Restyling The Federal Rules Of Evidence: U.S. Judicial Conference To Consider Proposal (Part IV)

Progress on the “restyling” of the FRE continues as the U.S. Judicial Conference reviews the recommendation

At its fall 2009 meeting, the U.S. Judicial Conference will consider a recommendation by the Standing Committee on Rules of Practice and Procedure that a proposed version of the restyled Federal Rules of Evidence be released for public comment. If approved by the Conference, this will move forward the process of re-writing the federal rules in a "clear and consistent style." The Advisory Committee is trying to avoid any styling changes that would result in substantive changes. See Restyling The Federal Rules Of Evidence - 2009 (noting standards applied to “restyle” the FRE without proposing substantive changes).

The effort to restyle the evidence rules is part of a larger project to restyle all of the federal rules. The restyling project focuses on making non-substantive changes to the rules of evidence, that will render their operation and implementation clearer.

Genesis of the Restyling Project

As described by the Advisory Committee on Evidence Rules, the history of the restyling project has been underway for a substantial period:

"[I]n the early 1990s, Judge Robert Keeton, who was chair of the Standing Committee, and a committee member, University of Texas Professor Charles Alan Wright, led an effort to adopt clear and consistent style conventions for all of the rules. Without consistent style conventions, there were differences from one set of rules to another, even from one rule to another within the same set. Style varied because a committee seeking to amend a rule did not always consider how another rule expressed the same concept. Style varied based on the membership of a particular advisory committee. And style varied as the membership of the Standing Committee changed over time. Different rules expressed the same thought in different ways, leading to a risk that they would be interpreted differently. Different rules sometimes used the same word or phrase to mean different things, again leading to a risk of misinterpretation. And in other respects, too, rules drafters who were experts in the relevant substantive and procedural areas sometimes did not express themselves as clearly as they might have."
Report of the Advisory Committee on Evidence Rules, May 6, 2009, p. 2/480 (Note: This massive pdf file of more than 100 pages and may take a minute to download.)

Operation Of The Restyling Project

In its recent report to the Standing Committee on Rules of Practice and Procedure, the Evidence Advisory Committee described the way it considered restyling changes:

"The division of responsibility on the restyling projects has conformed generally to the protocol the Stranding Committee has adopted for addressing style issues for a proposed amendment to a rule outside the restyling process. For an amendment outside the restyling project, the relevant Advisory Committee must submit its proposed language to the Style Subcommittee. On style issues, the Style Subcommittee, not the Advisory Committee has the last word. Thus when an Advisory Committee submits a proposed amendment to any rule to the full Standing Committee, the amendment already has gone through a style review, and style issues have been determined by the Style Subcommittee. The Standing Committee chairs have kept the Style Subcommittee small in order to promote consistency. Although the Standing Committee retains the ultimate authority, through the years it has followed the style decisions of the Style Subcommittee, thus ensuring a high level of consistency across all sets of rules."
Report of the Advisory Committee on Evidence Rules, May 6, 2009, p. 3/481 (Note: This massive pdf file of more than 100 pages and may take a minute to download.)

Standing Committee Approval Of Restyled FRE

The Standing Committee divided the rules into three sections for its review. It completed its review of the first set (FRE 101-415) in Spring 2008. The second set (FRE 501-706) was approved at its January 2009 meeting. Finally, the third set was considered in April:

"At its April 2009 meeting [when] the Advisory Committee approved the restyling of the final third of the rules (Rules 801-1103).... The Committee addressed each rule separately. The Committee then doubled back to all of the prior rules to ensure consistency throughout the entire set and to address global issues such as how to refer to a writing in a manner that would include its electronic form and how to refer to a public office or agency. These and similar matters were handled through a new set of definitions in proposed Rule 101(b). Finally, the Committee approved proposed Committee Notes conforming to the template and general approach of the Committee Notes to the restyled Civil Rules. The Committee delegated to the Reporter, the Style Consultant, and the Chair the authority to compile and implement the Committee’s many decisions and to ensure that no new inconsistencies were introduced. Two of the Style Committee’s three members attended and participated fully in the Advisory Committee meeting.”
Report of the Advisory Committee on Evidence Rules, May 6, 2009, p. 6/484 (Note: This massive pdf file of more than 100 pages and may take a minute to download.)

If the Judicial Conference decides to publish the restyled FRE for public comment, the closing date for the public comments would be due by February 2010. Then based on the comments received, the Advisory Committee would make final recommendations as to the text of the restyled FRE.

The currently available drafts of the restyled rules are provided at the following links:

  1. FRE 101-415 (Appendix C to the Evidence Committee Report on May 12, 2008)
  2. FRE 501-706 (Report of the Advisory Committee on Evidence Rules (Oct. 23-24, 2008))
  3. FRE 801-1104 (Report of the Advisory Committee on Evidence Rules (April 23-24, 2009))

Prior Blog Posts

For prior posts on Restyling The Federal Rules Of Evidence, see Part I, Part II, and Part III.

Federal Rules of Evidence