Thursday, April 8, 2010

Scholarship alert: "Lessons in drafting from the new Federal Rules of Civil Procedure"

This article is by Professor Joseph Kimble of Thomas Cooley School of Law and can be found at 12 Scribes J. Legal Writing 25 (2008-09).  From the introduction: 

December 1, 2007, was a historic day in the long, hard fight for better legal writing: the "restyled" Federal Rules of Civil Procedure -- a top-to-bottom redraft -- officially took effect. The project began in mid-2002 and was carried out by the Advisory Committee on Civil Rules. I was the drafting consultant, working with Joseph Spaniol. Bryan Garner had prepared an original draft in 1993, but the project was put on hold during restylings of the appellate and criminal rules.

Now, it's almost impossible to convey how excruciatingly careful our process was for redrafting the civil rules to improve their clarity, consistency, and readability -- without making substantive changes. I outlined the process in a memo that accompanied the rules when they were published for comment in February 2005.  But even that outline doesn't capture the amount of work in my three 40- by 12-inch file drawers or the 775 documents in the archive at the Administrative Office of the United States Courts.

What I can do is offer some drafting tips and examples from the new rules. My February 2005 memo touched on formatting, consistency, outdated and repetitious material, and (broadly) "other kinds of changes." In this article, I'll revisit everything, develop some old points, add some new ones, and try to provide a little advice. At the same time, I hope to put to rest any lingering doubts about whether this redrafting project was needed.

Just three caveats. First, nobody would claim that the new rules are perfect. You can always go back and find things that could be further improved. That said, the difference between the old and new rules is dramatic. (During the public-comment period, a class of students at Thomas Cooley Law School rated the clarity and readability of the old rules at 4.8 and the new rules at 8.4 on a scale of 1 to 10.) Second, if any mistakes were made in the restyling project, they can easily be fixed. Third, the examples below are just that -- examples. They could be multiplied by many others from the old rules.

I am the scholarship dude.

(jbl)

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