The Law School Magazine  ·  Spring 2008 :

5-Minute Classroom: Stay Current on the New Rules of Federal Civil Procedure

By - Spring 2008
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The Federal Rules of Civil Procedure were completely rewritten, effective Dec. 1, 2007.  The rules have been amended from time-to-time since they were adopted in 1938, but never have all the rules been amended at once.  Making the language of the rules consistent after years of piecemeal change is one reason for the recent amendments.  Other reasons are to make the rules easier to understand by re-organizing them, updating arcane language, and rewriting them in plain English.  The amendments are meant as a restyle project and, with only minor exceptions, are not intended to change the substantive meaning of any of the rules.  The Civil Rules restyle project is the third such project, following the restyling of the Rules of Appellate Procedure (effective 1998) and the Rules of Criminal Procedure (effective 2002).

Practicing attorneys rely on familiarity with the rules to effectively represent their clients.  It is unsettling to be confronted by such a sweeping change.  But don’t despair: there are ways to stay up to snuff with the new rules.

History and Background of the Amendments

To introduce practitioners to the changes, Thomson West published a five-minute video, available at www.west.thomson.com/librarian.  In the video, Steven Baicker-McKee and William Janssen, authors of West’s Federal Civil Rules Handbook, discuss the significance of the changes.

The Federal Judiciary devotes a section of its U.S. Courts web site to Federal Rulemaking, including extensive information on the new civil rules.  The Federal Rulemaking page is available at www.uscourts.gov/rules/.  While this page includes many helpful, authoritative documents, it is very difficult to use.  For an understanding of the history and intent of the rules changes, I recommend the Feb. 25, 2005 memo to the public from the Judicial Conference Advisory Committee on Federal Rules of Civil Procedure and the Introduction to Proposed Style Revision of the Federal Rules of Civil Procedure of the same date. These documents are found in one, large PDF file called “Feb. 2005 Proposed Style Rules Amendments (PDF)” in the “Archives (more)” section of the Federal Rulemaking page, or directly at www.uscourts.gov/rules/Prelim_draft_proposed_pt1.pdf.

The New Rules – Side-by-Side with the Old

In the “Archives (Rules Effective Dec. 1, 2007)” section of the web site, the Committee published “Excerpt of the Report of the Advisory Committee on Civil Rules (Style Rules).”  This 255-page PDF document sets out the old rules 1-86 next to the new rules and includes the committee notes below each rule.  To avoid searching the site, you can access this document directly at www.uscourts.gov/rules/supct1106/Excerpt_CV_Style.pdf.  This same document has been published by LexisNexis as a soft-bound, pamphlet supplement to Moore’s Federal Practice.  The pamphlet is entitled “Revision of the Federal Rules of Civil Procedure.”  If your firm does not have Moore’s Federal Practice but you do subscribe to Lexis.com, you can find the document there for a fee under the “Emerging Issues” section of the Litigation Practice & Procedure materials.

Case Law Interpretation of the New Rules

Changes in the language of the rules create an opportunity for novel arguments about the rules.  We can expect to see development of case law interpreting the new rules. You can stay abreast of new decisions in several ways.  If your firm subscribes to the Federal Rules Decisions reporter, you can browse the monthly advance sheets – especially helpful is the digest at the front of each issue – to see new decisions involving the Rules of Civil Procedure.  If you prefer the online environment, you can use the WestClip (Alert Center) feature at Westlaw.com or the Alerts system at Lexis.com to receive notices of new decisions about the rules.  At Lexis, set up an alert in one of these databases: All Federal Court Cases Combined, Federal Cases specific to your jurisdiction, or Federal Courts, Evidence & Civil Procedure Cases.  Use WestClips with All Federal Cases, Federal Cases specific to your jurisdiction, or the Federal Rules Decisions databases.  Talk to your firm librarian or your Westlaw or Lexis representative to find out more.  Rely on your librarian or the research support attorneys at Westlaw and Lexis to help craft an effective search to start your alerts.

Melanie Oberlin joined The Ohio State University Moritz College of Law as a reference librarian in 2007.  Prior to becoming a librarian, Oberlin was an environmental litigation attorney in Austin, Texas. Her responsibilities include assisting in development of the U.S. law collection, providing reference services to faculty, staff, students, and the public, and teaching first-year and advanced legal research courses at Moritz.