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ASK A LAWYER
Judge Patrick E. Higginbotham sits on the U.S. Court of Appeals for
the Fifth Circuit. He is chairman of the Judicial Conference's
Advisory Committee on Civil Rules.
Q: What has been the reaction to the amendments made in 1993 to the
A: In general, the response has been positive. Practitioners appear
to like the changes to Rule 11, and its satellite litigation appears
to have slackened. We will continue to monitor the effect of the
changes and instances of abuse. Most of the other changes in that
package of amendments validated the practices of most courts.
Q: What about the amendments dealing with disclosure procedures under
A: The changes to Rule 26 continue to be controversial, in part
because they are perceived as adding to a growing balkanization of
the federal rules. Attorneys complain that they must now search
through federal rules, local rules, CJRA plans, and standing orders
before filing a law suit in a district court. Of course, many of the
differences in discovery practices arise from experimentation
mandated under the Civil Justice Reform Act. The amendments to Rule
26 accommodate the act and authorize such experimentation.
Although the amendments to Rule 26 permit courts to adopt different
discovery approaches, they do provide the courts with a model that
has, in fact, been adopted by many courts. And in that sense, the
amended rule works to achieve greater uniformity so that rather than
94 distinct discovery plans, we have only a handful. When the
evaluation of the CJRA plans is completed, we will revisit the rule.
Perhaps then we will be able to fashion a rule that is more uniform
and more in line with traditional federal rules.
Q: Could you tell us about any changes that are under consideration?
A: A proposed amendment to Rule 5, authorizing local court rules to
permit electronic filing was published for public comment. We are now
considering the comments. The committee also has proposed that
amendments to Rules 47 and 48, dealing with jury size and voir dire
be published for public comment.
A lot has been written about the Judicial Conference decision in 1971
to reduce juries from 12 to 6 persons in civil cases. Virtually all
scholarly writings on this subject have criticized 6-person juries.
In an insightful article in the Hofstra Law Review, Chief Judge
Richard S. Arnold (8th Cir.) forcefully argues for a return to the
Arnold highlights the historical reasons embedded in common law for
12-person juries and identifies the most glaring defect of 6-person
juries. Statistical analyses and real life experiences have
demonstrated that 6-person juries are unquestionably less likely than
12-person juries to include minority representation. A 12-person jury
can better reflect community attitudes and experiences. Other
commentators also have shown that 6-person juries have produced
inferior deliberation and more inconsistent jury decisions.
The committee found these reasons compelling and proposed amendments
to Rule 48 to require 12-person juries with no alternates. It
believes that the added cost incurred in providing 12-person juries
is not large. Regardless, it is a small price to pay for maintaining
the integrity of the administration of justice. It is a return to one
of our oldest traditions-one that works.
At its January 1995 meeting, the Standing Rules Committee approved
publication of the proposed amendments to Rule 48 for public comment
in Fall 1995.
Q: What is the change proposed to voir dire procedures?
A: For some time now, the bar and members of Congress have strongly
advocated a direct role for the lawyer during voir dire. The
committee has carefully considered the opposition of some judges to
any questioning by attorneys. The committee shares their opposition
to voir dire as practiced in some state systems. We are persuaded
that the proposed rule fairly accommodates competing interests and
will not allow forensic games.
The Supreme Court decisions in Batson and J.E.B. v. Alabama changed
the legal landscape by making it more difficult for attorneys to
exercise peremptory challenges. As noted in J.E.B., Without an
adequate foundation [laid by voir dire], counsel cannot exercise
sensitive and intelligent peremptory challenges. And no one should
understand the facts and nuances of a particular case better than the
lawyers litigating it.
The proposed amendments to Rule 47 are written to ensure judicial
control. Under the committee's draft, the lawyer is allowed to
supplement the court's voir dire. With an adequate voir dire by the
trial judge, these lawyers will seldom need to ask additional
questions. Moreover, a judge's control of attorney questioning would
be subject only to an abuse of discretion standard of review.
Relatedly, a recent FJC study shows very little difference in the
time spent on voir dire when the judge allows the attorney to
supplement its questions. The study shows a steadily growing majority
of courts now allowing some direct attorney questioning, and the
proposed changes should not alter their existing practices.
The Standing Rules Committee will consider approving publication for
comment amendments to Rule 47 at its July 1995 meeting simultaneously
with expected similar proposed amendments to Criminal Rule 24. If
approved, the proposed amendments would be published for public
comment in early fall 1995.
Q: Do you have any concerns over direct Congressional involvement in
the rulemaking process?
A: The federal rules are the legitimate concern of Congress and the
courts. The procedures for notice, comment, meticulous drafting, and
review that produce high quality rule amendments as contemplated by
the Rules Enabling Act have usually persuaded Congress to resist
direct amendment and to listen to the judges and lawyers who work
daily with the real world of the rules. We, in turn, must listen and
For example, a bill was introduced last Congress that would have
required a judge to find that public safety was not affected in every
case involving a request for a discovery protective order. A
scheduled mark-up of the bill was delayed at our request. We have now
drafted an alternative that was approved by the Standing Rules
Committee. It sets forth clear criteria for the judge when
considering requests to dissolve a protective order, rather than
needlessly requiring intensive review up front in all cases.
By allowing the rulemaking process to go forward on this proposal,
all persons that may be affected by the amendment will have an
opportunity for comment. So that when Congress does review it, they
will have the benefit of a thorough and extensive study. We think
Congress will be persuaded that we captured its concerns in a
Q: What challenges do you see the Judiciary facing regarding the
A: The 1988 amendments to the Rules Enabling Act opened up what had
previously been a semi-private process. Under the new procedures,
proposed amendments are subjected to greater public scrutiny, often
producing better rules. On the down side, the process is more
vulnerable to mischief by self-interest groups, who have no
reluctance in importuning Congress for direct action if they are
otherwise not satisfied by the rulemaking process.
Reacting to these end runs to Congress for direct rulemaking presents
a constant challenge. No single response can handle all the different
attempts at direct legislative rulemaking. But it is essential that
we not insulate ourselves from the bar and the public. Instead, we
should and will continue to reach out to the academic, the lawyer,
and congressman. After all, the statutory rulemaking process is a
shared endeavor of distinct branches of government, recognizing and
according to each a proper role. The bar and public are key
participants in this enterprise. I have found that this committee is
blessed with outstanding judges and lawyers, evidenced in part by
their willingness to seek counsel and listen, and its sense that wise
rulemaking is often a refusal to make new rules or amend old ones.
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