Posted Aug 01, 2013 07:40 am CDT
In 1991, the late Judge Robert E. Keeton of Boston, serving as the chair of the U.S. Judicial Conference’s Standing Committee on Rules of Practice and Procedure, appointed a subcommittee to improve the style of federal procedural rules. It was an ambitious undertaking that, from its inception, was dogged by naysayers.
Ultimately, however, the Keeton plan succeeded to a degree that nobody at the outset could have ever envisioned. Within 20 years, all four major sets of federal rules—appellate, criminal, civil and evidence—would be wholly rewritten from beginning to end, all in a uniform style free of verbosity, unidiomatic language, awkwardness, needless legalese, inconsistent wordings, dense run-in lists, ungrammatical phrasings and other infelicities that made the rules difficult to read and follow.
Keeton’s initial idea was simply to improve the amendments that the specialized advisory committees were bringing before the standing committee. Keeton appointed a five-member Style Subcommittee chaired by professor Charles Alan Wright, the acclaimed proceduralist and treatise writer. The original members were Keeton himself, Judge George C. Pratt, Judge Alicemarie H. Stotler and Joseph F. Spaniol, the former clerk of the U.S. Supreme Court. All knew a good deal about writing style and, more important, cared.
Soon after the Style Subcommittee’s work began, Wright saw that the workload was extraordinarily heavy and decided to retain a reporter, or consultant. Two names came to their attention: mine and one other law professor’s. Both of us were interested in serving, but Wright wanted only one reporter. So he devised a test provision—one that both prospective reporters could edit as a kind of tryout. Our revisions ended up reading quite differently, and the subcommittee made a decision: I would be the reporter beginning in late 1992.
The Standing Committee meets twice yearly. When Keeton was chairing meetings (through 1995) a great deal of time was spent on getting the style of proposed amendments just right before they would be distributed for public comment. He or Wright would frequently interrupt the discussion to ask my opinion on the wording, and the Style Subcommittee members supported almost every suggestion I made before the votes were cast. Spaniol would frequently hand me suggested edits—brilliant ones, almost always—and I would briefly explain the improvements before an amendment would be adopted.
To those interested in rule drafting and legal style, the standing committee meetings chaired by Keeton were illuminating, instructive and even thrilling. We were carrying into effect the legal-drafting theories elaborated from the mid-19th century on by such luminaries as George Coode, James Fitzjames Stephen, Lord Thring, Elmer Driedger and F. Reed Dickerson. The end product was something the Style Subcommittee took great pride in.
At standing committee dinners and over breaks, I came to learn of another point of view: These meetings were dreadful, loathsome affairs where so much time was spent on getting the words and sentences right that some committee members simply couldn’t concentrate. They were interested in broad policy, not in accurate or elegant phrasing. Every one of their suggested wordings would be entirely reworded by the Style Subcommittee, and some lost confidence in their ability to frame a provision acceptable in form to Wright-Keeton-Garner.
Allied to this exasperation was the view of some reporters that only the idea behind the amendment mattered—its precise wording. “Just get the amendment out there for public comment, and we can perfect the words later.” That was their motto.
The Style Subcommittee’s view was quite contrary: The standing committee shouldn’t be publishing for public comment shoddy work product. Instead, we should give the amendments our very best effort, and then the inevitable improvements that come from public comments would result in an even more refined product.
The tension between these views has probably never been worked out satisfactorily. But throughout the Keeton years, the Style Subcommittee retained the upper hand.
Wright and Keeton were enthusiastic about the results of our work. But we were continually confronting a problem: We were improving provisions here and there, as substantive amendments were proposed, but our newly improved style conflicted with variable wordings throughout the rest of the rules. Some said that this reality proved just how ill-fated and senseless the whole style enterprise was.
Keeton responded with the suggestion that the Style Subcommittee should rewrite the Federal Rules of Civil Procedure from beginning to end—make wholesale improvements, not piecemeal ones.
Keeton and Wright then asked me to rewrite the entire set of Civil Rules, but they told me not to disturb well-known rule numbers such as 12(b)(6). Beginning in the summer of 1993, I did so.
The outgoing chair of the Civil Rules Advisory Committee, Judge Sam C. Pointer, was gung-ho. He worked in tandem with me to produce a full new draft of the Civil Rules. But his successors were skeptical and reluctant.
Over two long meetings in which only Rules 4-8 were covered, the tension and frustration mounted. There was concern that the Advisory Committee might be wasting its time on this enterprise—one that he said was fraught with political difficulties.
As we were scuttling the Civil Rules project—on which I had spent at least 500 hours and the other style members at least that much time cumulatively—the project seemed hopeless. We had an exemplary set of clearly worded rules that, we thought, might never see the light of day. The chief reporter to the standing committee, the irrepressible professor Dan Coquillette, remained sanguine and enthusiastic.
In 1994, Wright suggested that, as a reporter to the Style Subcommittee, I should prepare a style sheet to explain the systematic nature of our rule revisions. The result was the 30-page pamphlet titled Guidelines for Drafting and Editing Court Rules, published by the Administrative Office of the U.S. Courts in 1996. Both Keeton and Pratt, Wright’s successor as Style Subcommittee chair, wrote introductory essays.
At a standing committee meeting in 1994, 10th U.S. Circuit Court of Appeals Judge James K. Logan, chair of the Appellate Advisory Committee, approached Keeton to say that his committee would welcome a complete redo of the Appellate Rules. That moment—and Logan’s attitude—changed everything. As Keeton observed, the Appellate Rules aren’t politically charged: The plaintiffs’ bar and the defense bar wouldn’t be at constant loggerheads over those rules.
As with the Civil Rules and the Supplemental Rules, rewriting the Appellate Rules was an arduous process. Logan organized subcommittees of his Appellate Advisory Committee to review the first-draft revision by the Style Subcommittee, now chaired by Pratt. The new member of the Style Subcommittee was professor Geoffrey C. Hazard Jr.
Once again, my charge was to restyle the Appellate Rules without making any substantive changes. The only ax I could grind was for clarity—relentless clarity. Everyone on the project was committed to that goal, and the rules took effect in 1997.
In 1998, just as the Appellate Rules were being hailed as a success, the chair of the Criminal Rules Advisory Committee, Judge Lowell Jensen of Oakland, Calif. (now of San Jose), offered to have the Style Subcommittee overhaul the Criminal Rules. The head of the subcommittee was now Judge James A. Parker of Albuquerque, N.M. Judge Billy Roy Wilson of Little Rock, Ark.—an extraordinary raconteur and letter writer—took a position on the Style Subcommittee.
Again, through dozens of meetings, the Style Sub-committee and various subcommittees of the Criminal Rules Advisory Committee worked through revisions and plain-language clarifications. It was arduous work for dozens of people, but it paid off when the new rules took effect in 2001.
With the conclusion of my work on the Criminal Rules and no further major projects in sight—given that Chief Justice William H. Rehnquist had declared the Evidence Rules to be off-limits—I resigned from my position as chief style consultant in early 2000. I suggested as my replacement a superbly capable editor, professor Joseph Kimble in Lansing, Mich.
Soon after, the successive new chairs of the Civil Rules Advisory Committee, Judge David Levy and Judge Lee Rosenthal, spearheaded the effort to revive our aborted 1993 effort to revamp the Civil Rules. The project took seven years, and it was greatly helped by the fact that Levy and Rosenthal succeeded each other also as chairs of the powerful standing committee. Even though our 1994 work provided a great head start, the Advisory Committee and newly re-formed Style Subcommittee, headed by Judge J. Garvan Murtha, contributed hundreds of hours of additional work. Once again, with the newly restyled rules taking effect in 2007, the reworking was considered a major success. During the comment period, judges found that if they kept the revised rules ready at hand, they could understand the new rules much more quickly and accurately than the old ones.
Even though Rehnquist had dismissed the idea of ever overhauling the Evidence Rules, his successor embraced the idea. In 2007, one of the heroes of our story, Rosenthal, together with Coquillette, met with Chief Justice John G. Roberts Jr. to explain the history of recent rule revisions and ask for his approval to streamline them. The chief said yes.
Kimble, the newly constituted Style Subcommittee headed by James Teilborg, and the Evidence Rules Advisory Committee chaired by Judge Robert Hinkle finished the work in 2011—precisely 20 years after Keeton had set the whole process in motion.
Of course, dozens of judges and commentators were involved in all these revisory efforts—too many to mention here. Their success is remarkable especially as measured by this fact: Most litigators today don’t even remember the day when, not long ago, the rules were much less readable than they are today.
A few minutes after the conclusion of his final meeting as a member of the standing committee—and as chair of the Style Subcommittee—Wright sat down with me for an hourlong interview. It was Jan. 15, 1994, and we were in Tucson, Ariz.
Toward the end of our wide-ranging interview on legal writing, I asked Wright what he had learned from his work on the Style Subcommittee. Given that the judge for whom he clerked, Judge Charles E. Clark of the 2nd Circuit, was the principal drafter of the original Civil Rules, Wright’s answer surprised me: “I’ve discovered, first, how poor the style that even some very good drafters have employed can be. The people who have drafted the Federal Rules of Civil Procedure over the years were talented people. I’ve known them all—people who used the language well. But often they used different words in different places to express the same idea, or they used the same word in different places where they had in mind different ideas. Or they have some obscure form of words that makes it difficult to penetrate what it is they’re doing.”
Wright continued: “But I suppose the most important thing I’ve learned from this is how often trying to improve something for style discloses ambiguities that had not previously been apparent. When you’re trying to put a rule into clear, decent style, you see that the words that have been used have two possible meanings, and there is no objective way to tell which meaning the draftsman had in mind. And so I think working on style is a good way to expose the lack of clarity in people’s thinking.”
Since those early forays into federal rule drafting, I’ve had the privilege of revising many full sets of state and federal rules, as well as pattern jury instructions for state and federal courts. I can echo Wright’s lesson, but put it this way: When style suffers, so does the content. Upgrading the style inevitably upgrades the content.
For me, there are three other lessons as well—recurrent lessons that get driven home with each new project:
1.) Many lawyers and judges have no aptitude for legal drafting—and little patience for working through its difficulties.
2.) If you want to make real headway, a revisory committee must consist mostly of judges—never staff attorneys, who are institutionally reluctant to assert themselves and make decisions. You must work with high-level decision-makers.
3.) It is extremely unfortunate to consider previously enacted language forever fossilized and unchangeable. That mindset results in hopelessness—no possibility of improvement at all.
Next time you’re reading the federal rules—any of them besides the Bankruptcy Rules—note the simple, straightforward, refined expression. And raise a mental toast to the memory of Judge Robert E. Keeton, the federal judge who made it so.