Clarity and the Federal Rules of Civil Procedure: A Lesson from the Style Project
Lisa Eichhorn*
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I. Introduction
At the stroke of midnight on December 1, 2007, the Federal Rules of Civil Procedure both changed completely and did not change at all. As a result of the Style Project, a monumental undertaking of the Judicial Conference’s Standing Committee on Rules of Practice and Procedure, a full stylistic revision replaced the existing text of the civil rules with the aim of “conveying unchanged meaning more clearly and more efficiently.”1 As a veteran teacher of both Civil Procedure and Legal Writing, I am by turns elated and angst-ridden about this change, but I remain in awe of those who have been so undaunted and diligent as to bring it about.
I am not an experienced drafter of rules, and this article does not attempt to extract a long list of specific drafting tips from the work of the Style Project, nor does it undertake a rule-by-rule critique of the restyling. The best drafting advice to emerge from the Style Project has already been memorialized by the consultants who participated in the effort, 2 and the best critique of the restyling will come from the combined experiences of the lawyers and judges who will navigate, interpret, and apply the new language in the years to come.3
Instead, this article treats the Style Project’s revision of the civil rules as a case study to examine the place of plain language techniques in the legislativeand rule-drafting process. The after-the-fact, non-substantive nature of the Style Project’s revision is extraordinary and will no doubt generate some complex interpretive problems. Nevertheless, comparisons of old and restyled rule language reveal that plain language techniques can play a beneficial role in the ordinary rule-drafting process. Such techniques, when intelligently and flexibly employed, need not hinder a rule’s ability to convey complex content, to function effectively within an existing legal context, or to communicate to an appropriate audience. Time will tell if the Style Project has succeeded at every turn in the extraordinary task of preserving the precise meaning of the civil rules while clarifying the expression of that meaning. Meanwhile, the restyled rules already demonstrate that in more ordinary rule-drafting and rule-revising scenarios, where drafters must express new substantive meaning as clearly as possible, the style fostered by plain language techniques can convey detailed, sophisticated content effectively.
Part II of this Article supplies background information on the Style Project, explaining the work of its participants and the process by which the Project’s revised civil rule language was approved. Part III of this Article then describes plain language drafting techniques and explains debates in the academic literature regarding the place of plain language principles in legislative and rule drafting. Part IV uses the restyled civil rules as a case study to examine the possibility of adapting plain language drafting techniques to the complexity, context, and audience of a code of procedural rules. Part V then offers some concluding thoughts.
II. Background on the Style Project
A. The Role of the United States Judicial Conference in Federal Rulemaking
The Style Project is an ongoing effort operating under the auspices of the United States Judicial Conference. The Judicial Conference is presided over by the Chief Justice of the United States, and its membership consists of the chief judges of each federal circuit, the chief judge of the Court of International Trade, and one elected district court judge from each circuit.4 The body is charged by statute, among other duties, to “carry on a continuous study of the operation and effect of the general rules of practice and procedure” in the federal courts.5 These rules include the Federal Rules of Appellate Procedure, the Federal Rules of Bankruptcy Procedure, the Federal Rules of Civil Procedure, the Federal Rules of as the Old Rules?, http://writ.news.findlaw.com/dorf/20070718.html (July 18, 2007). Criminal Procedure, and the Federal Rules of Evidence.6 With respect to these rules, the Judicial Conference recommends amendments and additions to the Supreme Court when such changes would “promote simplicity in procedure, fairness in administration, the just determination of litigation, and the elimination of unjustifiable expense and delay.”7 If, before May 1st, the Supreme Court approves the new rules or amendments recommended by the Judicial Conference, the new rule language automatically takes effect unless Congress enacts legislation before December 1st of the same year to modify or reject the approved language or to defer its effective date.8
With respect to its study of court rules, the Judicial Conference operates through its Standing Committee on Rules of Practice and Procedure, commonly known as the Standing Committee.9 This committee in turn coordinates the work of five advisory committees, each of which performs the groundwork of studying one of the five codes of federal rules and of recommending amendments when necessary to “maintain consistency and otherwise promote the interests of justice.”10 Members of both the Standing Committee and of the five advisory committees include “federal judges, practicing lawyers, law professors, state chief justices, and representatives of the Department of Justice.”11
B. The Genesis of the Style Project
In 1992, Judge Robert E. Keeton, then-chair of the Standing Committee, envisioned an exhaustive revision of all codes of federal rules “to make them clearer and easier to understand.”12 Indeed, Judge Keeton’s philosophy of rule drafting emphasizes clarity as a principal virtue:
Federal Rules of Practice and Procedure ought to be userfriendly. This is the prime characteristic of good rules of procedure. They should be easy to read and understand — as clear in content and meaning as it is possible to make them, and as crisp and readable as clarity permits.13
To implement this vision, Judge Keeton created a Style Subcommittee and recruited legal writing expert Bryan A. Garner as a consultant to assist in the Style Project, an ambitious undertaking that would eventually involve not only reviewing proposed rule amendments for stylistic effectiveness but also revising — one by one — the codes of federal rules so as to achieve stylistic consistency and optimal clarity without changing substantive meaning.14 By 1994, Garner and the Style Subcommittee had developed draft revisions of the Federal Rules of Appellate Procedure and the Federal Rules of Civil Procedure.15 However, the civil rules revision process was put on hold shortly thereafter following membership changes on the Standing Committee and its Style Subcommittee.16
Meanwhile, the Style Project continued to focus on the Federal Rules of Appellate Procedure and began work on the Federal Rules of Criminal Procedure.17 Revisions of both sets of rules were eventually approved by the Judicial Conference, which recommended the revisions to the Supreme Court.18 Exercising its power under the Rules Enabling Act,19 the Supreme Court approved the new appellate rules in April 199820 and the new criminal rules in April 2002.21 Because Congress did not enact legislation to block the newly revised rules, the restyled appellate rules took effect on December 1, 1998,22 and the restyled criminal rules took effect on December 1, 2002.23
C. Drafting the Restyled Civil Rules
Eventually, the Standing Committee and the advisory committee on the Federal Rules of Civil Procedure returned to the task of restyling the civil rules. Consultant Joseph Kimble, a legal writing scholar, with assistance from consultant Joseph F. Spaniol, Jr., a retired clerk of the United States Supreme Court, created a new working draft of the civil rules, following drafting guidelines that had been generated and memorialized by Bryan Garner during the appellate rules project.24 The proposed changes were then reviewed, respectively, by prominent civil procedure scholars, the Standing Committee’s Style Subcommittee, and subcommittees of the civil rules advisory committee.25 Each review by each of these groups was aimed at preserving the substantive meaning of the current rules while increasing the clarity of the text.26 Each group’s review resulted in the consultants’ creation of a revised draft that was then passed along to the next group.27
The resulting version of the proposed rules then passed through the full civil rules advisory committee and the full Standing Committee.28 The emerging draft was then published for public comment in February 2005.29 After reviewing the approximately twenty-five comments submitted,30 the Style Subcommittee, its academic consultants, and the entire advisory committee again revised and refined the proposed draft of the rules. At that point, the restyling process had taken two and one-half years and “produced more than 750 documents.”31 After the drafters studied feedback received during the public comment period and decided upon some further changes, the resulting draft of the restyling amendments again passed through the Standing Committee32 and then went on to be approved by the full Judicial Conference.33 The Supreme Court approved the full set of restyling amendments and transmitted them to Congress on April 30, 2007.34 Because Congress did not step in and pass legislation to block them, the amendments became effective on December 1, 2007.35
An advisory committee note to restyled Rule 1 explains that “[t]he language of Rule 1 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.”36 This note, with an appropriate change of rule number in its first sentence, appears after the restyled text of each rule.
* © Lisa Eichhorn 2008. Professor of Law, University of South Carolina. I would like to thank the University of South Carolina School of Law for funding my research on this project. I would also like to thank all of the Civil Procedure students I have taught over the last thirteen years at West Virginia University, the University of Denver, and the University of South Carolina for helping me refine my understanding of the Federal Rules of Civil Procedure.
1 Edward H. Cooper, Restyling the Civil Rules: Clarity Without Change, 79 Notre Dame L. Rev. 1761, 1762 (2004).
2 See generally Bryan A. Garner, Guidelines for Drafting and Editing Court Rules (Admin. Off. of the U.S. Courts 1996); Joseph Kimble, Lessons in Drafting from the New Federal Rules of Civil Procedure (pts. 1-5), 86 Mich. B.J. 62 (Aug. 2007), 86 Mich. B.J. 48 (Sept. 2007), 86 Mich. B.J. 44 (Oct. 2007), 86 Mich. B.J. 46 (Nov. 2007), 86 Mich. B.J. 50 (Dec. 2007) [hereinafter Kimble, Lessons in Drafting]; Joseph Kimble, Guiding Principles for Restyling the Federal Rules of Civil Procedure (Part 1), 84 Mich. B.J. 56 (Sept. 2005) [hereinafter Kimble, Principles (Part 1)]; Joseph Kimble, Guiding Principles for Restyling the Federal Rules of Civil Procedure (Part 2), 84 Mich. B.J. 52 (Oct. 2005) [hereinafter Kimble, Principles (Part 2)].
3 Civil procedure scholar Michael C. Dorf has observed that “[w]hether the re-styled Rules lead to greater clarity or greater confusion will ultimately depend on how much common sense the courts use in interpreting them.” Michael C. Dorf, Meet the New Federal Rules of Civil Procedure: Same
4 28 U.S.C. § 331 (2000).
5 Id.
6 James C. Duff, The Rulemaking Process: A Summary for the Bench and Bar, “The Rules Committees,” http://www.uscourts.gov/rules/proceduresum.htm (Oct. 2007).
7 28 U.S.C. § 331.
8 See 28 U.S.C. § 2074 (2000) (providing that new rules transmitted to Congress by the Supreme Court before May 1 become effective “no earlier than December 1” of the same year, so long as Congress does not “otherwise provide[] by law”).
9 Duff, supra n. 6, at “The Rules Committees.”
10 28 U.S.C. § 2073(b) (2000).
11 Duff, supra n. 6, at “The Rules Committees.”
12 Memo. from Lee H. Rosenthal, Chair, Advisory Comm. on Fed. R. of Civ. Proc., to David F. Levi, Chair, Standing Comm. on R. of Prac. & Proc., Report of the Civil Rules Advisory Committee 21 (June 2, 2006) (available at http://www.uscourts.gov/rules/Reports/CV06-2006.pdf).
13 Robert E. Keeton, Preface, in Garner, supra n. 2, at i.
14 Id. at iii-iv.
15 Id. at iii.
16 Id.
17 See Memo. from James K. Logan, Chair, Advisory Comm. on App. Rules, to Alicemarie H. Stotler, Chair, and Members of the Standing Comm. on R. of Prac. & Proc., 2 (Dec. 12, 1995) (available at http://www.uscourts.gov/rules/Reports/AP12-1995.pdf) (describing the ongoing process of restyling the appellate rules); Memo. from W. Eugene Davis, Chair, Advisory Comm. on the Fed. R. of Crim. Proc., to Anthony J. Scirica, Chair, Standing Comm. on R. of Prac. & Proc., Report of the Advisory Committee on Criminal Rules 2 (May 10, 2001) (available at http://www.uscourts.gov/rules/Reports/CR05-2001.pdf) (describing the ongoing process of restyling the criminal rules, which had begun in 1998).
18 See Duff, supra n. 6, at “How the Rules Are Amended: Step 5. Judicial Conference Approval” (“The Judicial Conference normally considers proposed amendments to the rules at its September session each year. If approved by the Conference, the amendments are transmitted promptly to the Supreme Court.”).
19 28 U.S.C. § 2072 (2000) (granting the Supreme Court “the power to prescribe general rules of practice and procedure” applicable in the federal courts).
20 U.S. S. Ct. Or., 523 U.S. 1147, 1147 (Apr. 24, 1998).
21 U.S. S. Ct. Or., 535 U.S. 1157, 1157 (Apr. 29, 2002).
22 See U.S. S. Ct. Or., 523 U.S. 1149, 1149 (Apr. 24, 1998) (noting effective date of adopted rule amendments).
23 See U.S. S. Ct. Or., 535 U.S. 1159, 1159 (Apr. 29, 2002) (noting effective date of adopted rule amendments).
24 See Kimble, Principles (Part 1), supra n. 2, at 56 (explaining the process and noting the drafters’ reliance on Bryan A. Garner’s style guide, Garner, supra n. 2).
25 See id. (explaining the process of serial review and revision).
26 Report of the Judicial Conference Committee on Rules of Practice and Procedure to the Chief Justice of the United States and Members of the Judicial Conference of the United States 20 (Sept. 2006) (available at http://www.uscourts.gov/rules/Reports/ST09-2006.pdf) [hereinafter Standing Committee Report of Sept. 2006].
27 Kimble, Principles (Part 1), supra n. 2, at 56.
28 Id.
29 Standing Committee Report of Sept. 2006, supra n. 26, at 21.
30 The comment letters are available at http://www.uscourts.gov/rules/CV%20Rules% 202005.htm (last accessed May 12, 2008).
31 Standing Committee Report of Sept. 2006, supra n. 26, at 21.
32 Id. at 25.
33 Memo. from James C. Duff, Sec., Jud. Conf. of the U.S., to the C.J. of the U.S. and the Assoc. JJ. of the S. Ct., Transmittal of Proposed Amendments to the Federal Rules of Civil Procedure 1 (Dec. 21, 2006) (available at http://www.uscourts.gov/rules/supct1106/Duff_CV_Memo.pdf).
34 Order of the Supreme Court (Apr. 30, 2007) (available at 9 in http://www.uscourts.gov/ rules/supct1106/Trans-Orders.pdf).
35 Id. at ¶ 3; see also 28 U.S.C. § 2074 (providing that new rules transmitted to Congress by the Supreme Court before May 1 become effective “no earlier than December 1” of the same year, so long as Congress does not “otherwise provide[] by law”).
36 Fed. R. Civ. P. 1 advisory comm. n.