Restyling The Federal Rules Of Evidence: Public Comment Period Begins (Part V)

Public comment period begins on draft restyled FRE with hearings scheduled and comments due by February 16, 2010

Committees of the U.S. Judicial Conference have been considering restyling the FRE. The process for developing a draft of the restyled rules has been completed. The U.S. Judicial Conference Committee on Rules of Practice and Procedure has published the draft for public comment, which will close on February 16, 2010.

Until this public comment period expires, final approval remains in abeyance. Under the Rules Enabling Act, 28 U.S.C. § 2071- 2077, and the proposed schedule, the earliest the Restyled FRE would become effective is on December 1, 2011, according to a Brochure prepared by the Administrative Office of the U.S. Courts on August 2009.

At its June 1-2, 2009 meeting the U.S. Judicial Conference Committee on Rules of Practice and Procedure, while not approving of the drafts did authorize publication for public comment a complete restyling of the Federal Rules of Evidence (Note: This massive pdf file of more than 100 pages and may take a minute to download.). After public comments are received, the U.S. Judicial Conference Committee on Rules of Practice and Procedure will consider whether to approve the restyled rules as part of the rule making process. The Advisory Committee on Evidence Rules had approved restyling FRE 101-415 in June 2008, and FRE 501-706 in January 2009. See Report of the Advisory Committee on Evidence Rules (May 6, 2009). This final approval facilitated the current posting of the restyled rules on August 12, 2009 for a six-month period which will end on February 16, 2010. 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.)

Restyling Objectives

The restyled rules are not intended to make substantive changes to the FRE but would make grammatical, technical and consistency modifications to the rules. See Restyling The FRE (Part I) (noting judicial committee’s “working principle” in determining when change is substantive). The Administrative Office of the U.S. Courts has offered the following background concerning the restyling of the FRE:

“The restyling of the Federal Rules of Evidence follows the same drafting guidelines that were used in the restylings of the Rules of Appellate Procedure in 1998, Rules of Criminal Procedure in 2002, and Rules of Civil Procedure in 2007. The twin aims of the restyling effort are: (1) to make the rules easier to read and understand; and (2) to make style and terminology consistent throughout the rules.

“The proposed changes are intended to be stylistic only. The amendments are not intended to change the result in any ruling on the admissibility of evidence. In fact, the Committee made special efforts to reject any proposed style amendment that might result in a substantive change to the rule. The Committee considered a change substantive if: (1) it could lead to a new result as to admissibility; (2) it could lead to a change in the procedure that guides determinations of admissibility; (3) the structure of a rule is amended in such a way that the approach courts and litigants have traditionally used to think and argue about admissibility is altered; or (4) it changes a ‘sacred phrase’ – a phrase that has become so familiar in practice that its alteration would be disruptive.

“These stylistic changes take several forms. First, formatting changes present the rules more clearly. Formatting changes include: (1) progressively indenting subparagraphs and adding headings; (2) using ‘hanging indents;’ (3) substituting vertical lists for horizontal lists; and (4) breaking rules into constituent parts. Without changing any words, this kind of formatting results in a body of rules that is graphically structured and easier to read and understand. Second, the wording of many rules has been changed. (1) The restyled rules reduce confusion resulting from the use of inconsistent terms by using the same words to express the same meaning. (2) The restyled rules minimize the use of words that are inherently ambiguous. For example, the word ‘shall’ is removed from the rules because it is not generally used in contemporary written English. It is also subject to widely varying definitions. The restyled rules replace ‘shall’ with ‘must,’ ‘may,’ or ‘should,’ depending on the context and the established interpretation of each rule. (3) The restyled rules minimize the use of unnecessary emphasis-adding ‘intensifiers’ because these expressions are often redundant and may create negative implications for other rules. Their removal does not affect the substantive meaning of the rules. (4) Outdated words and concepts are removed. Finally, to achieve greater clarity and simplicity, the subdivisions within certain rules have been rearranged. Each rule, however, retains its original number to reduce the impact these changes may have on research.”
See Preliminary Draft of Proposed Amendments to the Federal Rules of Practice and Procedure, Administrative Office of the U.S. Courts, James C. Duff, Director, A Summary For Bench And Bar (August 2009).

Submitting Comments:

The proposed Restyled Rules are available on the Federal Evidence Blog in the following sets:

Comments on these proposals will be received by the Secretary to the Standing Committee. The deadline for submission is no later than February 16, 2010.

Electronic Comments

Comments may be sent electronically by using the following email address: or by using the form Submit Comments

Mailed Comments

Written comments should be mailed to:
Peter G. McCabe, Secretary
Committee on Rules of Practice and Procedure
of the Judicial Conference of the United States
Thurgood Marshall Federal Judiciary Building
Washington, D.C. 20544

Testimony

Public comment can also be submitted by testifying at a public hearing regarding the restyling proposal. At this time, the Advisory Committee on Evidence Rules is scheduled to hold three public hearings at the following locations for this purpose:

  • Phoenix, Arizona (January 5, 2010)
  • San Francisco, California (January 29, 2010)
  • New York City, New York (February 4, 2010)
(Note: Requests to appear at a public hearing must normally be received by the Secretary to the Standing Committee no later than 30 days before the scheduled date for the public hearing.) For more information, see Memorandum to the Bench, Bar, and Public on Proposed Style Amendments to the Federal Rules of Evidence (August 2009).

Pending Steps To Final Adoption

While the process of restyling the FRE has been a multi-year project, once the public comments have been received, there still remains several steps before the changes would become effective. This would require the restyling be approved, with or without revision, by:

  • The Advisory Committee on Evidence Rules
  • The U.S. Judicial Conference Committee on Rules of Practice and Procedure (Standing Committee)
  • The Judicial Conference Of the United States
  • The U.S. Supreme Court
  • Congress does not alter the proposed restyling

Observations From The Drafting Consultant On The FRE Restyling

Professor Joseph Kimble of the Thomas Cooley Law School served as a consultant on the FRE restyling. He recently shared with the Federal Evidence Blog a useful link to an article providing insight into the restyling process for the FRE. In the article, "A Drafting Example from the Proposed New Federal Rules of Evidence," August 2009 Michigan Bar Journal 52-53, the professor reminds readers that:

“Nobody would claim that the restyled rules are perfect; on a project like this, you can always find pieces that could have been— and perhaps still will be — improved. Naturally, though, I do think that the new rules are far better.”
The article provides an analysis of one rule, noting deficiencies in the current version of FRE 609(a)-(b), and shows how the restyled version overcomes the deficiencies. The professor challenges readers to “see what you think…. [T]ry your hand at the contest that follows” and puts the contestant to the task of restyling the current one paragraph version of FRE 606(a) (Competency of Juror as Witness – At the trial.).

Prior Blog Posts

For prior posts on the restyling of the FRE, see Part I, Part II, Part III, and Part IV. The Rules Amendments Section of FederalEvidence.com also contains a page devoted to the Restyling of the FRE.

Federal Rules of Evidence
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