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Meet the New Rules, (Not the) Same as the Old Rules

The restyled Arizona Rules of Civil Procedure seek to promote access to the courts and the resolution of cases without unnecessary cost, delay, or complexity.

 

Arizona Attorney

A modified version of this article appears in the December 2016 issue of the Arizona Attorney magazine, published by the State Bar of Arizona.

 

In the spring of 2014, Chief Justice Scott Bales (then, Vice Chief Justice) asked if I would be interested in co-chairing, with David Rosenbaum (Osborn Maledon), a project to restyle the Arizona Rules of Civil Procedure (the “Civil Rules”). The Chief Justice indicated that, in furtherance of the Court’s Access to Justice Strategic Agenda, efforts were underway to restyle each of Arizona’s major rule sets. As Arizona’s Rules of Evidence and Rules of Civil Appellate Procedure were already revised, the Court was turning its eye toward the Civil Rules, with the Criminal Rules and Family Law Rules to follow.

I asked the Chief Justice what his expectations were with respect to the scope and timing of the project. He said that the primary objective was to rewrite the Civil Rules to make them easier to read and understand, but that we should not shy away from opportunities for procedural innovation. He further explained that the group would be convened sometime in late 2014, and that a petition should be filed by January 10, 2016. Privately questioning whether this deadline could be met, I told him I would like to be part of the effort and conveyed my thoughts as to how the project might best be approached. Then, the realization of what the coming years would entail sank in.

However ambitious the undertaking, a number of factors worked in its favor: (1) prior restyling initiatives and rules projects had revealed a deep pool of hardworking and knowledgeable lawyers and judges in Arizona likely to lend their talents to the task; and (2) restyled Federal Rules of Civil Procedure had been adopted in 2007, furnishing a solid foundation upon to which build. Working against it, Arizona adopted its Civil Rules in 1955, and no effort had been undertaken since then to update them in any uniform fashion. Instead, Arizona had relied upon a patchwork of piecemeal amendments which ensued over the sixty years that followed.

Against this backdrop, Chief Justice Bales entered Administrative Order No. 2014-116 on November 24, 2014. The Order established the Court’s Task Force on the Arizona Rules of Civil Procedure, Co-Chaired by Mr. Rosenbaum and me, and having as its members nine attorneys, three Superior Court judges, an Arizona Court of Appeals judge, a law professor, and a Clerk of the Superior Court. The Task Force was staffed by Mark Meltzer, of the Administrative Office of the Court, and John Rogers, one of the Court’s Staff Attorneys.

The Order described the Task Force’s mission as follows:

The Task Force shall review the Arizona Rules of Civil Procedure to identify possible changes to conform to modern usage, to clarify and simplify language, and to avoid unintended variation from language in counterpart federal rules. These changes should promote access to the courts and the resolution of cases without unnecessary cost, delay, or complexity. The Task Force shall seek input from various interested persons and entities with the goal of submitting a rules petition by January 2016 with respect to any proposed rule changes.

With the Task Force constituted, we divided ourselves into four workgroups and assigned a segment of the Civil Rules to each. We also adopted drafting guidelines designed to promote our charge from the Court and ensure uniformity of style and voice across the workgroups. The following are several of the more significant guidelines we adopted:

  1. The rules should be written to promote fairness and clarity, and to promote the ability of all litigants, including those representing themselves, to access the courts.

  2. Where no good reason existed to depart from the 2007 stylistic revisions to a counterpart federal rule, adopt the restyled federal wording verbatim.

  3. If the Arizona rule did not have a counterpart federal, revise the Arizona rule consistent with Bryan Garner’s Guidelines for Drafting and Editing Court Rules (“Garner’s Guidelines”).

  4. Where sound policy reasons supported a difference between an Arizona rule and a counterpart federal rule, maintain the difference but nevertheless revise the Arizona rule consistent with Garner’s Guidelines.

  5. Revise and restructure the rules, and adopt headings and subheadings that are consistent with Garner’s Guidelines, and which enhance clarity, readability, and ease of usage.

  6. Change all references to “shall” in the current rules to either “must,” “should,” “may,” “will” or “is/are,” as the context dictates, with the exception of Rule 56(a), which retains the use of “shall.”

  7. Delete rule comments where they serve no further purpose. However, if some portion of a comment is necessary to understand a rule, add language to the rule to capture the substance of the comment.

  8. If an Arizona Rule has recently been the subject of substantive revision, do not revisit the substance.

  9. Look for and eliminate archaic practices and traps for the unwary if they serve no identifiable purpose.

  10. Modernize the rules concerning the disclosure and discovery of electronically-stored information to meet the realities of identifying, handling, and producing the information in a rational and cost-effective fashion.

Over the course of 2015, the Task Force held monthly public meetings. Its workgroups met during intervals between these meetings to move their work product forward. Each rule was dissected, examined, and redrafted for consideration and approval by the full Task Force. As of January 2016, the Task Force had met sixteen times and the workgroups had met more than forty times. Taking into account drafting, research, and preparation that preceded each meeting, this collective effort involved thousands of hours of time.

In September of 2015, the Task Force made a “vetting draft” of the proposed rules available to every member of the Arizona Bar and Judiciary, and various identified stakeholder groups, and invited pre-petition comments. Between the release of the vetting draft and January of 2016, the Task Force and its workgroups continued to meet to fine-tune the proposed new rules and consider the comments received. Also during this period, the State Bar’s Civil Practice and Procedure Committee formed subcommittees to study and critique the vetting draft.

The Task Force filed its Petition on January 7, 2016. A staggered comment period with two rounds of comments followed and, after considering each round of comments, the Task Force filed first an Amended Petition, and later a Reply.

On September 2, 2016, the Court entered its Order on the Task Force’s Petition, adopting the new Civil Rules effective January 1, 2017, and bringing to a close the work of the Task Force and the marathon endeavor we embarked upon less than two years earlier. Notably, the Court also adopted a disposition table to aid readers in finding rules and subparts that had been moved or otherwise renumbered, and conforming amendments to various rules in other rule sets which reference the Civil Rules.

As is the case with any undertaking of this magnitude, I am certain mistakes have been made that will reveal themselves over time and require correction. Yet I am equally confident that Arizona’s restyled Civil Rules represent a significant achievement that will improve the functioning of Arizona’s civil justice system and eliminate many barriers to justice faced by those who litigate in our courts.

In addition to co-chairing the Supreme Court’s Task Force on the Arizona Rules of Civil Procedure, Bill Klain is a member of the Court’s Advisory Committee on the Rules of Evidence and a former Chair and current member of the State Bar’s Civil Practice and Procedure Committee.