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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 Civil Rules?
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 Rule 26?
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 12-person jury.
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 consider.
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 workable rule.
Q: What challenges do you see the Judiciary facing regarding the rulemaking process?
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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