by Brooke D. Coleman, William C. Oltman Professor of Teaching Excellence, Seattle University School of Law
When the Federal Rules of Civil Procedure were adopted in 1938, they came with a set of forms that were meant to illustrate and, importantly, suffice under the rules. These forms, according to the original rule makers, were key to the success of the Civil Rules because they would be the “pictures” that would accompany the rules. It is worth remembering that the ethos behind the adoption of the 1938 Civil Rules as a whole was to eliminate needless technicalities and barriers to access. Simplifying the process so that the merits could be reached was the goal. The forms were an important part of reaching that goal because a litigant could use the form, and as long as the form was used correctly, courts had to accept it.
As of December 1, 2015, Rule 84 and the Official Forms were erased from the Civil Rules forever. As I have written here and here, there are a number of reasons to believe that this was a bad idea. (Others have also argued as much here and here.) The Civil Rules Committee argued that the forms were out of date and that the Committee wanted to get out of the form-making business. The easiest solution was to eliminate the forms altogether. As a consolation for eliminating the forms, the Committee stated that the Administrative Office of the Courts would publish sample forms for federal court litigants. It appears that this consolation prize is indeed in the works.
In his year-end report for the Court, Chief Justice John Roberts explained that some new forms had already been drafted by “a group of experienced judges” assembled by the Administrative Office of the Courts. These new forms can be found here. Chief Justice Roberts explained further that the “outdated forms” of the past would be replaced with these “modern versions that reflect current practice and procedure.”
Whatever the value of these new forms might be, the Chief Justice left out an important caveat. First, these new forms are suggestive. In other words, what is stated in these forms is no longer required under the Civil Rules. This is the case because they were not created through the official Rules Enabling Act Process. That process would have required the Advisory Committee on the Federal Rules of Civil Procedure to draft the forms, publish them for comment, and send them through the Judicial Conference, Supreme Court, and Congress for approval. Instead, a “group of experienced judges” drafted the forms without public input and without any of the trappings of the official rulemaking process.
These new forms and their creation are part of a disturbing new trend—the development of a “new” federal civil rulemaking process. (The adoption of private guidelines for the recent proportionality rule—by the Duke Center for Judicial Studies—is yet another example of this “new” rulemaking process. Scholars have criticized this private process, which created interpretive guidelines for the new federal discovery rules but did so with the appearance of an official rulemaking process.) Unlike the official rulemaking process, this process does not require publication for public comment, open meetings, or vetting by multiple bodies. Instead, under this new process, the Chief Justice or members of the Advisory Committee hand pick the people that they want to take part in the creation of the forms or rules, and those forms or rules are drafted largely behind closed doors and without public input. They are then promulgated with the imprimatur of an official change because they look as if they came from an official process. Yet, they are not official and they are not binding in any way.
Why does this matter? Well, I believe this “new” process is problematic for a two reasons. First, it attempts to gain the legitimizing benefits of the official process, but it does not capture the procedural steps necessary to create that legitimacy. Thus, the product of the new process will not be viewed as legitimate and will therefore continue to lower public faith in our civil justice system.
Second, any product of this “new” process is skewed. The process does not allow for varying viewpoints and input to contribute to the final product. This necessarily produces something that is biased—whether purposeful or not. For example, the new negligence form asks the plaintiff to explain in detail “the acts or failures to act and why they were negligent” as well as how “the acts or omission caused or contributed to the cause of the plaintiff’s injuries.” This is in contrast to the original Form 11 (née Form 9) which only required that the plaintiff state the date and time of the car accident where she was hit by a vehicle. This seems like a slight change, but the new form complaint moves the bar in the direction toward particularized pleading and away from the notice pleading that is still defined by Rule 8. In other words, this new form complaint appears to modify Rule 8; yet, it cannot actually do so because it did not make its way through the official Rules Enabling Act Process.
The question is whether those using the forms—judges and litigants—understand this important distinction. These forms are not “official.” They are not binding. But that fact is difficult to see. Indeed, even the Chief Justice stated in his year-end report that these new forms were meant to “replace” the official forms.
The confusion that the “new” rulemaking process is creating is concerning. I hope that the Chief Justice and those who sit on the Standing and Advisory Committees will see that this trend should be stopped. The Rules Enabling Act Process is imperfect in many ways. For one, it can be quite cumbersome. Yet, its deliberative and open nature is also its greatest attribute. It produces a better product. Here’s to a new year, but I confess that I hope 2016 sees the end of this “new” rulemaking process.