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William G. Klain

 

A Long and Winding Road: How We Reached the 2014 Amendments

 

 

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.[1] 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’ adoption.

The 1960s, 1970s

In 1965, Uniform Rule V was adopted, establishing the active/inactive calendar and motions to set and certificates of readiness.[2] 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.[3] Cases were then subject to dismissal 60 days after placement on the inactive calendar.[4] 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].”[5]

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.[6] This effort, known as the Civil Delay Reduction Project (the “CDRP”), had as its objectives:

  • reducing civil case processing times,

  • affording trial courts scrutiny over civil cases from inception to disposition,

  • establishing temporal benchmarks for various stages of civil litigation, and

  • providing firm trial dates upon filing of certificates of readiness.[7]

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.[8] The Supreme Court granted this request through an Order issued in December 1978.[9] 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.[10] 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 exhibits.[11]

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.[12]

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 divided vote.

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.[13]

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.[14] 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.[15] 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 15, 2014.[16] (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.[17] 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.[18] The Order is available at the Court’s Rules Forum website (and its pertinent text appears on page 23 of the February 2014 issue of Arizona Attorney magazine).

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 justice.


[2] See former Rule V, Uniform Rules of Practice of the Superior Court of Arizona (effective March 8, 1965).

[3] Id. at Rule V(d).

[4] Id.

[5] Id. at Rule V(a).

[6] See undated Maricopa County Superior Court Civil Delay Reduction Project Explanation and Order of Assignment (on file with Arizona Supreme Court).

[7] Id.

[8] See, e.g., Arizona Supreme Court Order dated December 28, 1978 (on file with Arizona Supreme Court).

[9] Id.

[10] 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).

[11] See State Bar Committee Note to 1983 Amendments to Uniform Rule V.

[12]See 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

[13] See the State Bar of Arizona’s 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, 2013

[14] See Report to the Arizona Supreme Court by the Task Force on Rule 13-0017 (Civil Case Processing) dated August 7, 2013

[15] Id.

[16] See Arizona Supreme Court Amended Order in R-13-0017 dated September 6, 2013 (referencing August 28, 2013 adoption of amendments).

[18] See id.