July 27, 2005
In a little noticed development, the federal rules advisory committee has published for comment a complete rewrite of the Federal Rules of Civil Procedure. The goal is to simplify and clarify the rules, without changing substantive meaning.
The rules that govern federal court proceedings have long suffered from the ills that plague legal writing—convoluted structure, wordiness and lack of clarity. The committee’s proposed “style revision” aims to simplify and clarify by applying modern drafting and style principles. For example, the revision would transform Rule 71 from this:
When an order is made in favor of a person who is not a party to the action, that person may enforce obedience to the order by the same process as if a party; and, when obedience to an order may be lawfully enforced against a person who is not a party, that person is liable to the same process for enforcing obedience to the order as if a party.
When an order grants relief for a nonparty or may be enforced against a nonparty, the procedure for enforcing the order is the same as for a party.
There were limits on how much simplification and clarification the committee could do. Some sacred phrases have become so familiar to lawyers that they resisted the committee’s efforts. For example, although it could have improved or deleted the phrase “in equity and good conscience” that appears in Rule 19, the committee chose not to do so.
The committee’s report on its proposal includes an explanation of the guiding principles provided by the committee’s style consultant, Professor Joseph Kimble of Thomas Cooley Law School. All legal writers can benefit from Professor Kimble’s discussion of the style principles that make writing simpler and clearer.
You may obtain the full text of the proposed style revision, with Professor Kimble’s discussion, at the Judicial Conference of the United States web site:
If you do not like what you see, you have until December 15, 2005, to submit comments. The committee will also be holding three public hearings: October 26 in San Francisco, November 18 in Chicago, and December 2 in Washington, D.C.