the Standing Committee, and the Judicial Conference by August, when the interim rules are expected to be transmitted to the courts. The courts can adopt and follow these interim rules until the Federal Rules of Bankruptcy Procedure themselves are amended. That amendment process will begin next year when the interim rules will be proposed as amendments to the federal rules and published for comment in accordance with the Rules Enabling Act. The amendments will take effect several years from now after completion of the rulemaking process. Meanwhile it is expected that the courts will voluntarily follow the interim rules, providing the uniformity in procedure that is essential in bankruptcy.

QWhat about the Criminal Rules Committee?

A The Criminal Rules Committee is reviewing the Crime Victims' Rights Act and the Supreme Court's Booker opinion to determine whether rule amendments are warranted. The committee will also be recommending that the Judicial Conference approve amendments to Rule 41, which provide guidance on the issuance of tracking device warrants.

The Department of Justice is proposing an amendment to Rule 29 that would require the trial court to defer entering a judgment of acquittal until after the jury reaches a verdict. The timing of the decision on a Rule 29 motion is left to the court's discretion under the current Rule. By this proposal, the Department seeks to preserve its right of appeal, since a pre-jury verdict acquittal cannot be appealed because of Double Jeopardy. The committee is also considering a proposal by the American College of Trial Lawyers to amend Rule 16 to provide specific guidance on Brady disclosure requirements, including the timing of such disclosures.

Q You have been involved in the rulemaking process for about a decade. Any final thoughts?

A It has been a wonderful experience to work with the talented judges, lawyers, and academics on the Rules Committees. The committees are fortunate in so many ways. It all begins with the Chief Justice who does a marvelous job in selecting the members of the committees and their chairs. Each of the committees is supported by a strong staff from the AO and a learned academic who acts as the reporter to the committee. The bar also supports the committees in a variety of ways, not the least of which is the public comment received when a rule is first published. Much of this comment is absolutely first rate, incisive, even passionate. All of the committee members enjoy the work and the high level of the discussions. Participation on any of the Rules Committees is a unique opportunity to learn what is happening in the law around the nation.

Our rulemaking process is very much a communal undertaking. Openness and transparency are its hallmarks, which have served the Judiciary and the public well. The Rules Committees encourage participation by the bench, bar, and public in the rules process to better inform our deliberations, improve the final product, and strengthen the legitimacy of the process. So long as we remain true to the integrity of the rulemaking process, we can be assured that the procedural rules governing our daily work will continue to be the best that we can conceive.