Amendments to the Federal rules of civil procedure : hearing before the Subcommittee on Intellectual Property and Judicial Administration of the Committee on the Judiciary, House of Representatives, One Hundred Third Congress, first session, June 16, 1993 online

Fifth and Eleventh Circuits District Courts Associations.

Our final panelist is Judge William Schwarzer, U.S. district
judge for the Northern District of California, and Director of the
Federal Judicial Center. Prior to his present position, he served as
senior counsel for the President's Commission on CIA Activities
Within the United States; as Chairman of the Judicial Conference
of the United States, Committee on Federal/State Jurisdiction; and
as a member of the American Law Institute's Advisory Committee
on Complex Litigation. Judge Schwarzer has published several
books and numerous articles on subjects relating to the Federal
courts and the administration of justice, and, of course, he is no
stranger to this subcommittee. We are very happy to see him and
our other panelists today.

We have each of your statements, which are very comprehensive.
We have read them, and we will make them a part of the record
in full. We would like you to summarize so that we can get right
to questions, if you would.

Before I call on you. Judge Keeton, let me tell you, I too want
to join with my colleague from California commending the excellent
work that your standing committee has done on this and other
matters. We thank you very much.

Judge Keeton.

STATEMENT OF ROBERT E. KEETON, DISTRICT JUDGE, U.S.
DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS,
AND CHAIRMAN, STANDING COMMITTEE ON RULES OF
PRACTICE AND PROCEDURE, JUDICIAL CONFERENCE OF
THE UNITED STATES

Judge Keeton. Mr. Chairman and members of the subcommit-
tee, I am very grateful for the opportunity to appear before you,
and I am grateful for the gracious comments that both you and Mr.
Moorhead have made about the standing committee's work.



My remarks in this brief opening statement will be focused pri-
marily on the rulemaking process, although I do want to urge that
the rules that are before you all merit approval. I will urge you to
adopt them without modifications.

Let me speak first to the rulemaking process. It is a process that
is designed to focus on procedural matters to the exclusion of sub-
stantive matters.

I welcome your opening statement with the focus on the state-
ment of the objective of rules in the Federal Rules of Civil Proce-
dure. A similar statement appears also in rule 2 of the criminal

rules.

The enabling statute specifies a fourfold rather than threefold ob-
jective: One, simplicity in procedural rules; two, fairness in the ad-
ministration of the rulings; three, just determination on the merits
of the actions; and four, avoiding needless delay and expense.

Consistently with those rules I think we have a system in the
Rules Enabling Act process that is responsive to the checks and
balances system initiated in our Constitution. And I think it is a
20th century gloss on the wisdom of the constitutional drafters that
we now have a Rules Enabling Act that specifically focuses on
these objectives and for the purpose, with the aim, that the rules
shall in the end be fair and neutral substantively. And I strongly
urge that that objective be maintained and respected.

I believe it is fair to say that changes that are occurring outside
the judicial system in our society generally are placing greater
stresses on the judicial system in a variety of ways more than ever
before, and one of those ways is illustrated in the rulemaking

process.

You have wisely provided for extensive hearings today with rep-
resentation from a large group of people, perhaps the most thor-
ough hearings that have been conducted by a congressional sub-
committee on the rulemaking process, at least since there were
hearings on evidence rules.

And I think it is not accidental that you are hearing froni more
constituencies, because as the processes of administration of justice
come under greater stresses and more complex litigation is pre-
sented, there are increasing concerns by the participants in that
process that they would like to get an edge in the procedural as-
pects of the matter.

The Committees on Rules have resisted that urge because we
take it as our statutory mandate that the rules are to be sub-
stantively neutral. We have given very thorough consideration to
the rules that are before you at the present time, and even more
thorough consideration than is required by the Rules Enabling Act
process by additional publication of the most controversial of these
rules, those that are the civil rules.

I strongly urge the committee that the Rules Enabling Act proc-
ess is a wise accommodation of the interests, mutual interests of
the three branches of government in participating in this process.
I believe each branch and the elements of that branch participating
in the process have special institutional competence to deal with
their respective aspects of this process.

I do think the Supreme Court of the United States is taking an
interest in the rules. It is functioning in a role that is somewhat



different from the delegated role to other elements of the judicial
branch, and I think quite appropriately so.

But I think it is also entirely appropriate that you are giving this
thorough consideration to the rules that are before you. I welcome
that process. I urge that we all respect the process, not either abort
it or bypass it with statutes that have not gone through the proc-
ess, I know this is a concern of the chairman as well, and I cer-
tainly welcome that concern and hope to do all we can to encourage
the use of this thorough Rules Enabling Act process throughout the
system.

Thank you, Mr. Chairman.

Mr. Hughes. Thank you. Judge.

[The prepared statement of Judge Keeton follows:]

Prepared Statement of Robert E. Keeton, Diotrict Judge, U.S. District
Court for the District of Massachusetts, and Chairman, Standing Commit-
tee ON Rules of Practice and Procedure, Judicial Conference of the Unit-
ed States

Mr. Chairman and Members of the Subcommittee:

Thank you for permitting me to appear today.

[I am Robert E. Keeton, United States District Judge for the District of Massachu-
setts and Chairman of the Standing Committee on Rules of Practice and Procedure
of the Judicial Conference of the United States.]

I welcome this opportunity to present views for your consideration on the subject
of the rulemaking process. This is a subject in which all three branches of govern-
ment have a vital interest. Our overlapping interests are inherent in our constitu-
tional system of checks and balances. The need for open lines of communication
among the three branches may be more compelling in tnis decade than ever before.

The Judicial Conference of the United States is charged by statute with drafting
and recommending rules that "promote simplicity in procedure, fairness in adminis-
tration, the just determination of litigation, and the elimination of unjustifiable ex-
pense and delay." The growing number and complexity of the controversies brought
Defore the federal courts for resolution make this task increasingly difficult. Added
delay and expense in litigation are outgrowths of the volume and complexity of case
filings and add urgency to our responsibilities. Several trends contribute to the
added numbers and complexity of cases.

First. Both total population and concentration of population continue to increase.
Because of the efiects of congestion, the numbers of disputes are increasing more
rapidly than just proportionally to population increases.

Second. Our economy is changing fundamentally.

One kind of change that bears on lawmaking and the administration of justice
concerns the nature of employment. Job descriptions of the work force are changing.
Job insecurity is another reason that the numoer of disputes is growing more than
just proportionally to population increase.

Another set of economic changes has the effect that fewer and fewer economic en-
terprises are primarily local in character. More and more are national, or even
international. This set of economic changes has an impact on both lawmaking and
the administration of justice. The legislative and executive branches are confronted
with more insistent pressures for national or even international legal solutions, sup-
ported by arguments for federal legislation establishing nationwide legal rules.

Third. The nature of litigation is changing. More rapid change is occurring in this
decade than in any previous decade.

Gone are the days when most indictments had a single count and most civil com-
plaints stated a single claim for breach of contract or tort.

Fourth. The legal profession is changing.

Changes in the legal profession have a bearing on litigation as well as representa-
tion of clients in drafting, counseling, and other contexts. More than ever before, dis-
tinguished and respected membei-s of the bar are expressing concern about the abil-
ity of the profession — lawyers, judges, academics — to maintain the highest stand-
ards of professionalism, both in law practice generally and in litigation as well.

More than ever before, trial judges are hearing from many different sources in
the bar, in the executive and legislative branches of government, and from fellow
judges, that we must take time away from judging in order to spend more time and
Decome more efTective in managing cases and caseloads.



8

Also, more than ever before, the legislative and executive branches are hearing
more from lawyers, and from dilTerent organized groups within the bar, because
they perceive that proposed legislation — and even proposed amendments of proce-
dural rules — affect in distinctive ways their substantive interests and those of their
clients.

THE PROCEDURAL RULEMAKING PROCESS

This statement of four trends that affect litigation is barely a thumbnail sketch
of changes in the wind and associated challenges. I have spoken of this broader con-
text as an introduction to the much narrower subject matter on which I now focus —
the procedural rulemaking process.

NEW STRESSES OF RULEMAKING

I have started this way because I believe these larger developments help to ex-
plain some new stresses on rulemaking. They have a bearing on how representa-
tives of the three branches of government may cope with new challenges — working
together, respectful of the system of divided responsibility and checks and balances,
wisely designed as part of our constitutional framework.

STRENGTH OF THE RULEMAKING PROCESS

I believe in the Rules Enabling Act process. Having made that statement just
after referring to our constitutional framework of checks and balances, perhaps I
should hasten to recognize that the Rules Enabling Act process was not carved on
stone tablets, or written into our Constitution, or written into the Amendments that
we identify as the Bill of Rights.

The Rules Enabling Act is a 20th Century gloss on our constitutional frameworic
for solving procedural problems of concern to all three branches of government. It
is, nevertheless, faithful to the spirit of 18th Century insights. Also, I believe the
Rules Enabling Act process is good not only for this decade of the 20th Century,
but for the 21st Century as well. Let me explain briefly why I think so.

The Rules Enabling Act process, as most recently amended in the Judicial Im-
provements Act in 1988, is, I believe, the most thoroughly open, deliberative^^ and
exacting process in the world for developing substantively neutral rules. By "neu-
tral" I mean rules designed to cause cases to be resolved impartially— that is, on
fact findings that are as close to the truth as it is humanly possible to make them,
and under the law interpreted and applied with fidelity to constitution, statutes,
and precedents.

As litigation grows more complex, we must expect that, somewhat more often
than before, particular interest groups in the community generally and even within
the bar may take more interest than in times past in trying to gain an edge for
the future— that is, an edge in the process of resolving controversies yet to come be-
fore the courts. It would be possible, of course, to shape procedural rules to the ad-
vantage of one or another among various interest groups. I urge that we resist all
pressures to do so. Instead, we should do our best, working together, to keep proce-
dural rules substantially neutral.

The Rules Enabling Act process is well designed for that purpose.

As a way of describing this process, I will state some commonly asked questions
and my responses.

WHAT IS THE RULES ENABLING ACT PROCESS FOR ENACTING AND AMENDING RULES?

By a set of statutes — commonly referred to as the Rules Enabling Act— the first
step of the rulemaking process is centered in the Third Branch. More specifically,
the first step is centered in the Judicial Conference of the United States and six
Rules Committees— the five Advisory Committees on Appellate, Bankruptcy, Civil,
Criminal, and Evidence Rules, and the Standing Committee on Rules of Practice
and Procedure. The Standing Committee reviews all the recommendations of the
Advisory Committees and, with any revisions it considers appropriate, forwards
them to the Judicial Conference of the United States as proposed amendments to
the Rules. If the Judicial Conference approves, it sends the proposed rules to the
Supreme Court. If the Supreme Court adopts the rules, it sends them to Congress,
ordinarily on or before May 1, to become effective on December 1 unless Congress
disapproves or modifies them.



WHO INITIATES PROPOSALS AND WHAT IS THE PROCESS FOR CONSIDERING AND

PERFECTING DRAFTS?

Anyone may initiate a proposal to amend or add a rule by sending a letter to
Peter McCabe, Secretary to the Committees. The secretary sends each comment to
the appropriate Advisory Committee for consideration.

The reporter to that committee analyzes the suggestions and, where appropriate,
drafts proposed amendments to the rules and prepares explanatory Advisory Com-
mittee notes. The proposals are then discussed in detail by the members at commit-
tee meetings. When an Advisory Committee is ready to proceed with proposed
amendments to the rules, and the Standing Committee approves publication, the
Secretary mails the proposed amendments and Advisory Committee notes to more
than 10,000 individuals and organizations across the country, seeking their com-
ments. Also, the Advisory Committee holds public hearings.

The number of comments we receive from lawyers and from interested organiza-
tions is increasing substantially. Partly, this may be because recent proposed rule
changes have dealt with such controversial subjects as attorney sanctions and re-
duction of costs and delays in civil cases.

After considering the written comments and testimony from bench and bar, the
Advisory Committee makes a fresh decision on the proposed amendments. Proposed
amendments are then sent in final form through the Standing Committee to the Ju-
dicial Conference.

DOES THE PROCESS NEED TO BE SO ELABORATE AND LENGTHY?

The answer implicit in the Rules Enabling Act is YES, at least in general. The
federal rules directly afTect the daily business of all the district and circuit courts.
They also serve as a pattern for many state procedural rules. The pervasive impact
of the federal rules is good reason to make the process exacting and thorough.

ARE OBSERVERS ALLOWED TO BE PRESENT?

Yes, at all stages. The process is very open. All meetings of the Standing and Ad-
visory Committees are open to the public. The minutes of these meetings and the
papers of the committees are a matter of public record and may be obtained through
the secretary.

WHAT PROPOSED CHANGES ARE AT VARIOUS STAGES IN THE PROCESS TODAY?

Two "packages" of rules changes are in the works. The first package, approved
by the Judicial Conference last September, and adopted by the Supreme Court on
April 22, 1993 is now before Congress. Among other things, a number of significant,
and controversial, changes have been proposed in the civil rules to reduce cost and
delay in litigation and to recast Rule 11, governing attorney sanctions. They will
take effect on December 1, 1993 unless Congress decides otherwise.

The second package, which contains proposed changes in the appellate, bank-
ruptcy, criminal, and evidence rules was sent to the bench and bar for public com-
ment in late 1992. Of particular interest, the proposals would rewrite Criminal Rule
32, concerning sentencing and judgment, ana Evidence Rule 412, deahng with the
admissibility of evidence of a victim's past sexual behavior or predisposition in a
civil or criminal case. The period for publiccomment on these rules closed on April
15, 1993. The respective Advisory Committees have considered the comments this
April and May and have forwarded recommendations to the Standing Committee for
consideration at its meeting of June 17-19, 1993. If these amendments to the rules
are approved through the five-step process (Advisory Committee, Standing Commit-
tee, Judicial Conference, Supreme Court, and Congress) without delay at any point,
they can take effect on December 1, 1994.

ARE ANY LONG-RANGE PLANS FOR RULES CHANGES UNDER CONSIDERATION?

Yes.

By statute the Standing Committee is required to review each recommendation
of the Advisory Committees and recommend to the Judicial Conference such
changes "as may be necessary to maintain consistency and otherwise promote the
interest of justice." Some of the separate existing rules deal with the same or closely
similar issues in different ways, in some instances just because they were drafted
at different times by different drafters. Also, over time and with a succession of
amendments, some rules have become unnecessarily complicated.

I have appointed a Style Subcommittee, which has been chaired by Professor
Charles Alan Wright, to identify inconsistencies and work toward clarifying and



10

simplifying the language of the rules. We regret that Professor Wright (at his re-
quest because of his new responsibilities as President of the American Law Insti-
tute) will be leaving this position at the end of the June meeting of the Standing
Committee. I am very pleased that Judge George Pratt has agreed to succeed F*ro-
fessor Wright as chair of this Subcommittee.

Working with Judge Sam Pointer and the Advisory Committee on Civil Rules, the
Style Subcommittee now has nearly completed a comprehensive first draft revision
of the Federal Rules of Civil Procedure. It significantly reduces the number of
words, resolves inconsistencies and ambiguities, and makes the rules much more
readable. The committees must do additional work before these style changes (along
with the substantive changes essential to resolving ambiguities) are ready for public
comment. The committees have made a good start on improving the quality and
readability of the civil rules, and I hope a draft will be ready for publication soon.

In the long run, a closer integration of the five separate sets of rules could elimi-
nate needless repetition as well as inconsistencies that leave a reader in doubt as
to whether different meaning was intended and, if so, why. Another subcommittee
will continue to study the feasibility of closer integration of the different sets of
rules.

A third Subcommittee has the assignment to consider Long-Range Planning in a
more comprehensive sense. It also functions in liaison with the Long Range Plan-
ning Committee of the Judicial Conference of the United States.

WHAT IS THE STATUS OF THE REVIEW OF LOCAL RULES OF COURT?

The local rules project began several years ago under Dean Daniel Coquillette and
Professor Mary Squiers of Boston College Law School. At the request of the Stand-
ing Committee, they reviewed all the local rules of the district courts and the courts
of appeals for consistency with the national rules.

The Administrative Ofiice has distributed widely the findings of the Local Rules
Project. One of the principal benefits has been to focus each court's attention on the
numbering system for local rules. Out-of-state practitioners and local attorneys inex-
perienced with federal court practice have complained about not knowing where to
locate the many procedural requirements set forth in local rules. Consistent num-
bering can help. The project has recommended a uniform numbering system for
local court rules that is linked to the numbering of the national rules. Most of the
courts of appeals now use the recommended uniform numbering system, and a grow-
ing number of district courts are adopting the system.

HAS CONSIDERATION BEEN GIVEN TO ORGANIZING THE PROCESS SO AMENDMENTS CAN

BE MADE LESS OFTEN?

Yes. There is a perception that the federal rules are amended too quickly and too
often. The Standing Committee and the Advisory Committees are very sensitive to
this concern. Indeed, many thoughtful and valuable suggestions never reach the
public comment stage because they are not considered critical enough by the com-
mittees to warrant the serious step of amending the rules.

On the other hand, some court rulings and new legislation inevitably require
amendment of rules — and in a few instances, prompt amendment.

We are also very mindful of our statutory obligation to evaluate continuously the
operation and efiect of the federal rules and to recommend rules changes to promote
simplicity and fairness in procedure and to eliminate unjustifiable expense and
delay.

THE PROPOSED CIVIL RULES AMENDMENTS

The package of civil rules submitted by the Supreme Court to you this year con-
sists of amendments to twenty-nine existing civil rules and one new rule. Most of
the discussion, however, has focused on Rule 11, Rule 26 and other discovery rules,
and Rule 30.

The process used in developing the rules before you today has been even more
detailed and exacting than is required by the statute.

The proposed rule changes were first discussed by the Advisory Committee on
Civil Rules, ably chaired by the Honorable Sam C. Pointer, Jr., Chief Judge of the
United States District Court for the Northern District of Alabama. That Committee
consists of judges, academics, and practitioners who are experienced in litigation in
the federal courts. They are all also keenly aware of the dilTlculties in rule drafting.
This committee of professionals met periodically to develop a first draft of these
rules.



11

The issues addressed by the amendments proposed by the Advisory Committee to
Rule 11, Rule 30, and the discovery rules had been previously raised, considered,
and debated thoroughly for many years by judges, attorneys, and academics. Nu-
merous legal papers and law review, articles have been written criticizing discovery
abuse. Indeed, a national consensus appears to be fast approaching calling for the
reform of the discovery process to reduce the growing delays and expenses experi-
enced far too often in litigation.

Partly in response, the courts have attempted to address cost and delay problems
on a district-by-district basis through amendment of their local rules, particularly
those rules governing discovery. Nonetheless, the problems have persisted and re-
form on a national level continues to be advocated by many as the only real solu-
tion. , , . J. • J

When the Advisory Committee began to explore these issues, it received many
suggestions and draft proposals recommending amendments of the rules. In light of
the concerns raised by so many difTerent individuals and organizations in so many
different quarters, the Committee was convinced that changes in Rule 11 and the
discovery rules were warranted providing courts with greater flexibility in managing
their cases. As a result, the Committee studied and authorized several comprehen-
sive surveys of judges and practitioners on the effect of Rule 11. It reviewed many
difTerent alternative proposals on discovery and Rule 11 changes, including several
pertinent local rules. Only after deliberate and careful study over the course of sev-
eral years and meetings did the committee develop a first draft of rules.

The draft rules were then reviewed by the Standing Committee, who voted to ap-

grove their publication for public comment. Like the Advisory Committee, the
tanding Committee is composed of professionals well-versed in the intricacies of
rule drafting and in the problems facing the federal courts and litigants.

Most of the draft rules were published in August 1991, accompanied by an invita-
tion for comments from the bench, bar, and public. (Some of these rules had been
published in 1989 and received substantial comment. In light of the concerns raised
oy the comments, the proposed amendments were revised and resubmitted for pub-