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Tuesday, November 29, 2011

Substance & Style, Take 2: Katharine Traylor Schaffzin On The Restyled Rules Of Evidence

Below is the second in a series of three guest posts by Katharine Traylor Schaffzin on the restyled Federal Rules of Evidence:

Sacred Formatting: Why the Advisory Committee Chose Not to Reformat Rule 803

In restyling the Federal Rules of Evidence, the Advisory Committee on Evidence Rules resolved to amend the rules to make them more easily understandable and to achieve consistency in style and terminology.  The Committee aimed to achieve uniformity in formatting across all the rules of practice and procedure.  To accomplish this, they applied a familiar outlining format including progressively indented subparagraphs, hanging indents, and substituting vertical lists for horizontal lists.  Formatting revisions of this type abound in Rule 801.

Rule 803, however, represents a significant departure from consistency in style.  The first level of subparagraphs is numbered 803(1) through 803(24).  To achieve consistent formatting, however, those subparagraphs should be identified as 803(a) through 803(x).  The alternative resulting in arguably greater consistency would have been to identify the language preceding those subsections (β€œThe following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:”) as the first level of subparagraphs in itself (for example, β€œ803(a) The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:”).  This alternative would have maintained the current numbering of exceptions, replacing 803(1) with 803(a)(1), for example. 

The Advisory Committee decided against both alternatives, maintaining something akin to sacred phrases - sacred formatting.  The problem with the latter alternative is stylistic.  If the Committee were to add subparagraph (a), the rules of style would have also required it to add a subparagraph (b).  There was simply no appropriate content for a subparagraph (b) and the Committee wisely decided against adding a subparagraph of meaningless text simply to oblige a stylistic rule.

But the bigger problem identified by the Advisory Committee in renaming the subparagraphs of Rule 803, whether they be renumbered 803(a) through 803(x) or 803(a)(1) through 803(a)(24), is that all historical references to the hearsay exceptions would be lost.  Attorneys and judges would have to relearn all twenty-four exceptions by new names.  Moreover, legal research of an exception would turn up nothing.  For example, were a student to search Rule 803(c) on Lexis, the earliest result he or she would find would be from December 1, 2011; such a search would reveal no history of the exception prior to the restyling.  Rather than wipeout thirty-five years of legal research on one of the most commonly cited rules for the sake of consistency in style, the Advisory Committee wisely chose not to act.

http://lawprofessors.typepad.com/evidenceprof/2011/11/substance-style-take-2-katharine-traylor-schaffzin-on-the-restyled-rules-of-evidence.html

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