Long and Winding Road: How We Reached the 2014
At what point can a procedural
scheme found in the Arizona Rules of Civil Procedure be said
to have outlived its usefulness? When it is divorced from
modern practice? When it presents pitfalls to unwary
litigants and may obstruct their ability to obtain recourse?
How about when parties face dismissal for failing to comply
with trial setting procedures honored only in the breach?
Most experienced civil litigators would argue that such has
been the state of affairs for the past several years under
the Rule 38.1 motion to set and active/inactive calendar
method to case management and trial settings.
Thankfully, relief is at hand. As
Brian Pollock describes in his
companion article appearing
in the February, 2014 issue of
Arizona Attorney magazine,
the Arizona Supreme Court has adopted sweeping amendments to
the Arizona Rules of Civil Procedure that will vastly alter
the manner in which civil cases are managed and set for
trial under the Rules come April 15, 2014.
The Court’s action represents the culmination of a two and a
half year effort from conception to enactment. What follows
is a look at how we got to where we were and an overview of
the rulemaking process leading up to the amendments’
The 1960s, 1970s
In 1965, Uniform Rule V was adopted,
establishing the active/inactive calendar and motions to set
and certificates of readiness.
Under this framework, cases were placed on the inactive
calendar if no motion to set and certificate of readiness
was filed within one year of commencement of the action.
Cases were then subject to dismissal 60 days after placement
on the inactive calendar.
Motions to set and certificates of readiness required
certification that “the parties have completed, or will have
had a reasonable opportunity to complete prior to five days
before the pretrial conference, all [discovery].”
In the late 1970’s, the Maricopa
County Superior Court participated in a nationwide project
aimed at reducing civil case delay in trial courts by having
cases completed within twelve months.
This effort, known as the Civil Delay Reduction Project (the
“CDRP”), had as its objectives:
reducing civil case
affording trial courts scrutiny over
civil cases from inception to disposition,
temporal benchmarks for various stages of civil litigation,
providing firm trial dates upon filing of
certificates of readiness.
In 1978, the Superior Court’s then-Presiding Judge, Robert
Broomfield, requested that the Arizona Supreme Court modify
Rule V of the Uniform Rules of Practice on a pilot project
basis for all cases assigned to four Superior Court judges
(including then-Judge Sandra Day O’Connor), for the duration
of the CDRP.
The Supreme Court granted this request through an Order
issued in December 1978.
These modifications (“the Fast Track Amendments”) altered
Uniform Rule V for cases assigned to these four divisions,
making those cases subject to placement on the inactive
calendar in the absence of the filing of a motion to set and
certificate of readiness within 270 days after case
commencement that certified discovery had been completed.
The 1980s: Fast-Track Goes Statewide
In 1983 the Fast-Track Amendments
were adopted on a statewide basis for all civil and domestic
relations matters, with parties certifying in their motions
to set and certificates of readiness that they either had
completed discovery or would do so within sixty days,
although counties could retain the prior requirement that
the parties certify that they would have a reasonable
opportunity to complete discovery ten days before trial.
The State Bar Committee Note to the Fast Track Amendments
observed that, “Trials are often delayed because the
identity of all trial witnesses has not been seasonably
disclosed or discovery has not been completed,” and that
these amendments sought to implement the CDRP’s policies by
ensuring completion of discovery prior to the filing of a
motion to set and certificate of readiness, and prescribing
procedures for the timely disclosure of witnesses and
Practice, Procedure Changes
Notwithstanding the continued
applicability of the motion to set procedure to all Superior
Court civil cases for the past 30 years, much about civil
trial court practice and procedure has changed during these
three decades. Perhaps most notably, the Court adopted Rule
26.1, Ariz. R. Civ. P., in 1991, permanently and
dramatically altering the landscape of disclosure and
greatly undercutting the need for continued reliance upon
Uniform Rule V(a)’s listing of witnesses and exhibits to
accomplish adequate and timely disclosure. Of equal
significance, while the number of civil actions filed has
grown, civil court trial rates have plummeted, presumably
due to a confluence of circumstances including skyrocketing
litigation costs and the proliferation of ADR as an
effective means for resolving civil disputes short of trial.
Finally, resources have not expanded at a rate sufficient to
make available the requisite number of judges, judges pro
tem and courtrooms necessary for “firm” trial dates to
remain reliably firm as they had been in the past. Thus,
throughout many of Arizona’s counties, judges began
exercising civil case management through Rule 16(b)
scheduling orders, setting trials later in case life-cycles
to avoid trial stacking and provide firm trial dates, and
routinely suspending Rule 38.1 altogether in their matters.
It was against this backdrop that I
came to believe that Rule 38.1’s trial setting and
active/inactive calendar constructs, while well-intentioned
and effective when adopted, no longer served their
identified purposes, formed obstacles to effective case
management with potentially drastic consequences for
litigants, and had become divorced from the realities of
modern civil practice. Thus, in August 2011, in my capacity
as the Chair of the State Bar’s Civil Practice and Procedure
Committee (“CPPC”), I asked its membership generally, and
Judge Peter Swann and Brian Pollock specifically, to
evaluate the continued utility of the Rule 38.1 approach to
case management and trial settings, and, if appropriate, to
craft rule amendments codifying the approaches already
employed in much of our Superior Court.
By mid-2012, the CPPC’s Rule 16/Rule
38.1 subcommittee completed this effort under Brian’s
leadership and with continuous input from the entirety of
the CPPC’s membership, and the work product was taken “on
the road.” Drafts were circulated to stakeholders around
Arizona, input was sought from all quarters, presentations
were made, and the proposed amendments were fine-tuned.
After unanimous approval by the CPPC, the draft case
management and trial setting amendments and accompanying
Petition were vetted through the State Bar Board of
Governors Rules Committee and Board of Governors, with each
body likewise approving them unanimously.
The State Bar filed the Petition on
January 10, 2013, and requested that the Court order a
staggered comment period, which would permit the filing of
an amended Petition if deemed necessary in light of comments
received, followed by yet another comment period.
The Court granted the modified
comment period and, as the initial comment period drew to a
close, a number of comments were filed in opposition to the
Petition by various stakeholders from one county. The thrust
of the opposition was that the current rules operated as
intended in that county, judges in that county preferred to
set trials early in the life of civil cases, and that
participation in ADR should not be mandatory in civil cases
before a trial date could be obtained. In response, the CPPC
prepared and submitted to the State Bar a draft Amended
Petition and revised accompanying rule amendments providing
greater judicial flexibility with respect to the timing of
trial settings and excusing matters from ADR. Nevertheless,
several of the Petition’s critics spoke in opposition to the
draft Amended Petition at an ensuing Board of Governors
meeting, and the Board rejected the draft on a closely
A proposal was then made to file a
revised Amended Petition noting the continued opposition by
some stakeholders and requesting that the Court form a task
force to attempt to reach a consensus among the involved
parties. That proposal was approved by the Board and
resulted in the filing of an Amended Petition.
Pursuant to the Bar’s request, the
Court formed a task force in May 2013 to study the Amended
Petition, consider the criticism voiced in opposition to the
proposed amendments and attempt to resolve this conflict.
The task force, consisting of members of the CPPC, judges
from various courts across the state, court administrators
from several courts, members of the Administrative Office of
the Court and several other interested stakeholders, met
repeatedly from late May through early August.
The task force consulted with the National Center for State
Courts, studied differentiated case management techniques,
gathered data from every county, debated the merit of
various approaches and, ultimately, reached unanimous
agreement on a further amended set of case management and
trial setting rule amendments. The task force filed its
report and recommendations on the Court’s Rules Forum
website and, in late August, the Court ordered the State
Bar’s proposed amendments adopted as modified by the task
force and applicable to all cases filed on or after April
(The rationale for a delayed effective date was so that
efforts could be undertaken to educate the Judiciary and Bar
as to the amendments, and so that appropriate administrative
mechanisms could be developed to permit implementation of
the amendments in the Superior Court.)
Finally, in the wake of concerns
raised with respect to confusion that might ensue from
having pre-April 15, 2014 cases proceeding under one scheme
of case management with no sunset date and cases filed after
that date subject to a very different scheme, the Supreme
Court entered an Order setting forth an Amended
Applicability Provision on November 14, 2013, and a second
Order on November 27, 2013.
In essence, the governing applicability Order furnishes a
means by which to bring all cases into the new system of
case management and trial setting through alternative,
specified actions to be taken in cases depending on their
particular procedural postures as of April 15, 2014.
The Order is available at the Court’s Rules Forum website
pertinent text appears on page 23 of the February
2014 issue of Arizona
When my fellow CPPC members and I
embarked on this effort in mid-2011, I naively believed that
the challenges would be largely mechanical - that is,
identifying the multitude of moving parts inherent in an
undertaking of this magnitude and crafting rules that
codified the existing practice in the majority of Arizona’s
counties. This proved true. What I did not account for,
however, was that the process would be marked by strong
opposition, constant refinement and, ultimately, the
brokering of a consensus with assistance from the Court.
While this particular experience with the rule-making
process was frustrating at times, the criticism received led
to productive debates and necessary fine tuning. That, in
turn, produced a sound and workable structure for civil case
management and trial setting well suited to modern civil
litigation in Arizona’s Superior Court.
Time may reveal the need for future
revisions to these amendments, but the framework is solid
and affords judicial officers appropriate discretion to
manage the cases before them in a fashion that best serves
the justice system at large and the litigants that come
before them. For my part, I am thankful for the opportunity
to have worked with so many good people who tirelessly
devoted their time and energy to fixing that which I believe
to have been broken and harmful to the administration of
 See former Rule V,
Uniform Rules of Practice of the Superior Court of
Arizona (effective March 8, 1965).
 See undated Maricopa
County Superior Court Civil Delay Reduction Project
Explanation and Order of Assignment (on file with
Arizona Supreme Court).
 See, e.g., Arizona Supreme
Court Order dated December 28, 1978 (on file with
Arizona Supreme Court).
 Arizona Supreme Court Order
Amending Rule V, Uniform Rules of Practice of the
Superior Court of Arizona dated July 7, 1983 (on
file with Arizona Supreme Court). See also
Press Release, Arizona Supreme Court, Court Issues
Major Rule Changes (July 7, 1983) (on file with
Arizona Supreme Court).
 See State Bar
Committee Note to 1983 Amendments to Uniform Rule V.
Petition to Amend
Rules 16, 16.1, 26, 37, 38.1, 72, 73, 74 and 77,
Ariz. R. Civ. P., filed by the State Bar of Arizona
on January 10, 2013
 See the State Bar of
Amended Petition and Response to Comments
on Petition to Amend Rules 16, 16.1, 26, 37, 38.1,
72, 73, 74 and 77, Ariz. R. Civ. P., filed on May 3,
Report to the
Arizona Supreme Court by the Task Force on Rule
13-0017 (Civil Case Processing) dated August 7, 2013
 See Arizona Supreme
Court Amended Order in R-13-0017 dated September 6,
2013 (referencing August 28, 2013 adoption of