Trial Magazine

Our advocacy efforts don’t just occur on the Hill. The Judicial Conference, the policymaking arm of the U.S. courts, regularly considers amendments to the Federal Rules of Civil Procedure (FRCP) and the Federal Rules of Evidence (FRE). While the Judicial Conference’s ­rulemaking committees cannot be lobbied like Congress, it is vitally important that AAJ and plaintiff lawyers participate in the rulemaking process.

Under the Rules Enabling Act, Congress gave the Judicial Conference the power to amend the FRCP and FRE. The Judicial Conference has delegated its rules work to the Committee on Rules of Practice and Procedure, known as the Standing Committee, which has five subject-specific advisory committees. The advisory committees meet twice a year to consider and work on amendment suggestions, which are submitted from a variety of sources, including trade associations, judges, law professors, and lawyers.

Proposed amendments are sent to the Standing Committee for approval and are subject to a six-month public notice and comment period before final revisions are made.

Evidence rules. Many proposals considered by the Advisory Committee on Evidence Rules come from symposia. The committee is holding a symposium on expert witness testimony this fall at Boston College School of Law to examine best practices under FRE 702, including Daubert, and specifically how courts should address the reliability of nonscientific or “­soft-science­” experts.

Additionally, a proposed amendment to FRE 807, the residual exception to hearsay, will be available for public comment in August. The committee believes the amendment will expand the residual exception and offset any contraction of available evidence resulting from changes to the ancient documents exception to the hearsay rule (FRE 803(16)), which are scheduled to go into effect on Dec. 1.

The original proposed amendment to FRE 803(16) would have eliminated the ancient documents exception: If a document is more than 20 years old and appears authentic, it is admissible for the truth of its contents. Eliminating the exception would have disproportionately affected plaintiff attorneys who handle toxic tort cases and who represent sexual assault victims. Under the final amendment, only documents created before Jan. 1, 1998, will still be considered ancient documents.

Civil rules. The Advisory Committee on Civil Rules has also been busy. In February, it completed a notice and comment period on proposed changes to Rule 23 on class actions. The process was very collaborative, with the subcommittee seeking input from interested parties—and even traveling to AAJ’s 2015 Annual Convention to hear from plaintiff class action lawyers.

The proposed amendment addresses electronic notice, what information must be provided to a court to determine whether settlement notice should be given to class members, new rules for dealing with objectors, and appeals. If the process for approving this amendment continues uninterrupted, the amendment would be effective Dec. 1, 2018.

Last fall, the Civil Rules Committee began reviewing Rule 30(b)(6) corporate depositions. While it has not committed to amending the rule, it recently asked for input on several topics, including whether Rule 30(b)(6) statements are judicial admissions, adding a provision for objections to Rule 30(b)(6), and limiting the duration and number of depositions. Comments and suggestions are due by Aug. 1. For more information, visit https://tinyurl.com/m5fnukc.

Following this process can seem like navigating a maze, but AAJ is here to guide you.

Susan Steinman is AAJ’s senior director of policy and senior counsel. She can be reached at susan.steinman@justice.org. To contact AAJ Public Affairs, email advocacy@justice.org.