Trial Magazine

It’s been a banner year for advocacy on federal court rules changes, which are made through the U.S. Judicial Conference, the federal court system’s policy-making arm. AAJ members have really stepped up to help with the effort.

Proposed change to expert witness rule. Last year, the Judicial Conference’s Committee on Rules of Practice and Procedure (the Standing Committee) issued several proposed rules, including revised Federal Rule of Evidence (FRE) 702 on expert witnesses. Many AAJ members submitted comments, and nine members, including AAJ President Navan Ward Jr., testified at the public hearing.

While the proposed rule and accompanying committee note were narrowed from an earlier draft that both AAJ and the Department of Justice opposed, it still posed issues for the plaintiff bar—including calling for an enhanced gatekeeping function for judges, potentially making it more difficult for plaintiff experts to be heard by a jury.

The defense bar, in its comments, pushed to overturn case law it disagreed with in the committee note, as well as to require judges to make specific findings about experts. AAJ and its members opposed these proposals, along with the presidents of all 50 state trial lawyer associations (as well as the Washington, D.C. and Los Angeles TLAs), who filed a joint comment expressing their concerns about the impact of the rule change on states. Many states follow FRE 702 and would likely adopt at the state level any changes implemented to the federal rules.

The committee plans to meet this month to discuss and vote on a revised rule and committee note. If the committee adopts a change—and that is likely to happen—the next step is for the Standing Committee to review the revised rule in June.

Court operations during an emergency. At its June meeting, the Standing Committee will also review other rules, including proposed Federal Rule of Civil Procedure (FRCP) 87, a new rule that can be used during emergencies such as a pandemic. AAJ supports this rule, which would make certain time frames more lenient during emergencies, including service of process and the time for filing an appeal.

AAJ also has urged the Advisory Committee on Civil Rules to reexamine other rules that need to be updated to better serve clients and courts operating in a remote environment. For example, witnesses should be permitted to give depositions and testimony remotely to keep the civil docket moving.

AAJ working groups. When an advisory committee is discussing a major rule change, AAJ often forms a member working group—these are particularly helpful if the rule change spans across multiple practice areas. AAJ’s current working groups on privilege logs and on multidistrict litigation (MDL) have provided feedback to the Advisory Committee on Civil Rules over the past few months.

In January, the Privilege Logs Working Group met virtually with members of the Discovery Subcommittee and reiterated the necessity of document-by-document privilege logging. Members also shared their experiences with defendants’ over-designation of documents, problems with categorical logging, the importance of FRE 502(d) claw-back orders, and meeting and conferring early in cases. Many AAJ members also submitted comments about their use of privilege logs during an informal comment period last summer.

And during the 2022 Winter Convention, AAJ members met with the MDL Subcommittee to discuss a potential draft rule that would amend FRCP 16(b) and FRCP 26(f) to provide direction to MDL judges. The plaintiff and defense bars clearly disagree on the training judges need to run MDLs, with the defense bar pushing for rules that would bog down MDLs and prevent claims from proceeding.

Looking ahead. AAJ expects proposed rules in Fall 2022 from the Evidence Committee, including amendments to standardize the process for judges to allow jurors to ask questions during trial, a new rule on illustrative aids, and clarification of a rule on summaries of voluminous records.

For more information on the proposed amendments or to join a working group, please email advocacy@justice.org.

Susan Steinman is AAJ’s senior director of policy and senior counsel and can be reached at susan.steinman@justice.org.