Language’’ is a regular feature of the Michigan Bar Journal,
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This is the second part of a memorandum I wrote to accompany the restyled Federal Rules of Civil Procedure. The rules are available at
http://www.uscourts.gov/rules/Prelim_draft_proposed_pt1.pdf. Last month, in Part 1, I discussed the style process and three ‘‘style matters’’—style in general, formatting, and consistency. This month, I discuss some other style matters and some limitations on the project.
Another difficult challenge was presented by what the Advisory Committee came to call ‘‘intensifiers.’’ These are expressions that might seem to add emphasis but that, as a matter of good drafting, should be avoided for one of several reasons: they state the obvious, their import is so hard to grasp that it has no practical value, or they create negative implications for other rules. Examples (without citations):
• the court may, in its discretion: May means ‘‘has the discretion to’’; in its discretion is a pure intensifier.
• if the court deems it advisable, the court may: Presumably, the court would not choose to do something inadvisable, so the if-clause is merely an intensifier.
• the court may, in proper cases: On the same theory, in proper cases is an intensifier.
• unless the order expressly directs otherwise: An order cannot implicitly direct; it means only what it says. And using expressly suggests that this order is somehow different from all the other orders in the rules.
• show affirmatively: Likewise, this rule is not meant to be different from all the other rules that require a party or a document to merely show.
• substantial justice: Substantial seems to add nothing—or nothing appreciable.
• reasonable written notice: Using reasonable might imply that, in every other rule that requires notice, the notice does not have to be reasonable.
• if, for any reason: Here, too, for any reason adds nothing specific and might imply that the bare use of if in other rules means something else. Perhaps only some reasons are good in those other rules.
Again, the current rules contain many other examples. And again, the Committee considered each one individually to determine whether the intensifier had any practical significance.
Outdated and Repetitious Material
As you would expect, the Committee also tried to eliminate material that was outdated, redundant, or otherwise repetitious. Many of these decisions are reflected in the Committee Notes.
Some examples of outdated material or language in the current rules: the reference to at law or in equity or in admiralty in Rule 1; the reference to demurrers, pleas, and exceptions in Rule 7(c); the reference to mesne process in Rule 77(c); the limitation in Rule 80 to testimony that was stenographically reported (thus excluding other means of recording testimony); and the reference in Rule 81(f) to the now-abolished district director of internal revenue.
The current rules also contain a number of redundant—or self-evident—cross-references. Thus, Rule 7(b)(3) requires that motions ‘‘be signed in accordance with Rule 11.’’ But Rule 11 applies by its own terms to ‘‘every pleading, written motion, and other paper.’’ Rule 8(b) states that a general denial is ‘‘subject to the obligations set forth in Rule 11.’’ Of course it is; all pleadings are subject to Rule 11. Rule 33(b)(5) states that a party submitting interrogatories ‘‘may move for an order under Rule 37(a).’’ But Rule 37(a) allows sanctions for any failure to make disclosure or to cooperate in discovery. So why include the cross-reference to Rule 37 in just one or two discovery rules? The trouble with redundant cross-references is that there is no logical end to them.
The Committee tried to avoid or minimize repetition in various other ways as well:
• By shortening a second reference to the same thing. Thus, current Rule 72(a) allows a magistrate judge to issue an order and then refers three times to the magistrate judge’s order. Since there is no other order in sight, the restyled rule uses the order for the later references. The same principle applies to successive subparts: rather than seeming to start over with each one, we can generally trust the reader to read them together. Restyled Rule 4(d)(1) allows a plaintiff to request that the defendant waive service of a summons; in (d)(2), (3), and (4), we shorten to the request or a waiver. Restyled Rule 16(f)(1)(A) refers to a scheduling or other pretrial conference; in (B), we shorten to the conference.
• Similarly, by adopting shorter forms of reference. Rather than repeatedly referring to the court from which the subpoena issued in Rule 45, we use the issuing court. Rather than the party who prevailed on that motion in Rule 50(e), we use the prevailing party.
• By using a list that pulls repeated terms into the introduction to the list, where the term is used just once. Compare current and restyled Rule 45(a)(2).
• By merging two provisions that are essentially the same. Current Rules 26(g)(1) and (2) have three similar sentences about disclosure and discovery; the repetitious parts of those six sentences have been merged into two sentences in restyled 26(g)(1). Likewise, current Rules 37(a)(2)(A) and (B) have a similar sentence about certifying an effort to obtain disclosure or discovery; those two sentences have been combined into one in restyled 37(a)(1). Current Rule 50(b) uses lists that repeat two items verbatim; the restyled rule merges the repeated items into one list.
• By using more pronouns. After referring to a copy of the summons and of the complaint in Rule 4(i)(1)(A)(i), we use a copy of each in the subparts that immediately follow. After referring to certain materials in Rule 26(b)(3)(A)(ii), we refer to obtaining their substantial equivalent instead of the substantial equivalent of the materials.
• By avoiding the purest form of repetition—saying the same thing twice. Thus, current Rule 33(d) refers to an examination...or inspection. The Committee could see no appreciable difference between those terms. The prime example may be current Rule 36, which repeats in (a) and (b) that an admission is ‘‘for purposes of the pending action only.’’
Once again, these examples could be multiplied.
The Committee tried to eliminate the syntactic ambiguities that lie hidden in the current rules. Some examples:
• Rule 11(c)(1)(B): the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto. What does thereto refer to?
• Rule 34(a): it’s too long to quote, but the question is whether in the possession, custody or control of the [responding] party modifies any designated documents.
• Rule 45(c)(3)(B)(iii): is the material beginning with the court may supposed to modify all the items in the list or only item (iii)?
• Rule 46: the action which the party desires the court to take or the party’s objection to the action of the court and the grounds therefor. What does therefor refer to?
• Rule 72(a): any portion of the...order found to be clearly erroneous or contrary to law. Does clearly modify contrary to law?
Other Kinds of Changes
Below is a short list of some of the other style principles that the Committee followed, trying to fix the more obvious deficiencies in the current rules:
• Reorganize jumbled provisions. For some examples, compare the current rules with restyled Rules 6(c), 8(b), 16(b), 23.1, 26(e), 30(b), 37(d), 44(a)(2), 45(c)(2)(B), and 70.
• Break up overlong sentences. Compare the current rules with restyled Rules 4(m), 6(b), 26(b)(3)(A), 26(b)(4)(B), 31(b), 34(a), 56(a), and 56(g). Of course, the added vertical lists in the restyled rules automatically break up their sentences into manageable pieces. No doubt some of the sentences are still too long, and even some of the vertical lists are more complicated than we might have liked (see Rule 4(f), for instance). But readers should notice a substantial overall improvement.
• Cut down on cross-references. The experts urge drafters to minimize cross-references, and the Committee tried to eliminate as many as it reasonably could. Current Rule 51, for instance, uses eight cross-references; the restyled rule uses two. Again, a good many—perhaps too many—cross-references still remain, but many are gone.
• Minimize of-phrases. Garner’s Guidelines puts it exactly like that. Thus, not statute of the United States, but federal statute. Not must include the names of all the parties, but must name all the parties. Not after the appearance of a defendant, but after any defendant appears. Not the avoidance of unnecessary proof, but avoiding unnecessary proof. Not order of the court, but court order.
• For the same reason, use possessives. The current rules use possessives rather sparingly. The restyled rules use them liberally. Not the law of the foreign country, but the foreign country’s law. Not the pleadings of the defendants, but the defendants’ pleadings. Not the claims of the opposing party, but the opposing party’s claims.
• Don’t state the obvious. This is one more among the many ways to omit unnecessary words. Current Rule 5(e):The filing of papers
with the court as required by these rules shall be made by (i.e., A paper is filed by).Current Rule 6(b): When by these rules or b y a notice given thereunder or by order of court an act is required or allowed to be done (i.e., When an act may or must be done). Current Rule 26(b)(3) (after a sentence about a party’s showing a need for materials): In ordering discovery of such materials when the required showing has been made. Current Rule 30(b)(1): shall give...notice...to every other party to the action. Current Rule 36(b): Any admission made by a party under this rule. Current Rule 56(a): A party...may...move...for a summary judgment in the party’s favor.
• Avoid legalese. No pursuant to. No provided that. No such when it means ‘‘a’’ or ‘‘the.’’ No hereof or therefor or wherein. Consider this specimen, from current Rule 56(e): ‘‘Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.’’
• Banish shall. The restyled civil rules, like the restyled appellate and criminal rules, use must instead of shall. Shall is notorious for its misuse and slipperiness in legal documents. No surprise, then, that the Committee changed shall to may in several instances, to should in several other instances, and to the simple present tense when the rule involves no obligation or permission (There is one form of action; this order controls the course of the action).
The Committee did not change any rule numbers, even though some of the rules (4, 23, 26, 71.1) are probably too long and others might benefit from repositioning. This also means that the Committee did not convert any of the interposed rules (4.1, 7.1, 23.1, 23.2, 44.1, 65.1, and 71.1) to different numbers. Nor did it restore to active service the numbers of previously abrogated Rules 74, 75, and 76. At the rule level, the only change was from 71A to 71.1.
Any reordering was done at the subdivision level—(a), (b), (c)—or lower. (The comparison chart in Appendix B to the rules shows changes in subdivisions.) Even then, the Committee changed only when it was satisfied that the improved sequencing outweighed the possible short-term inconvenience. Throughout this project, the Committee had to balance two competing interests. On the one hand, the current designations are familiar, and changing them will occasionally require users to make adjustments. On the other hand, this chance to set the rules in order—or better order—may not come along for another 70 years, and we should take the long view.
Consider just the first few changes on the comparison chart. Current Rule 5(e) is merged into restyled 5(d) because both subdivisions deal with filing. Current Rules
6(d) and (e) move up because current 6(c) is empty. Current Rule 8(d) moves to restyled 8(b)(6) because it fits more logically with other materials on denials; and the change is ameliorated because the rule keeps its heading even at the paragraph level, (b)(6). The last sentences of current Rules 12(b) and (c)—two long sentences—are merged into restyled 12(d) because they are almost identical; and this change, too, is ameliorated by moving current 12(d) to a new 12(i). On the whole, the Committee tried to make a modest number of sensible changes in the subparts only.
Dealing With Uncertainty
As already suggested, the Committee had to repeatedly deal with ambiguities, inconsistencies, gaps, and other uncertainties in the current rules. Start with Rule 1 again—just two sentences. Should it be These rules govern the procedure in all civil actions or in all civil actions and proceedings? Should we change inexpensive to economical? Then Rule 2. One expert thought we should get rid of it entirely. Nothing in Rule 3. Rule 4(a). Would it be substantive to change a failure to appear and defend to a failure to defend? Is there a difference between a failure to appear and failing to appear? And so on.
Almost always, the Committee was able to answer these questions and clarify the rule or tighten the language. Occasionally, though, an ambiguity was so intractable that the Committee was not comfortable with changing the language. One memorable example: the two similar uses of heretofore in current Rule 59(a). The uses refer to the reasons for which new trials or rehearings have heretofore been granted in federal courts. This is classically bad drafting. Up until when? When the rule was first drafted? When the rule is applied? After research and extended discussion, the Committee decided that it could not be sure, so that ambiguity—and one piece of legalese—had to be carried forward.
This was the Committee’s name for phrases that have become so familiar as to be unalterably fixed in cement. They are not exactly terms of art like hearsay and bailment. Terms of art typically are confined to a given field, consist in one or two words that are difficult to replace with one or two other words, and convey a fairly precise and settled meaning. So-called sacred phrases do not meet these criteria.
At any rate, some of the examples below could have easily been improved without changing the meaning; in others, style improvements risked substantive change. But none were touched.
• Restyled Rule 8(b)(5): knowledge or information sufficient to form a belief.
• Restyled Rule 12(b)(6): failure to state a claim upon which relief can be granted.
• Rule 13(a)(1)(A): arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.
• Restyled Rule 19(b): in equity and good conscience.
• Restyled Rule 44(b): no record or entry of a specified tenor.
• Restyled Rule 56(c): there is no genuine issue as to any material fact.
So that’s how the Committee went about restyling the civil rules. The Committee realizes that its work is not done—but it trusts that readers will see the value of all that has been done.