Trial Magazine

Organizations such as the U.S. Chamber of Commerce and Lawyers for Civil Justice, an organization serving corporate defense counsel interests, are increasingly turning to the federal rulemaking process as an alternative to legislation to push tort “reform.”

The Judicial Conference’s Advisory Committees on Rules of Evidence and Rules of Civil Procedure are contemplating rules changes. While many amendment suggestions come from judges and academics, tort reform organizations are using the rules process to propose their own.

Civil rules proposals. Last June, the Chamber made its third request that the Civil Rules Committee take up a proposed amendment to mandate litigation funding disclosure as part of discovery. The only difference between this request and its two previous ones is that 29 additional tort reform organizations supported the third request. It also followed an unsuccessful attempt during the last Congress to get the Senate to restrict funding sources to plaintiff firms.

Lawyers for Civil Justice also submitted a request for a comprehensive rulemaking on multidistrict litigation (MDLs). Parts of the proposal are in H.R. 985, the “Fairness in Class Action Litigation Act,” which passed the House last year but stalled in the Senate. The MDL proposal includes amending multiple rules of civil procedure to

• require plaintiffs to plead individual claims with particularity (FRCP 7)
• require each plaintiff to file a separate complaint and pay a separate filing fee (FRCP 20)
• require early evidentiary support of facts and injuries and disclosure of lead generators and aggregators and litigation funding (FRCP 26)
• require all parties to confidentially consent to bellwether trials (FRCP 42)
• provide for immediate appellate review of Daubert motions, preemption motions, decisions to proceed with bellwethers, judgments in ­bellwethers, and more (FRCP 54).

The Committee has appointed a subcommittee to study the issues raised in the proposals over the next few months. The Civil Rules Committee also recently looked at a detailed proposal on FRCP 30(b)(6), which would have greatly changed how corporate depositions are taken, addressing issues such as supplementation, objection, and contention questions. A subcommittee met with AAJ members at the annual convention in Boston and carefully considered the detailed comments many members filed. A proposal circulated at the Civil Rules Committee’s November meeting was substantially revised, ­substituting a directive to Rule 30(b)(6) that requires consultation when a deposition is noticed for the original’s more controversial measures. The subcommittee will refine the proposal for consideration at its next meeting.

Evidence rules proposals. The Evidence Committee is considering multiple proposals that are at various stages:

• The Committee is seeking comments through Feb. 15 on amendments to FRE 807, the residual exception to the hearsay rule. The amendments would define “trustworthiness” as a combination of the circumstances under which the statement was made and any corroborating evidence. Written notice must be provided to an adverse party.
• Last year, the Committee sought input on whether audiovisual statements are not hearsay. It is considering whether to move forward.
• The Committee is considering proposed amendments to eliminate impeachment by evidence of prior criminal conviction (abrogating FRE 609); a rule on illustrative aids (adding to FRE 611); and new amendment options on forensic experts.

The Evidence Committee also held a symposium on forensic experts and Daubert. Judges are concerned about the time-consuming nature of Daubert challenges, and it is considering what, if anything, should be done.

The potential rules changes touch a broad array of practice areas. For more information, please contact me.

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.