Thank you for sharing!

Your article was successfully shared with the contacts you provided.
You may not have heard this, but they’re about to change the Federal Rules of Civil Procedure. The existing rules, it seems, use obsolete language that has not kept up with the times or the practice of law. So, say the pundits in charge of such matters, we will update the rules. We’ll use plain language that will better convey the letter and spirit of the rules and which modern attorneys can understand more easily. Honest. Other industries have tried this kind of thing in the past. Ten or 15 years ago, insurers decided that they would use plain language insurance forms, which, to borrow a phrase, would better convey the letter and the spirit of the policy and which modern attorneys could understand more easily. Proving once again that the road to hell is paved with good intentions, this exercise in plain language turned out to produce waves of litigation as policyholders and insurers went to court to try to figure out just what it was that the policies actually said. Apparently, plain language and clear language aren’t necessarily the same. I’m not here to be just another Cassandra predicting the imminent demise of this noble effort to bring our rules of procedure into the 21st century. After all, when the Federal Rules of Civil Procedure were rolled out way back in the mid-20th century, the importance of words such as booty-licious (that now appears in the Oxford English Dictionary), gangsta and phishing (the scam, not the band) in the practice of law had not yet occurred to the drafters. Their idea of grammatical progress was to get rid of concepts such as qui tam and nisi prius, which, as I reflect upon it, was also a good thing. But whatever your take on this is, I’ve seen a preview of the new rules, and I’d like to share some real pieces of genuine innovation that should make your future appearances in federal court simpler and easier. The first big change you’ll note is to the rules governing pleadings. Finally conceding that lawyers never use one word when four will do and recognizing the continuing budget crisis in our federal court system, you no longer will pay a single filing fee to file a complaint in federal court. After the new rules are enacted, plaintiffs will pay by the word when they file a complaint. Recognizing that our kids can squeeze everything important they need to say into a 150-character text message on their cell phones, the new rules give a pleader 150 characters per count in which to make a short, plain statement of the basis for relief. After that, however, the meter clicks on. I’m not privy to the exact actuarial estimates the drafters used to come up with this plan, but one insider has estimated that every federal judge would be a millionaire if this system comes into use. Your response to a complaint also changes under the new rules. Recognizing that denial is now a mental state rather than a defensive pleading, the drafters also want to streamline how we respond to a complaint. Gone are affirmative defenses. Tomorrow’s response will consist of excuses, evasions and justifications. As anybody with a teenager knows, this is how the world works anyway, so getting rid of those stodgy old defenses doesn’t do anything more than bring federal practice into line with, well, life, which is a good thing. MAKING WORDS COUNT The new rules also change the way we do discovery. The drafters recognized how the Internet changed our lives and realized that lawyers could use it to make discovery more user-friendly. No more trudging over to someone else’s office to be herded into an overheated “war room” with no ventilation, coffee or restroom just to read documents. In today’s post-modern, Wi-Fi world, you’ll share case information the way everyone else does: file-sharing software. Anyone in litigation in the federal courts will download documents to “Docster,” the sophisticated new file-sharing system called for in the rules, and anybody else who is interested in your production can download your files free of charge. No need for those cumbersome requests for production, no need to fuss with Bates labels, and no hassle carting boxes of documents around. Even better, all you have to do is hire your own teenagers to download the files. How cool is that? The final big change you should be aware of also has to do with discovery. You all know what problems there have been with discovery over the years, and so do the drafters of the new rules. That’s why entry of a default judgment for noncompliance is no longer the end of the road. Now, if you mess with the court on discovery, the judge can select the nuclear option (nu-cu-lar option in the Western District) ending your case and effectively squelching any further chance you would have to be a repeat offender. Don’t laugh. Credible reports of judges with WMDs have already surfaced. I think you’ll agree that all of these changes help to bring the Federal Rules of Civil Procedure into the 21st century where they belong. And if you happen to have a Geiger counter, could you be my local counsel? Tom Alleman, a shareholder in the environmental and insurance industry practice groups at Winstead Sechrest & Minick in Dallas, pronounces nuclear correctly, so his views clearly are not necessarily those of the firm, its clients or George Tenet.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.