2008–2009 25

Lessons in Drafting from

the New Federal Rules of

Civil Procedure*

Joseph Kimble

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 2005.1

But even that outline doesn’t capture the amount of work in my

* Based on a five-part series in the Michigan Bar Journal (Aug.–Dec. 2007). Each part

has a short introduction.

1

Joseph Kimble, Guiding Principles for Restyling the Civil Rules, in Committee on

Rules of Practice and Procedure, Preliminary Draft of Proposed Style Revision of the

Federal Rules of Civil Procedure x (Feb. 2005) (available at http://www.uscourts.gov/

rules/Prelim_draft_proposed_pt1.pdf) (reprinted in 84 Mich. B.J. 56 (Sept. 2005)

and 84 Mich. B.J. 52 (Oct. 2005)).
26 The Scribes Journal of Legal Writing 2008–2009

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 My February 2005 memo touched on formatting, consistency, outdated and repetitious material, and (broadly) “other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.

1. Put the parts in a logical order.

This may seem like an obvious principle, but the old rules violated it repeatedly — and right from the start. In the very first rule

with any length — Rule 4 — there were three glaring examples.

First, old 4(a) put the last parts of a summons first. New 4(a)

fixes that and uses a handy vertical list besides. (I’ll get to vertical

lists in the next guideline.)
2008–2009 Drafting Lessons — Civil Rules 27

Second, old 4(d)(2) did the same thing: jumbled the requirements for a notice and request to waive service. The method of

mailing, for instance, should come last, but it appeared second in a

seven-item list. (I’ll skip the example.)

Third, the paragraphs in old 4(d) followed this illogical progression:

• the effect of defendant’s waiving service on an objection to venue or jurisdiction;

• how plaintiff requests a waiver;

Old 4(a)

(a) Form. The summons

shall be signed by the clerk,

bear the seal of the court, identify the court and the parties, be

directed to the defendant, and

state the name and address of

the plaintiff’s attorney or, if unrepresented, of the plaintiff. It

shall also state the time within

which the defendant must appear and defend, and notify the

defendant that failure to do so

will result in a judgment by default against the defendant for

the relief demanded in the

complaint. . . .

New 4(a)(1)

(a) Contents; Amendments.

(1) Contents. A summons must:

(A) name the court and the parties;

(B) be directed to the defendant;

(C) state the name and address

of the plaintiff’s attorney or

— if unrepresented — of

the plaintiff;

(D) state the time within which

the defendant must appear

and defend;

(E) notify the defendant that

a failure to appear and

defend will result in a default judgment against the

defendant for the relief demanded in the complaint;

(F) be signed by the clerk; and

(G) bear the court’s seal.
28 The Scribes Journal of Legal Writing 2008–2009

• one consequence of defendant’s failing to waive;

• the time for defendant to file an answer after returning

a waiver;

• the results of plaintiff’s filing the waiver (proof of service is not required); and

• a second consequence of defendant’s failing to waive.

The order of the paragraphs in new 4(d):

• how plaintiff requests a waiver of service;

• the consequences of defendant’s failing to waive;

• the time for defendant to file an answer after returning

a waiver;

• the results of plaintiff’s filing the waiver (proof of service is not required); and

• the effect of defendant’s waiver on an objection to venue

or jurisdiction.

This new order, by the way, is reflected in the headings to

4(d)(1)–(5). Old 4(d)(1)–(5) used no headings. If it had, the disorder might have been more apparent. In addition, separating the

consequences of failing to waive produced repetition and unnecessary cross-references.
2008–2009 29

2. Use lists to the best advantage.

The vertical list is one of the drafter’s — and reader’s — best

friends. Probably no other technique is more useful for organizing

complex information, breaking it down into manageable chunks,

avoiding repetition, and preventing ambiguity.

Drafting Lessons — Civil Rules

Old 4(d)(2) (last sentence)

& (5)

(2)

. . .

If a defendant located within

the United States fails to comply with a request for waiver

made by a plaintiff located

within the United States, the

court shall impose the costs

subsequently incurred in effecting service on the defendant

unless good cause for the failure be shown.

. . .

(5) The costs to be imposed

on a defendant under paragraph

(2) for failure to comply with a

request to waive service of a

summons shall include the

costs subsequently incurred in

effecting service under subdivision (e), (f), or (h), together

with the costs, including a reasonable attorney’s fee, of any

motion required to collect the

costs of service.

New 4(d)(2)

(2) Failure to Waive. If a defendant

located within the United States

fails, without good cause, to sign

and return a waiver requested by a

plaintiff located within the United

States, the court must impose on

the defendant:

(A) the expenses later incurred in

making service; and

(B) the reasonable expenses, including attorney’s fees, of any

motion required to collect

those service expenses.
30 The Scribes Journal of Legal Writing 2008–2009

Take organization. Notice in this example how the exceptions

are pulled together in the list and how the second sentence in the

old rule is included within the third exception.

In the next example, the list not only breaks up a ridiculously

long sentence but also reorganizes the “failures” into two categories — failing to appear and failing to serve a paper.

Old 6(d)

(d) For Motions—Affidavits. A written motion, other

than one which may be heard

ex parte, and notice of the hearing thereof shall be served not

later than 5 days before the

time specified for the hearing,

unless a different period is

fixed by these rules or by order

of the court. Such an order may

for cause shown be made on ex

parte application. . . .

New 6(c)(1)

(c) Motions, Notices of Hearing, and

Affidavits.

(1) In General. A written motion

and notice of the hearing must

be served at least 5 days before

the time specified for the hearing, with the following

exceptions:

(A) when the motion may be

heard ex parte;

(B) when these rules set a different time; or

(C) when a court order —

which a party may, for

good cause, apply for ex

parte — sets a different

time.
2008–2009 31

Notice, too, that (1) in the new rule the subject of the independent

clause (the court) is placed at the beginning rather than appearing

midsentence and (2) the needless elaboration at the end of the old

rule — 29 words beginning with may make such orders — is tightened to may . . . order sanctions.

Drafting Lessons — Civil Rules

Old 37(d)

(d) Failure of Party to Attend

at Own Deposition or Serve

Answers to Interrogatories or

Respond to Request for Inspection. If a party or an officer,

director, or managing agent of

a party or a person designated

under Rule 30(b)(6) or 31(a) to

testify on behalf of a party fails

(1) to appear before the officer

who is to take the deposition,

after being served with a proper

notice, or (2) to serve answers

or objections to interrogatories

submitted under Rule 33, after

proper service of the interrogatories, or (3) to serve a written

response to a request for inspection submitted under Rule

34, after proper service of the

request, the court in which the

action is pending on motion

may make such orders in regard to the failure as are just,

and among others it may take

any action authorized under

subparagraphs (A), (B), and (C)

of subdivision (b)(2) of this

rule. . . .

New 37(d)(1)(A)

(d) Party’s Failure to Attend Its

Own Deposition, Serve Answers

to Interrogatories, or Respond to

a Request for Inspection.

(1) In General.

(A) Motion; Grounds for Sanctions. The court where the

action is pending may, on

motion, order sanctions if:

(i) a party or a party’s

officer, director, or

managing agent — or

a person designated

under Rule 30(b)(6) or

31(a)(4) — fails, after

being served with

proper notice, to appear

for that person’s deposition; or

(ii) a party, after being

properly served with

interrogatories under

Rule 33 or a request for

inspection under Rule

34, fails to serve its answers, objections, or

written response.
32 The Scribes Journal of Legal Writing 2008–2009

Now consider the value of a list for avoiding repetition. Two

examples follow. In the first example, the 89-word sentence in the

old rule referred four times to a party or its attorney. (And the items

were, again, not in a logical order.)

Old 16(f)

(f) Sanctions. If a party or

party’s attorney fails to obey a

scheduling or pretrial order, or

if no appearance is made on behalf of a party at a scheduling

or pretrial conference, or if a

party or party’s attorney is

substantially unprepared to

participate in the conference, or

if a party or party’s attorney

fails to participate in good

faith, the judge, upon motion or

the judge’s own initiative, may

make such orders with regard

thereto as are just, and among

others any of the orders provided in Rule 37(b)(2)(B), (C),

(D). . . .

New 16(f)(1)

(f) Sanctions.

(1) In General. On motion or on

its own, the court may issue

any just orders, including

those authorized by Rule

37(b)(2)(A)(ii)–(vii), if a party

or its attorney:

(A) fails to appear at a scheduling or other pretrial conference;

(B) is substantially unprepared

to participate — or does not

participate in good faith —

in the conference; or

(C) fails to obey a scheduling

or other pretrial order.

Similarly, in the second example the old rule referred three times

to determining capacity to sue or be sued.
2008–2009 Drafting Lessons — Civil Rules 33

Next, an example of the value of a list for avoiding ambiguity.

In the old rule, the words which are in the possession, custody or

control of the party seemed to modify only any designated tangible

things and not the earlier any designated documents or electronically stored information. The new rule gets the modification right

with a list. (If only I could show you all the ambiguities in the old

rules.)

Old 17(b)

(b) Capacity to Sue or Be

Sued. The capacity of an individual, other than one acting in

a representative capacity, to sue

or be sued shall be determined

by the law of the individual’s

domicile. The capacity of a corporation to sue or be sued shall

be determined by the law under

which it was organized. In all

other cases capacity to sue or be

sued shall be determined by the

law of the state in which the district court is held, except . . . .

New 17(b)

(b) Capacity to Sue or Be Sued.

Capacity to sue or be sued is determined as follows:

(1) for an individual who is not

acting in a representative

capacity, by the law of the

individual’s domicile;

(2) for a corporation, by the law

under which it was organized;

and

(3) for all other parties, by the law

of the state where the court is

located, except . . . .

Old 34(a)

(a) Scope. Any party may

serve on any other party a request (1) to produce and permit

the party making the request,

or someone acting on the requestor’s behalf, to inspect,

copy, test, or sample any desigNew 34(a)

(a) In General. A party may serve on

any other party a request within

the scope of Rule 26(b):

(1) to produce and permit the

requesting party or its representative to inspect, copy, test,

or sample the following items

continued on page 34
34 The Scribes Journal of Legal Writing 2008–2009

Besides the ambiguity, the old rule repeated inspect, copy, test, or

sample, and the word translated after the second dash connected in

a clumsy, broken way with information before the first dash.

3. Break up long sentences.

This is standard advice for all forms of legal writing, since the

ultralong sentence is one of our oldest and worst linguistic vices.

My goal here is to look at some specific ways to cure it.

continued from page 33

Old 34(a)

nated documents or electronically stored information —

including writings, drawings,

graphs, charts, photographs,

sound recordings, images, and

other data or data compilations

stored in any medium from

which information can be

obtained — translated, if necessary, by the respondent into

reasonably usable form, or to

inspect, copy, test, or sample

any designated tangible things

which constitute or contain

matters within the scope of

Rule 26(b) and which are in the

possession, custody or control of

the party upon whom the request is served; or (2) to permit

entry upon designated land . . . .

New 34(a)

in the responding party’s possession, custody, or control:

(A) any designated documents

or electronically stored information — including

writings, drawings, graphs,

charts, photographs, sound

recordings, images, and

other data or data compilations — stored in any

medium from which information can be obtained

either directly or, if necessary, after translation by the

responding party into a

reasonably usable form; or

(B) any designated tangible

things; or

(2) to permit entry onto designated

land . . . .
2008–2009 35

First way: simply convert a compound sentence using and into

two sentences.

Drafting Lessons — Civil Rules

Old 12(b)

(b) How Presented. Every defense, in law or fact, to a claim for

relief in any pleading, whether a

claim, counterclaim, cross-claim,

or third-party claim, shall be asserted in the responsive pleading

thereto if one is required, except

that the following defenses may

at the option of the pleader be

made by motion . . . .

New 12(b)

(b) How to Present Defenses.

Every defense to a claim for

relief in any pleading must be

asserted in the responsive pleading if one is required. But a party

may assert the following defenses

by motion . . . .

Second way: pull an exception into a new sentence, typically

beginning with But.

Old 27(b)

(b) Pending Appeal. . . . If the

court finds that the perpetuation

of the testimony is proper to

avoid a failure or delay of justice,

it may make an order allowing

the depositions to be taken and

may make orders of the character

provided for by Rules 34 and 35,

and thereupon the depositions

may be taken and used in the

same manner and under the same

conditions as are prescribed in

these rules for depositions taken

in actions pending in the district

court.

New 27(b)(3)

(3) Court Order. If the court finds

that perpetuating the testimony

may prevent a failure or delay of

justice, the court may permit the

depositions to be taken and may

issue orders like those authorized by Rules 34 and 35. The

depositions may be taken and

used as any other deposition

taken in a pending district-court

action.
36 The Scribes Journal of Legal Writing 2008–2009

A variation on this second technique is to signal the main rule with

a word like Ordinarily and put an exception or a condition in a

second sentence beginning with But. The new rules may have innovated this technique; I have not seen it discussed in the literature.

Old 26(b)(3)

(3) Trial Preparation: Materials. Subject to the

provisions of subdivision (b)(4)

of this rule, a party may obtain

discovery of documents and

tangible things otherwise discoverable under subdivision

(b)(1) of this rule and prepared

in anticipation of litigation or

for trial by or for another party

or by or for that other party’s

representative (including the

other party’s attorney, consultant, surety, indemnitor,

insurer, or agent) only upon a

showing that the party seeking

discovery has substantial need

of the materials in the preparation of the party’s case and that

the party is unable without undue hardship to obtain the

substantial equivalent of the

materials by other means. . . .

New 26(b)(3)(A)

(3) Trial Preparation: Materials.

(A) Documents and Tangible

Things. Ordinarily, a party

may not discover documents

and tangible things that are

prepared in anticipation of litigation or for trial by or for

another party or its representative (including the other party’s

attorney, consultant, surety,

indemnitor, insurer, or agent).

But, subject to Rule 26(b)(4),

those materials may be discovered if:

(i) they are otherwise discoverable under Rule 26(b)(1);

and

(ii) the party shows that it has

substantial need for the materials to prepare its case

and cannot, without undue

hardship, obtain their substantial equivalent by other

means.
2008–2009 Drafting Lessons — Civil Rules 37

Third way, similar to the second one: pull a condition or conditions into a new sentence.

Fourth way: repeat a key word from the previous sentence at

or near the beginning of the new sentence.

Old 12(f)

(f) Motion to Strike. Upon

motion made by a party before

responding to a pleading or, if

no responsive pleading is permitted by these rules, upon

motion made by a party within

20 days after the service of the

pleading upon the party or

upon the court’s own initiative

at any time, the court may order stricken from any pleading

any insufficient defense or any

redundant, immaterial, impertinent, or scandalous matter.

New 12(f)

(f) Motion to Strike. The court may

strike from a pleading an insufficient defense or any redundant,

immaterial, impertinent, or scandalous matter. The court may act:

(1) on its own; or

(2) on motion made by a party

either before responding to the

pleading or, if a response is not

allowed, within 20 days after

being served with the pleading.

Old 7(b)(1)

(b) Motions and Other

Papers.

(1) An application to the

court for an order shall be

by motion which, unless

made during a hearing or

trial, shall be made in writing, shall state with particularity the grounds therefor,

and shall set forth the relief

or order sought. . . .

New 7(b)(1)

(b) Motions and Other Papers.

(1) In General. A request for a

court order must be made by

motion. The motion must:

(A) be in writing unless made

during a hearing or trial;

(B) state with particularity the

grounds for seeking the order; and

(C) state the relief sought.
38 The Scribes Journal of Legal Writing 2008–2009

As a last little challenge, can you quickly tell what the italicized

therein referred to in the old rule? Ah, the false efficiency and

pseudo-precision of legalese.

Finally, note that the vertical list, even when it does not serve

any of the larger purposes described in guideline 2, still provides

structure to a long sentence and makes the items easy to sort out

and identify.

Old 5(c)

(c) Same: Numerous

Defendants. In any action in

which there are unusually

large numbers of defendants,

the court, upon motion or of

its own initiative, may order

that service of the pleadings of

the defendants and replies

thereto need not be made as

between the defendants and that

any cross-claim, counterclaim,

or matter constituting an avoidance or affirmative defense

contained therein shall be

deemed to be denied or avoided

by all other parties and that the

filing of any such pleading and

service thereof upon the plaintiff constitutes due notice of it

to the parties. . . .

New 5(c)(1)

(c) Serving Numerous Defendants.

(1) In General. If an action involves

an unusually large number of

defendants, the court may, on

motion or on its own, order that:

(A) defendants’ pleadings and

replies to them need not be

served on other defendants;

(B) any crossclaim, counterclaim, avoidance, or

affirmative defense in those

pleadings and replies to

them will be treated as denied or avoided by all other

parties; and

(C) filing any such pleading

and serving it on the plaintiff constitutes notice of the

pleading to all parties.
2008–2009 39

The old Federal Rules of Civil Procedure, which expired on

December 1, 2007, are a gold mine — or should I say a landfill? —

for examples of how not to draft. And it’s inexcusable that generations of law students and young lawyers have had to wade through

the clutter and confusion to learn civil procedure. The same goes

for the Federal Rules of Evidence (now being restyled!), the

Bankruptcy Code, most of the UCC, the Restatements, and just

about all the rules, codes, and statutes that lawyers draft. Such a

professional embarrassment. Such a waste of readers’ time and effort.

Let’s keep looking at ways to combat our affliction.

4. Avoid needless repetition.

Some of the repetition in the old civil rules is amazing. Below

are four ways to deal with it. In each example, I’ll italicize the repetition on the left.

Try a pronoun. (Incidentally, notice how the italicized items in

the second sentence of the old rule weren’t even in parallel order

with the same items in the first sentence.)

Drafting Lessons — Civil Rules

Old 9(a)

(a) Capacity. It is not necessary to aver the capacity of a

party to sue or be sued or the

authority of a party to sue or be

sued in a representative capacity or the legal existence of an

organized association of persons that is made a party, except

to the extent required to show

continued on page 40

New 9(a)

(a) Capacity or Authority to Sue;

Legal Existence.

(1) In General. Except when required to show that the court

has jurisdiction, a pleading

need not allege:

(A) a party’s capacity to sue or

be sued;
40 The Scribes Journal of Legal Writing 2008–2009

Similarly, try to shorten a second reference to the same thing.

Old Rule 72(a), for instance, allowed a magistrate judge to issue an

order and then referred three times to the magistrate judge’s order;

since there’s no other order in sight, the new rule uses the order for

the later references. Old Rule 23(e) used [proposed] settlement, voluntary dismissal, or compromise seven times; the new rule, after a

first reference to proposed settlement, voluntary dismissal, or compromise, uses the proposal. Old Rule 45 referred six times to the

court from [or by] which the subpoena was issued; the new rule,

after a full first reference, uses the issuing court. New Rule 4(d)(1)

allows the plaintiff to request that the defendant waive service of a

summons; then in (d)(2), (3), and (4), that’s shortened to the request

or a waiver. These examples make an important point: rather than

seeming to start over again with each successive subpart, as the old

rules tended to do, we can generally trust the reader to read the

subparts together as a coherent whole.

Another technique: try to merge two provisions that are essentially the same. The new rules do this many times.

continued from page 39

Old 9(a)

the jurisdiction of the court.

When a party desires to raise

an issue as to the legal existence

of any party or the capacity of

any party to sue or be sued or

the authority of a party to sue or

be sued in a representative capacity, the party desiring to raise

the issue shall do so by . . . .

New 9(a)

(B) a party’s authority to sue or

be sued in a representative

capacity; or

(C) the legal existence of an organized association of persons that is made a party.

(2) Raising Those Issues. To raise

any of those issues, a party

must do so by . . . .
2008–2009 Drafting Lessons — Civil Rules 41

Old 26(g)

(g) Signing of Disclosures, Discovery Requests, Responses, and

Objections.

(1) Every disclosure made pursuant to subdivision (a)(1) or

subdivision (a)(3) shall be signed

by at least one attorney of record

in the attorney’s individual

name, whose address shall be

stated. An unrepresented party

shall sign the disclosure and state

the party’s address. The signature of the attorney or party

constitutes a certification that to

the best of the signer’s knowledge, information, and belief,

formed after a reasonable inquiry, the disclosure is . . . .

(2) Every discovery request,

response, or objection made by

a party represented by an attorney shall be signed by at least

one attorney of record in the

attorney’s individual name,

whose address shall be stated.

An unrepresented party shall

sign the request, response, or

objection and state the party’s

address. The signature of the

attorney or party constitutes a

certification that to the best of

the signer’s knowledge, information, and belief, formed after

a reasonable inquiry, the request,

response, or objection is . . . .

New 26(g)

(g) Signing Disclosures and Discovery Requests, Responses,

and Objections.

(1) Signature Required; Effect

of Signature. Every disclosure under Rule 26(a)(1) or

(a)(3) and every discovery

request, response, or objection must be signed by at

least one attorney of record

in the attorney’s own name

— or by the party personally, if unrepresented —

and must state the signer’s

address, e-mail address,

and telephone number. By

signing, an attorney or

party certifies that to the

best of the person’s knowledge, information, and

belief formed after a reasonable inquiry:

(A) with respect to a disclosure, it is . . . ; and

(B) with respect to a discovery request, response, or objection, it

is . . . .
42 The Scribes Journal of Legal Writing 2008–2009

Old 37(a)(2)(A) & (B)

(a) Motion For Order Compelling Disclosure or Discovery. A

party, upon reasonable notice to

other parties and all persons affected thereby, may apply for an

order compelling disclosure or discovery as follows:

. . .

(2) Motion.

(A) If a party fails to make a

disclosure required by Rule 26(a),

any other party may move to

compel disclosure and for appropriate sanctions. The motion must

include a certification that the

movant has in good faith conferred or attempted to confer

with the party not making the disclosure in an effort to secure the

disclosure without court action.

(B) If a deponent fails to [make

discovery in any of several ways],

the discovering party may move

for an order compelling an

answer, or a designation, or an

order compelling inspection in

accordance with the request. The

motion must include a certification that the movant has in good

faith conferred or attempted to

confer with the person or party

failing to make the discovery in

an effort to secure the information or material without court

action. . . .

New 37(a)(1)

(a) Motion for an Order Compelling Disclosure or

Discovery.

(1) In General. On notice to

other parties and all affected persons, a party may

move for an order compelling disclosure or discovery.

The motion must include a

certification that the movant has in good faith

conferred or attempted to

confer with the person or

party failing to make disclosure or discovery in an

effort to obtain it without

court action. [Subparagraphs 3(A) & (B) describe

the two motions more specifically.]
2008–2009 Drafting Lessons — Civil Rules 43

Finally, try a vertical list. As I illustrated in guideline 2, you can

often pull repetitious language into the introduction to the list —

and say it just once. Here’s another example.

Old 71

When an order is made in favor of

a person who is not a party to the action, that person may enforce

obedience to the order by the same

process as if a party; and, when obedience to an order may be lawfully

enforced against a person who is not

a party, that person is liable to the

same process for enforcing obedience

to the order as if a party.

New 71

When an order grants relief for a

nonparty or may be enforced

against a nonparty, the procedure

for enforcing the order is the

same as for a party.

New 30(g)

(g) Failure to Attend a Deposition or Serve a Subpoena;

Expenses. A party who,

expecting a deposition to be

taken, attends in person or by

an attorney may recover

reasonable expenses for attending, including attorney’s

fees, if the noticing party

failed to:

(1) attend and proceed with

the deposition; or

(2) serve a subpoena on a

nonparty deponent, who

consequently did not attend.

continued on page 44

Old 30(g)

(g) Failure to Attend or to Serve

Subpoena; Expenses.

(1) If the party giving the notice

of the taking of a deposition fails

to attend and proceed therewith

and another party attends in person or by attorney pursuant to the

notice, the court may order the

party giving the notice to pay to

such other party the reasonable

expenses incurred by that party

and that party’s attorney in attending, including reasonable

attorney’s fees.
44 The Scribes Journal of Legal Writing 2008–2009

5. Don’t state the obvious.

Lawyers are naturally careful in their drafting, trying to guard

against the occasional reader in bad faith. But at some point, the

misinterpretations become highly improbable, and the effort to

prevent them is cumbersome and excessive. Some things are just

too obvious for words.

Consider these examples from the old rules. I could go on and

on.

• 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 . . .).

• 6(b): When by these rules or by a notice given thereunder or by

order of court an act is required or allowed to be done at or within

a specified time . . . . (What are you trying to exclude? Why not

simply When an act may or must be done within a specified time?)

continued from page 43

Old 30(g)

(2) If the party giving the notice of

the taking of a deposition of a witness

fails to serve a subpoena upon the witness and the witness because of such

failure does not attend, and if another

party attends in person or by attorney

because that party expects the deposition of that witness to be taken, the

court may order the party giving the

notice to pay to such other party the

reasonable expenses incurred by that

party and that party’s attorney in attending, including reasonable

attorney’s fees.

New 30(g)
2008–2009 45

• 7(b)(2): The rules applicable to captions and other matters of form

of pleadings apply to all motions and other papers provided for by

these rules.

• 7.1(a): A nongovernmental corporate party to an action or proceeding in a district court must file . . . . (We know the world we’re

in—the district court.)

• 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 . . . .

• 30(b)(1): shall give . . . notice . . . to every other party to the action.

• 36(b): Any admission made by a party under this rule . . . .

• 38(d): A demand for trial by jury made as herein provided may not

be withdrawn without the consent of the parties.

• 41(d): the court may [order] the payment of costs . . . and may stay

the proceedings in the action until the plaintiff has complied with

the order.

• 46: Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore

been necessary it is sufficient that a party . . . .

• 55(b)(2): the party . . . shall be served with written notice of the

application for judgment at least 3 days prior to [ugh] the hearing

on such [ugh] application.

• 56(a): A party . . . may . . . move . . . for a summary judgment in the

party’s favor . . . .

The old rules also contained a number of self-evident — or

redundant — cross-references. Thus, Rule 7(b)(3) required that

motions “be signed in accordance with Rule 11.” But Rule 11 applies by its own terms to “every pleading, written motion, and other

Drafting Lessons — Civil Rules
46 The Scribes Journal of Legal Writing 2008–2009

paper.” Rule 8(b) stated 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) stated 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 they may lead the reader to think they have

special significance. Another trouble is that there’s no logical end to

them.

6. Be clear; say what you mean in normal English.

Often in the old rules, you got the gist of the intended meaning, but you wondered why the drafter said it in such an odd or

oblique way. What in the world impels lawyers to write like this?

• 4(l): If service is made by a person other than a United States marshal or deputy United States marshal, the person shall make affidavit thereof.

• 7(a): There shall be a complaint . . . .

• 8(c): In pleading to a preceding pleading . . . .

• 18(b): Whenever a claim is one heretofore cognizable only after

another claim has been prosecuted to a conclusion . . . .

• 24(b): When a party to an action relies for ground of claim or defense upon any statute . . . .

• 25(a)(1): Unless the motion for substitution is made not later than

90 days after the death is suggested upon the record by service of a

statement of the fact of the death as provided herein for the service

of the motion . . . .
2008–2009 47

• 34(b): The response shall state, with respect to each item or

category, that inspection and related activities will be permitted

as requested, unless the request is objected to, including an objection to the requested form or forms for producing electronically

stored information, stating the reasons for the objection.

• 36(a): A denial shall fairly meet the substance of the requested admission . . . .

• 38(b): Such demand may be indorsed upon a pleading of the party.

• 52(a): due regard shall be given to the opportunity of the trial court

to judge of the credibility of the witnesses. (See if you can rewrite

without using a single of.)

That goes to show why legal writing has been ridiculed for centuries — and why the new civil rules are cause for celebration.

Drafting Lessons — Civil Rules

At this point, let me digress momentarily and pose a question:

why has most legal drafting been so bad for so long? The reasons

number at least five.

First, law schools have traditionally neglected legal drafting.2

Even “neglected” is putting it rather mildly — “ignored” is more

like it. Until the mid-1980s, most schools barely taught how to write

memos and briefs. And until this century, only a small percentage

required students to take drafting as part of the school’s writing

2 See Joseph Kimble, How to Mangle Court Rules and Jury Instructions, in Lifting the

Fog of Legalese: Essays on Plain Language 105, 123–24 (Carolina Academic Press

2006) (citing data from the 2005 survey by the Association of Legal Writing Directors and the Legal Writing Institute).
48 The Scribes Journal of Legal Writing 2008–2009

program. (Incidentally, when I say “take drafting,” I mean take a

course in how to clearly and effectively draft any contract or statute or rule; I don’t mean an elective that centers on drafting the

substance of particular kinds of documents, such as real-estate

documents or wills and trusts.)

Second, after law school most lawyers do not fill in the gap

through self-education, by reading one of the good books on drafting, say, or even taking a CLE course. Rather, they tend to copy

the old forms, thus continuing the cycle of bad drafting. Nobody

should think that old forms must be tried and true — let alone well

drafted.3

Third, young lawyers who learned the basics of plain English

in law school may still have to “learn” drafting — or at least take

direction — from older lawyers who never did learn those basics.

The blind leading the partially sighted. (Again, I’m not talking about

what substantive provisions to include, but how best to draft them.)

In short, many or most lawyers still learn drafting on the job — a

questionable practice:

[S]tudents in the law schools should be taught how to draft legal

documents, and should not be left to learn draftsmanship merely in

the school of experience.

 Learning draftsmanship in the school of experience exclusively

is costly to clients; it is costly to the public, and it is costly to the

lawyer. It is like learning surgery by experience — it is possible,

but it is tough on the patient, and tough on the reputation of the

surgeon.4

3 See Kimble, The Great Myth That Plain Language Is Not Precise, in Lifting the Fog

of Legalese, supra n. 2, at 37, 45 n. 7 (citing authority for why forms are often

unreliable and imprecise).

4 Charles A. Beardsley, Beware of, Eschew and Avoid Pompous Prolixity and Platitudinous Epistles, 16 Cal. B.J. 65, 65 (Mar. 1941).
2008–2009 49

5 See Bryan A. Garner, Legal Writing in Plain English 91 (U. Chi. Press 2001) (describing five reasons why the strategy is “wrongheaded”).

6 See Bryan A. Garner, President’s Letter, The Scrivener (newsletter of Scribes — Am.

Socy. of Legal Writers) 1, 1 (Winter 1998) (describing the author’s CLE participants).

7

Id. at 3 (5% of the documents are of high quality; 95% would claim to produce

high-quality documents).

Drafting Lessons — Civil Rules

Fourth, lawyers typically think they should draft for judges

rather than the public or administrators or other front-end users.

That, too, is a questionable strategy — and tends to produce poor

drafting.5

Fifth, transactional lawyers seem to be less interested in skilled

drafting than litigators are in writing skilled briefs or other court

papers.6

 Maybe that’s because litigators’ briefs are regularly tested,

so to speak, in court, while transactional documents rarely are. At

any rate, the great disconnect is that while most transactional lawyers say that a very small percentage of the legal drafting they see is

of a genuinely high quality, almost all of them would claim to produce high-quality documents.7

All in all, most lawyers — as smart, talented, and experienced as

they may be — have a limited critical faculty when it comes to legal

drafting. This article tries to raise awareness and offer some concrete help. Below are four more guidelines.

7. Keep the subject and verb — and the parts of the verb

itself — close together.

It’s standard advice to avoid creating wide gaps between the

subject, verb, and object. Since these parts form the core of the

sentence, the advice should be fairly obvious even to writers who

aren’t acquainted with the literature. But apparently not, judging

from the old civil rules.
50 The Scribes Journal of Legal Writing 2008–2009

Interestingly, though, gaps between the subject and verb were

much more common than gaps between the verb and object. So

were gaps between the parts of the verb itself. (Note that a fairly

short gap, a short insertion, may work fine: the court may, for good

cause, order that . . . .)

Here, for example, are two mind-bending gaps between the main

subject and verb.

Old 32(a)(2)

(2) The deposition of a party or

of anyone who at the time of taking

the deposition was an officer, director, or managing agent, or a person

designated under Rule 30(b)(6) or

31(a) to testify on behalf of a public

or private corporation, partnership

or association or governmental

agency which is a party may be

used by an adverse party for any

purpose.

New 32(a)(3)

(3) Deposition of Party, Agent, or

Designee. An adverse party

may use for any purpose the

deposition of a party or anyone who, when deposed, was

the party’s officer, director,

managing agent, or designee

under Rule 30(b)(6) or

31(a)(4).

Notice how easy that fix was, using the active voice.

Old 44(b)

(b) Lack of Record. A written

statement that after diligent search

no record or entry of a specified tenor

is found to exist in the records designated by the statement, authenticated

as provided in subdivision (a)(1) of

this rule in the case of a domestic

New 44(b)

(b) Lack of a Record. A written

statement that a diligent search

of designated records revealed

no record or entry of a specified tenor is admissible as

evidence that the records contain no such record or entry.

continued on page 51
2008–2009 Drafting Lessons — Civil Rules 51

And here are two examples of big gaps between the parts of the

main verb:

Old 16(b)

(b) Scheduling and Planning.

Except in categories of actions exempted by district court rule as

inappropriate, the district judge, or

a magistrate judge when authorized

by district court rule, shall, after receiving the report from the parties

under Rule 26(f) or after consulting

with the attorneys for the parties

and any unrepresented parties by a

scheduling conference, telephone,

mail, or other suitable means, enter

a scheduling order . . . .

New 16(b)(1)

(b) Scheduling.

(1) Scheduling Order. Except

in categories of actions

exempted by local rule,

the district judge — or a

magistrate judge when

authorized by local rule —

must issue a scheduling

order:

(A) after receiving the parties’ report under Rule

26(f); or

(B) after consulting with

the parties’ attorneys

and any unrepresented

parties at a scheduling

conference or by telephone, mail, or other

means.

Old 44(b)

record, or complying with the requirements of subdivision (a)(2) of this

rule for a summary in the case of a

foreign record, is admissible as evidence that the records contain no

such record or entry.

continued from page 50

New 44(b)

For domestic records, the statement must be authenticated

under Rule 44(a)(1). For foreign records, the statement

must comply with (a)(2)(C)(ii).
52 The Scribes Journal of Legal Writing 2008–2009

New Rule 56(a) also illustrates two techniques, discussed in guideline 3, for breaking up long sentences: repeat or echo a key word

from the previous sentence at the beginning of the new sentence

(here motion echoes move); and pull conditions or qualifications

into a new sentence.

8. Normally, don’t put the main clause late in the sentence.

The main, or independent, clause is most typically delayed by

piling up conditions or qualifiers at the beginning of the sentence.

Again, guidelines 2 and 3 included some examples — old and new

37(d), 16(f), and 12(f). Here’s one more (with the ifs and the main

subjects and verbs italicized).

Old 56(a)

(a) For Claimant. A party

seeking to recover upon a

claim, counterclaim, or crossclaim or to obtain a declaratory

judgment may, at any time after the expiration of 20 days

from the commencement of the

action or after service of a motion for summary judgment by

the adverse party, move with or

without supporting affidavits

for a summary judgment in the

party’s favor upon all or any

part thereof.

New 56(a) [amendment pending, 2009]

(a) By a Claiming Party. A party

claiming relief may move, with or

without supporting affidavits, for

summary judgment on all or part of

the claim. The motion may be filed

at any time after:

(1) 20 days have passed from commencement of the action; or

(2) the opposing party serves a motion for summary judgment.
2008–2009 Drafting Lessons — Civil Rules 53

If the condition or conditions are reasonably short (as in this

sentence), then putting them at the beginning of the sentence will

not tax the reader’s memory. But a long condition belongs at the

end, after the main clause.

Old 37(a)(2)(B)

(B) If a deponent fails to answer a question propounded or

submitted under Rules 30 or 31,

or a corporation or other entity

fails to make a designation under Rule 30(b)(6) or 31(a), or a

party fails to answer an interrogatory submitted under Rule

33, or if a party, in response to a

request for inspection submitted under Rule 34, fails to

respond that inspection will be

permitted as requested or fails to

permit inspection as requested,

the discovering party may

move for an order compelling

an answer, or a designation,

or an order compelling inspection in accordance with the

request. . . .

New 37(a)(3)(B)

(B) To Compel a Discovery Response.

A party seeking discovery may

move for an order compelling an

answer, designation, production,

or inspection. This motion may be

made if:

(i) a deponent fails to answer a

question asked under Rule 30

or 31;

(ii) a corporation or other entity

fails to make a designation under Rule 30(b)(6) or 31(a)(4);

(iii)a party fails to answer an interrogatory submitted under Rule

33; or

(iv) a party fails to respond that inspection will be permitted—or

fails to permit inspection—as

requested under Rule 34.
54 The Scribes Journal of Legal Writing 2008–2009

9. Try to put statements in positive form.

Avoid multiple negatives — that’s another standard guideline

the old rules often ignored. Below are several common patterns for

multiple negatives. Remember that besides no, not, and words with

negative prefixes (in-, un-, non-), words like unless, without, absent, fail, and preclude also have negative force.

Pattern 1: shall/may not . . . unless/without/if . . . not.

Old 38(d)

(d) Waiver. The failure of a

party to serve and file a demand as required by this rule

constitutes a waiver by the

party of trial by jury. A demand

for trial by jury made as herein

provided may not be withdrawn without the consent of

the parties.

New 38(d)

(d) Waiver; Withdrawal. A party

waives a jury trial unless its demand is properly served and filed.

A proper demand may be withdrawn only if the parties consent.

Old 55(b)(2)

(2) By the Court. . . . If, in

order to enable the court to enter judgment or to carry it into

effect, it is necessary to take an

account or to determine the

amount of damages or to establish the truth of any averment

by evidence or to make an investigation of any other matter,

the court may conduct such

hearings or order such references as it deems necessary and

proper . . . .

New 55(b)(2)

(2) By the Court. . . . The court may

conduct hearings or make referrals

. . . when, to enter or effectuate

judgment, it needs to:

(A) conduct an accounting;

(B) determine the amount of damages;

(C) establish the truth of any allegation by evidence; or

(D) investigate any other matter.
2008–2009 Drafting Lessons — Civil Rules 55

The next example — if you can believe it — used save in its archaic

negative sense.

Pattern 2: no _____ shall/may . . . unless/without/if . . . not.

Old 41(a)(2)

(2) By Order of Court.

Except as provided in paragraph (1) of this subdivision of

this rule, an action shall not be

dismissed at the plaintiff’s instance save upon order of the

court and upon such terms and

conditions as the court deems

proper. . . .

New 41(a)(2)

(2) By Court Order; Effect. Except as

provided in Rule 41(a)(1), an action may be dismissed at the

plaintiff’s request only by court order, on terms that the court

considers proper. . . .

Old 55(b)(2)

(2) By the Court. In all

other cases the party entitled to

a judgment by default shall apply to the court therefor; but no

judgment by default shall be

entered against an infant or incompetent person unless

represented in the action by a

general guardian, committee,

conservator, or other such representative who has appeared

therein. . . .

New 55(b)(2)

(2) By the Court. In all other cases, the

party must apply to the court for a

default judgment. A default judgment may be entered against a

minor or incompetent person only

if represented by a general guardian, conservator, or other like

fiduciary who has appeared. . . .
56 The Scribes Journal of Legal Writing 2008–2009

Pattern 3: no _____ /nothing . . . prevents/precludes.

Pattern 4: unless . . . is not.

You may have noticed that the last example actually used three

negatives. That’s right — the rare triple negative. For your reading

pleasure, behold one more.

Old 50(d)

(d) Same: Denial of Motion

for Judgment as a Matter of

Law. . . . If the appellate court

reverses the judgment, nothing

in this rule precludes it from

determining that the appellee is

entitled to a new trial . . . .

New 50(e)

(e) Denying the Motion for Judgment as a Matter of Law;

Reversal on Appeal. . . . If the

appellate court reverses the judgment, it may order a new trial . . . .

Old 11(c)(1)(A)

(A) By Motion. A motion

for sanctions . . . shall be served

as provided in Rule 5, but shall

not be filed with or presented

to the court unless, within 21

days after service of the motion

(or such other period as the

court may prescribe), the challenged paper, claim, defense,

contention, allegation, or denial is not withdrawn or

appropriately corrected. . . .

New 11(c)(2)

(2) Motion for Sanctions. A motion

for sanctions . . . must be served

under Rule 5, but it must not be

filed or be presented to the court if

the challenged paper, claim, defense, contention, or denial is

withdrawn or appropriately corrected within 21 days after service

or within another time the court

sets. . . .
2008–2009 Drafting Lessons — Civil Rules 57

10. Minimize cross-references.

Most readers will tell you, if you care to ask, that unnecessary

cross-references are at least distracting and at worst irritating. They

distract by cluttering the sentence and directing the reader’s attention elsewhere. And they irritate when the reader realizes that the

reference was to something already known or entirely obvious.

The prime reason for unnecessary cross-references is an

unwillingness to trust the reader to read successive subparts together, as if each textual sliver had to stand alone in the world.

Thus, you get drafting like this.

Old 8(e)(2)

(2) . . . When two or more

statements are made in the alternative and one of them if made

independently would be sufficient, the pleading is not made

insufficient by the insufficiency

of one or more of the alternative

statements. . . .

New 8(d)(2)

(2) Alternative Statements of a

Claim or Defense. . . . If a party

makes alternative statements, the

pleading is sufficient if any one of

them is sufficient.

Old 53(h)(1) & (2)

(h) Compensation.

(1) Fixing Compensation.

The court must fix the master’s

compensation before or after

judgment on the basis and terms

stated in the order of appointment . . . .

(2) Payment. The compensation fixed under Rule 53(h)(1)

must be paid . . . .

New 53(g)(1) & (2)

(g) Compensation.

(1) Fixing Compensation. Before

or after judgment, the court

must fix the master’s compensation on the basis and terms

stated in the appointing order

. . . .

(2) Payment. The compensation

must be paid . . . .
58 The Scribes Journal of Legal Writing 2008–2009

Old 51(c)(2) & (d)

(2) An objection is timely if:

(A) a party that has been

informed of an instruction or

action on a request before the

jury is instructed and before

final jury arguments, as provided by Rule 51(b)(1), objects at the opportunity for

objection required by Rule

51(b)(2); or

(B) a party that has not

been informed of an instruction or action on a request

before the time for objection

provided under Rule 51(b)(2)

objects promptly after learning that the instruction or

request will be, or has been,

given or refused.

(d) Assigning Error; Plain

Error.

(1) A party may assign as

error:

(A) an error in an instruction actually given if that

party made a proper objection under Rule 51(c), or

(B) a failure to give an instruction if that party made a

proper request under Rule

51(a), and — unless the court

made a definitive ruling on

the record rejecting the request — also made a proper

objection under Rule 51(c).

New 51(c)(2) & (d)

(2) When to Make. An objection is timely if:

(A) a party objects at the

opportunity provided

under Rule 51(b)(2);

or

(B) a party was not

informed of an instruction or action on a

request before that

opportunity to object,

and the party objects

promptly after learning

that the instruction or

request will be, or has

been, given or refused.

(d) Assigning Error; Plain

Error.

(1) Assigning Error. A party

may assign as error:

(A) an error in an instruction actually given, if

that party properly

objected; or

(B) a failure to give an

instruction, if that

party properly

requested it and—

unless the court

rejected the request

in a definitive ruling

on the record—also

properly objected.
2008–2009 Drafting Lessons — Civil Rules 59

The new rules may still have too many cross-references, but

they have about 45 fewer than the old rules. That’s progress.

The advice in this next part, guidelines 11 through 13, will be all

about omitting needless words — about tightening. And here the

examples below can’t begin to do justice to the restyling project,

because just about every other sentence seemed to have extra words.

So it’s a real challenge to choose from all the possible examples.

Consider this: the old rules had about 45,500 words; the new

rules, even with the much greater use of headings, have about 39,280.

That’s 6,220 fewer words, or almost 14% less — all while following

the Advisory Committee’s mandate to not change substantive meaning.

Of course, writing clearly and plainly does not necessarily mean

always using the fewest possible words in every sentence. But it

would be surprising to learn of a plain-language project that did

not produce a significant reduction overall.

Finally, remember that two of the guidelines discussed earlier — avoid needless repetition (#4) and don’t state the obvious

(#5) — also bear on omitting needless words.

11. Root out unnecessary prepositional phrases. Question

every of.

There’s no surer way to tighten legal writing than to eliminate

unnecessary prepositional phrases. And as simple as it may sound,

there’s no better indicator than the word of.
60 The Scribes Journal of Legal Writing 2008–2009

Old 4(d)(1)

(1) A defendant who waives

service of a summons does not

thereby waive any objection to the

venue or to the jurisdiction of the

court over the person of the defendant.

New 4(d)(5)

(5) Jurisdiction and Venue Not

Waived. Waiving service of a

summons does not waive any

objection to personal jurisdiction or to venue.

Old 35(b)(3)

(3) . . . This subdivision does

not preclude discovery of a report

of an examiner or the taking of a

deposition of the examiner in accordance with the provisions of

any other rule.

New 35(b)(6)

(6) . . . This subdivision does not

preclude obtaining an

examiner’s report or deposing

an examiner under other rules.

Old 16(b)(8)

. . .

The scheduling order . . . may include . . . any other matters

appropriate in the circumstances

of the case.

New 16(b)(3)(B)(vi)

The scheduling order may . . . include other appropriate matters.

Old 10(a)

(a) Caption; Names of Parties.

. . . In the complaint the title of the

action shall include the names of

all the parties, but in other pleadings it is sufficient to state the

name of the first party on each side

with an appropriate indication of

other parties.

New 10(a)

(a) Caption; Names of Parties. . . .

The title of the complaint must

name all the parties; the title of

other pleadings, after naming

the first party on each side,

may refer generally to other

parties.
2008–2009 Drafting Lessons — Civil Rules 61

One good, recurring way to minimize of-phrases is to use

possessives. The new rules convert dozens and dozens of of-phrases

— and other prepositional phrases — to possessives. Some examples:

• 4(f)(2)(A): the law of the foreign country/the foreign country’s law.

• 5(c); now 5(c)(1)(A): the pleadings of the defendants/defendants’

pleadings.

• 13(i): the claims of the opposing party/the opposing party’s claims.

• 24(b); now 24(b)(3): the rights of the original parties/the original

parties’ rights.

• 26(a)(2)(B); now 26(a)(2)(B)(iv): the qualifications of the witness/

the witness’s qualifications.

Old 45(b)(1)

(1) A subpoena may be served

by any person who is not a party

and is not less than 18 years of age.

Service of a subpoena upon a person named therein shall be made

by delivering a copy thereof to

such person . . . .

New 45(b)(1)

(1) By Whom; Tendering Fees;

Serving a Copy of Certain Subpoenas. Any person who is at

least 18 years old and not a

party may serve a subpoena.

Serving a subpoena requires delivering a copy to the named

person . . . .

Old 54(d)(2)(C)

(C) . . . The court may determine

issues of liability for fees before receiving submissions bearing on

issues of evaluation of services for

which liability is imposed by the

court. . . .

New 54(d)(2)(C)

(C) Proceedings. . . . The court may

decide issues of liability for fees

before receiving submissions

on the value of services. . . .
62 The Scribes Journal of Legal Writing 2008–2009

• 26(b)(3); now 26(b)(3)(C): a statement . . . previously made by that

person/the person’s own previous statement.

• 28(c): a relative or employee or attorney or counsel of any of the

parties/any party’s relative, employee, or attorney.

• 35(b)(2): a report of the examination so ordered/the examiner’s

report.

• 60(a): with leave of the appellate court/with the appellate court’s

leave.

A second — and similar — technique for minimizing of-phrases

and other prepositional phrases: convert them to adjectives. Of

course, some of the phrases are used repeatedly.

• 4(d)(1); now 4(d)(5): the jurisdiction of the court over the person of

the defendant/personal jurisdiction.

• 4(k)(1)(D); now 4(k)(1)(C): a statute of the United States/a federal

statute.

• 26(b); now 26(b)(1): by order of the court/by court order.

• 32(a)(4); now 32(a)(8): action . . . in any court of the United States

or of any State/any federal- or state-court action.

• 38(b): trial by jury/jury trial.

• 54(c): judgment by default/default judgment.

• 57: an action for a declaratory judgment/a declaratory-judgment

action.

• 63: trial without a jury/nonjury trial.

• 69(a); now 69(a)(1): a judgment for the payment of money/a money

judgment.
2008–2009 Drafting Lessons — Civil Rules 63

8 For a long list, see Kimble, Plain Words, in Lifting the Fog of Legalese, supra n. 2, at

170–71.

9 C. Edward Good, Mightier Than the Sword 73 (Blue Jeans Press 1989).

A third technique: convert [article] [noun] of into an -ing form.

• 11(c)(2)(A); now 11(c)(5)(A): for a violation of subdivision (b)(2)/

for violating Rule 11(b)(2).

• 16(c)(4); now 16(c)(2)(D): the avoidance of unnecessary proof/

avoiding unnecessary proof.

• 16(c)(7); now 16(c)(2)(G): the identification of witnesses/identifying witnesses.

• 23.2: in the conduct of the action/in conducting the action.

• 37(g); now 37(f): the development and submission of a proposed

discovery plan/developing and submitting a proposed discovery

plan.

• 61: no error in either the admission or the exclusion of evidence/no

error in admitting or excluding evidence.

12. Replace multiword prepositions.

Multiword prepositions — also called compound or complex

or phrasal prepositions — are pervasive in legal writing.8 One writer

calls them the “compost of our language.”9

 You can almost always

replace them with a simpler preposition, the one that you would

probably use in speech.

• 4(i)(3); now 4(i)(4): for the purpose of curing the failure/to cure its

failure.
64 The Scribes Journal of Legal Writing 2008–2009

• 16(c); now 16(c)(2): take appropriate action with respect to/take

appropriate action on.

• 16(c), last sentence; now 16(c)(1): in order to consider possible

settlement/to consider possible settlement.

• 16(c)(13); now 16(c)(2)(M): a separate trial pursuant to Rule 42(b)/

a separate trial under Rule 42(b). [Imagine how many times this

one occurs.]

• 26(a)(1), last paragraph; now 26(a)(1)(C): in the circumstances of

the action/in this action.

• 26(a)(3)(B); now 26(a)(3)(A)(ii): whose testimony is expected to be

presented by means of a deposition/whose testimony the party expects to present by deposition.

• 30(c); now 30(c)(1): under the provisions of the Federal Rules of

Evidence/under the Federal Rules of Evidence.

• 32(a)(3)(E); now 32(a)(4)(E): such exceptional circumstances exist

as to make it desirable/exceptional circumstances make it desirable.

• 35(b)(3); now 35(b)(6): in accordance with the provisions of any

other rule/under other rules.

• 41(a)(2): prior to the service upon the defendant of the plaintiff’s

motion to dismiss/before being served with the plaintiff’s motion to

dismiss.

• 44(b): in the case of a domestic record/for domestic records.

• 64; now 64(a): during the course of an action/throughout an action.

• 71: in favor of a person who is not a party to the action/for a nonparty.
2008–2009 Drafting Lessons — Civil Rules 65

13. Collapse clauses into a word or two when possible.

Here are a handful of examples:

• 11(c)(3); now 11(c)(6): the conduct determined to constitute a violation of this rule/the sanctioned conduct.

• 11(d): motions that are subject to the provisions of Rules 26 through

37/motions under Rules 26 through 37.

• 14(a); now 14(a)(1): a person not a party to the action/a nonparty.

• 26(a)(1)(D); now 26(a)(1)(A)(iv): a judgment which may be entered/a possible judgment.

• 26(g)(3): the person who made the certification/the signer.

• 30(a)(2); now 30(a)(2)(B): the person to be examined/the deponent.

• 33(b)(3); now 33(b)(2): the party upon whom the interrogatories

have been served/the responding party.

• 45(b)(3); now 45(b)(4): the court by which the subpoena is issued/

the issuing court.

• 50(d); now 50(e): the party who prevailed on that motion/the prevailing party.

Let’s return to our general prescription to omit needless words.

By combining all the techniques for doing that — and trying to say

what you mean simply and directly — we produce differences like

this.
66 The Scribes Journal of Legal Writing 2008–2009

Old 12(a)(2)

(2) A party served with a pleading stating a cross-claim against

that party shall serve an answer

thereto within 20 days after being

served. The plaintiff shall serve a

reply to a counterclaim in the answer within 20 days after service

of the answer . . . . [43 words]

New 12(a)(1)(B)

(B) A party must serve an answer to

a counterclaim or crossclaim

within 20 days after being

served with the pleading that

states the counterclaim or

crossclaim. [26 words]

Old 25(a)(2)

(2) In the event of the death of

one or more of the plaintiffs or of

one or more of the defendants in

an action in which the right sought

to be enforced survives only to the

surviving plaintiffs or only against

the surviving defendants, the action does not abate. . . . [49 words]

New 25(a)(2)

(2) Continuation Among the Remaining Parties. After a party’s

death, if the right sought to be

enforced survives only to or

against the remaining parties,

the action does not abate . . . .

[24 words]

Old 35(b)(2)

(2) By requesting and obtaining

a report of the examination so ordered or by taking the deposition

of the examiner, the party examined waives any privilege the party

may have in that action or any

other involving the same controversy, regarding the testimony of

every other person who has examined or may thereafter examine the

party in respect of the same mental

or physical condition. [64 words]

New 35(b)(4)

(4) Waiver of Privilege. By requesting and obtaining the

examiner’s report, or by deposing the examiner, the party

examined waives any privilege

it may have — in that action or

any other action involving the

same controversy — concerning testimony about all

examinations of the same condition. [41 words]
2008–2009 Drafting Lessons — Civil Rules 67

Old 39(a)

(a) By Jury. When trial by jury

has been demanded as provided in

Rule 38, the action shall be designated upon the docket as a jury

action. The trial of all issues so demanded shall be by jury, unless (1)

the parties or their attorneys of

record, by written stipulation filed

with the court or by an oral stipulation made in open court and

entered in the record, consent to

trial by the court sitting without a

jury or (2) the court upon motion

or of its own initiative finds that a

right of trial by jury of some or all

of those issues does not exist under

the Constitution or statutes of the

United States. [111 words]

New 39(a)

(a) When a Demand Is Made.

When a jury trial has been demanded under Rule 38, the

action must be designated on

the docket as a jury action. The

trial on all issues so demanded

must be by jury unless:

(1) the parties or their attorneys

file a stipulation to a

nonjury trial or so stipulate

on the record; or

(2) the court, on motion or on

its own, finds that on some

or all of those issues there is

no federal right to a jury

trial. [78 words]

Old 62(f)

(f) Stay According to State

Law. In any state in which a judgment is a lien upon the property of

the judgment debtor and in which

the judgment debtor is entitled to

a stay of execution, a judgment

debtor is entitled, in the district

court held therein, to such stay as

would be accorded the judgment

debtor had the action been maintained in the courts of that state.

[62 words]

New 62(f)

(f) Stay in Favor of a Judgment

Debtor Under State Law. If a

judgment is a lien on the judgment debtor’s property under

the law of the state where the

court is located, the judgment

debtor is entitled to the same

stay of execution the state court

would give. [38 words]
68 The Scribes Journal of Legal Writing 2008–2009

Old 65(a)(2)

(2) Consolidation of Hearing

With Trial on Merits. . . . This

subdivision (a)(2) shall be so construed and applied as to save to the

parties any rights they may have to

trial by jury. [23 words]

New 65(a)(2)

(2) Consolidating the Hearing

with the Trial on the Merits. . . .

But the court must preserve

any party’s right to a jury trial.

[12 words]

Old 64

At the commencement of and

during the course of an action, all

remedies providing for seizure of

person or property for the purpose

of securing satisfaction of the judgment ultimately to be entered in the

action are available under the circumstances and in the manner

provided by the law of the state in

which the district court is held, existing at the time the remedy is

sought . . . . [67 words]

New 64(a)

(a) Remedies Under State Law

— In General. At the commencement of and throughout

an action, every remedy is

available that, under the law of

the state where the court is located, provides for seizing a

person or property to secure

satisfaction of the potential

judgment. . . . [38 words]

Old 71A(k)

(k) Condemnation Under a

State’s Power of Eminent Domain. The practice as herein

prescribed governs in actions involving the exercise of the power of

eminent domain under the law of a

state, provided that if the state law

makes provision for trial of any issue by jury, or for trial of the issue

of compensation by jury or commission or both, that provision

shall be followed. [57 words]

New 71.1(k)

(k) Condemnation Under a

State’s Power of Eminent

Domain. This rule governs an

action involving eminent domain under state law. But if

state law provides for trying

an issue by jury — or for trying the issue of compensation

by jury or commission or

both — that law governs.

[38 words]
2008–2009 Drafting Lessons — Civil Rules 69

How about that? Imagine the effect on generations of law students who, for three years, have had to labor through drafting bogs

like those on the left, thinking they must be perfectly good and

normal.

I’ll end my drafting lessons with this fifth part. But there is still

so much — so many improvements on the old civil rules — that I

haven’t been able to cover.

I haven’t, for instance, covered the rampant inconsistencies in

the old rules. Among them:

• for cause shown; upon cause shown; for good cause; for

good cause shown.

• on motion; on application.

• court orders; court directs.

• make orders; issue orders.

• counsel; attorney.

• costs, including reasonable attorney’s fees; reasonable

costs and attorney’s fees; reasonable expenses, including

attorney’s fees; reasonable expenses, including a reasonable attorney’s fee.

• no genuine issue as to any material fact; without substantial controversy; actually and in good faith controverted; not in controversy.
70 The Scribes Journal of Legal Writing 2008–2009

Nor have I been able to catalogue the many syntactic ambiguities

in the old rules. I offered several examples in my February 2005

Guiding Principles memo,10 and there’s one at the end of guideline

2, but those are only a start.

Some of the improvements in the new rules — especially the

structural changes — can’t be easily illustrated. But if you’d like to

see the striking difference made by reorganizing jumbled provisions, compare the old rules with new 6(c), 8(b), 16(b), 23.1, 26(e),

30(b), 37(d), 44(a)(2), 45(c)(2)(B), 52(a), and 70. More specifically,

let me offer just one example of the greater coherence that comes

from grouping related items — here, general or routine authority

(versus sanctioning authority).

1 0 See Kimble, supra n. 1, at xvi–xvii.

continued on page 71

Old 53(c) & (d)

(c) Master’s Authority.

Unless the appointing order

expressly directs otherwise, a

master has authority to regulate

all proceedings and take all appropriate measures to perform

fairly and efficiently the assigned duties. The master may

by order impose upon a party

any noncontempt sanction provided by Rule 37 or 45, and

may recommend a contempt

sanction against a party and

sanctions against a nonparty.

(d) Evidentiary Hearings.

Unless the appointing order

expressly directs otherwise, a

master conducting an evidenNew 53(c)

(c) Master’s Authority.

(1) In General. Unless the appointing order directs

otherwise, a master may:

(A) regulate all proceedings;

(B) take all appropriate

measures to perform the

assigned duties fairly and

efficiently; and

(C) if conducting an evidentiary hearing, exercise the

appointing court’s power to

compel, take, and record

evidence.

(2) Sanctions. The master may by

order impose on a party any

noncontempt sanction pro-
2008–2009 Drafting Lessons — Civil Rules 71

For more of the same, compare the old rules with new 30(c) & (d)

(grouping the materials on objections in (c) only); new 37(b)(2)(A)

& (B) (breaking out the illogical grouping in old (b)(2)(C) & (E));

new 37(c)(1) (grouping the sanctions into a list); and new 52(a)

(grouping the last sentence of old (b) with the other material on

findings and conclusions). The organizational changes — even without changing any of the main numbers — have significantly

transformed the rules.

Finally, this article has barely touched on formatting. I’ll do that

in guideline 14 below, but the new rules are designed to make it

much easier to see how everything fits together. They are broken

down into more levels — hence the greater use of headings and

subheadings; they use progressive, or cascading, indents to show

subparts and sub-subparts; they use hanging indents so that all the

lines in a subpart or a list are indented the same as the first word in

the first line (see new 53(c) above); they use many more vertical

lists; and the lists are always at the end of the sentence, never in the

middle.

Unfortunately, in most of the academic pamphlets containing

the new rules, the publishers have largely mangled the intended

formatting. That’s quite a disappointment after the concerted effort

we made. But I have contacted the major publishers, urging them

to adjust the formatting and offering to help them help their readers.

In any event, here are six more guidelines.

continued from page 70

Old 53(c) & (d)

tiary hearing may exercise the

power of the appointing court

to compel, take, and record evidence.

New 53(c)

vided by Rule 37 or 45, and

may recommend a contempt

sanction against a party and

sanctions against a nonparty.
72 The Scribes Journal of Legal Writing 2008–2009

14. Use informative headings and subheadings.

Good headings and subheadings are vital navigational aids for

the reader. The old rules had 359 of them; the new rules have 757.

Just to illustrate their value:

Old 16(b)

(b) Scheduling and Planning.

New 16(b)

(b) Scheduling.

(1) Scheduling Order.

(2) Time to Issue.

(3) Contents of the Order.

(A) Required Contents.

(B) Permitted Contents.

(4) Modifying a Schedule.

Old 8(b)

(b) Defenses; Form of Denials.

New 8(b)

(b) Defenses; Admissions and Denials.

(1) In General.

(2) Denials — Responding to the

Substance.

(3) General and Specific Denials.

(4) Denying Part of an Allegation.

(5) Lacking Knowledge or Information.

(6) Effect of Failing to Deny.
2008–2009 Drafting Lessons — Civil Rules 73

Old 26(a)

(a) Required Disclosures;

Methods to Discover Additional Matter.

(1) Initial Disclosures.

(2) Disclosure of

Expert Testimony.

(3) Pretrial Disclosures.

(4) Form of Disclosures.

(5) [Now deleted]

New 26(a) [amendment pending, 2009]

(a) Required Disclosures.

(1) Initial Disclosure.

(A) In General.

(B) Proceedings Exempt from

Initial Disclosure.

(C) Time for Initial Disclosures

— In General.

(D)Time for Initial Disclosures

— For Parties Served or

Joined Later.

(E) Basis for Initial Disclosure;

Unacceptable Excuses.

(2) Disclosure of Expert Testimony.

(A) In General.

(B) Written Report.

(C) Time to Disclose Expert Testimony.

(D) Supplementing the Disclosure.

(3) Pretrial Disclosures.

(A) In General.

(B) Time for Pretrial

Disclosures; Objections.

(4) Form of Disclosures.
74 The Scribes Journal of Legal Writing 2008–2009

15. Be wary of intensifiers.

Intensifiers are expressions that may seem to add emphasis but

that, as a matter of good drafting, should be minimized for any 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.

• 4(d)(2)(A): The notice . . . shall be in writing and shall be addressed

directly to the defendant. How would you address a written notice

indirectly?

Old 68 [about offer of judgment] New 68

(a) Making an Offer; Judgment

on an Accepted Offer.

(b) Unaccepted Offer.

(c) Offer After Liability Is

Determined.

(d) Paying Costs After an

Unaccepted Offer.

Old 31(a)

(a) Serving Questions;

Notice.

New 31(a)

(a) When a Deposition May Be

Taken.

(1) Without Leave.

(2) With Leave.

(3) Service; Required Notice.

(4) Questions Directed to an Organization.

(5) Questions from Other Parties.
2008–2009 Drafting Lessons — Civil Rules 75

• 6(a): any period of time prescribed . . . by any applicable statute.

Are we concerned about an inapplicable statute?

• 6(b) (and several other rules): the court . . . may . . . in its discretion.

May means “has the discretion to”; in its discretion is a pure intensifier.

• 12(b): may at the option of the pleader. Same theory.

• 15(d): If the court deems it advisable . . . , it shall so order. Presumably, the court would not choose to do something inadvisable.

• 41(d): the court may make such order for the payment of costs . . . as

it may deem proper. Same theory.

• 53(c) & (d): Unless the appointing 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.

• 56(e): affidavits . . . shall 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.

• 61: inconsistent with substantial justice. Substantial seems to add

nothing—or nothing appreciable.

• 70: The court may . . . in proper cases. The same theory as in 15(d)

above.

16. Hunt down nouners.

Nouners is a term I coined to describe abstract nouns that take

the place of strong verbs.11 The tendency to turn strong verbs into

1 1 Joseph Kimble, Hunting Down Nouners, 86 Mich. B.J. 44 (Feb. 2007) (available at

http://www.michbar.org/journal/pdf/pdf4article1124.pdf).
76 The Scribes Journal of Legal Writing 2008–2009

abstract nouns accompanied by weak verbs (is, do, make, have) is

one of the worst faults in modern writing. And the old civil rules

are full of nouners.

• 4(l); now 4(l)(3): failure to make proof of service/failure to prove

service.

• 6(b); now 6(b)(1)(A): before the expiration of the period originally

prescribed/before the original time . . . expires.

• 7.1(b)(2): upon any change in the information that the statement

requires/if any required information changes.

• 11(c)(2)(A); now 11(c)(5)(A): for a violation of subdivision (b)(2)/

for violating Rule 11(b)(2).

• 13(a); now 13(a)(2)(B): the opposing party brought suit upon the

claim/the opposing party sued on its claim.

• 15(c)(3); now 15(c)(1)(C)(i): maintaining a defense on the merits/

defending on the merits.

• 26(g)(3): if . . . a certification is made in violation of the rule/if a

certification violates this rule.

• 30(b)(2); now 30(b)(3)(A): any party may arrange for a transcription to be made . . . of a deposition/any party may arrange to

transcribe a deposition.

• 30(e); now 30(e)(1): before completion of the deposition/before the

deposition is completed.

• 30(f)(2); now 30(f)(3): upon payment of reasonable charges therefor, the officer shall/when paid reasonable charges, the officer must.

• 41(b): for failure of the plaintiff to prosecute/if the plaintiff fails to

prosecute.
2008–2009 Drafting Lessons — Civil Rules 77

• 45(a)(1)(C); now 45(a)(1)(A)(iii): give testimony/testify.

• 47(a): conduct the examination of prospective jurors/examine prospective jurors.

• 49(b); now 49(b)(1): make answers to the interrogatories/answer

the questions.

There are lots more where those came from.

17. Simplify inflated diction.

There’s no need to belabor this point — and I’ve had my say on

it anyway.12 Just ask yourself whether the plain words on the right

below in any way cheapen, dumb down, debase, distort, oversimplify, or dull the new rules. Remember Walt Whitman’s line: “The

art of art, the glory of expression . . . is simplicity. Nothing is better

than simplicity . . . .”13

• 4 (throughout): effect service/make service or serve.

• 4(d)(2), last sentence; now 4(d)(2)(A): subsequently incurred/later

incurred.

• 4(d)(2)(B); now 4(d)(1)(G): dispatched/sent.

• 8(b); now 8(b)(4): remainder/rest.

• 9(a); now 9(a)(2): specific negative averment/specific denial.

• 12(e): interposing a responsive pleading/filing a responsive pleading.

1 2 See Kimble, Plain Words, in Lifting the Fog of Legalese, supra n. 2, at 163–69.

1 3 Preface to Leaves of Grass.
78 The Scribes Journal of Legal Writing 2008–2009

• 15(b); now 15(b)(1): will be subserved/will aid.

• 30(b)(4); now 30(b)(5)(C): concerning/about.

• 30(e); now 30(e)(1)(B): reciting such changes/listing the changes.

• 30(e); now 30(e)(2): append/attach.

• 32(a)(3), last sentence; now 32(a)(5)(B): demonstrates/shows.

• 32(d)(3)(C): propounding [the question]/submitting the question.

• 32(d)(4): ascertained/known.

• 36(b): will be subserved/would promote.

• 37(a)(2)(B); now 37(a)(3)(C): the proponent of the question/the

party asking a question.

• 37(b), last sentence; now 37(b)(2)(C): in lieu of/instead of.

• 37(c)(2): thereafter/later.

• 41(a)(2): deems/considers.

• 49(b); now 49(b)(2): harmonious/consistent.

• 62(d): procuring/obtaining.

• 65(b); now 65(b)(2): be indorsed with the date/state the date.

18. Banish shall.

The most telling indictment of most lawyers’ drafting incompetence is that they fall apart over the most important words in the

drafting lexicon — the words of authority, the words that are supposed to create a requirement or confer permission. The prime
2008–2009 Drafting Lessons — Civil Rules 79

offender, as it has been for centuries, is shall. The word has been so

corrupted by misuse that it has become inherently ambiguous. It

should mean “must,” but too often it’s used to mean or interpreted

to mean “should” or “may” — not to mention those instances in

which, because no requirement or permission is intended, the simple

present tense of the verb is called for. No wonder, then, that Words

and Phrases online cites more than 1,600 appellate cases interpreting shall.

14

But a remarkable thing happened in the mid-1990s: the Standing Committee on Rules of Practice and Procedure, which reviews

and must approve the work of all five advisory committees on federal rules (civil, criminal, appellate, evidence, and bankruptcy),

decided to abolish shall. The decision was given effect in 4.2 of Bryan

Garner’s Guidelines for Drafting and Editing Court Rules, published by the Administrative Office of the United States Courts in

1996. That pamphlet has guided all four restylings of the federal

rules (in order, appellate, criminal, civil, and now evidence), as well

as all new and amended rules.

If the wisdom of deep-sixing shall needs any testament, you’ll

find it in statistics from the old and new civil rules. Some of the

numbers are rounded off because the counting can be tricky and

because my purpose is not to be exact but just to give a good idea

of shall’s sloppiness.

The old rules contained almost 500 shalls, not including those

in rules that were deleted (such as Rule 86(b)–(d)). Of the 500, some

375 were converted to must in the new rules; 25% of the time, then,

shall was not converted to its presumed meaning of “must.”

There are five categories to consider.

First, shall was changed to a present-tense verb about 50 times.

The conversion was easier in some cases than in others.

1 4 Search in Westlaw, Words–Phrases database, using the search “shall” (Oct. 5, 2009)

(yielding 1,632 results).
80 The Scribes Journal of Legal Writing 2008–2009

Old 27(a)(3)

(3) Order and Examination. . . . For the purpose of

applying these rules to depositions for perpetuating

testimony, each reference

therein to the court in which

the action is pending shall be

deemed to refer to the court in

which the petition for such

deposition was filed.

New 27(a)(3)

(3) Order and Examination. . . . A

reference in these rules to the

court where an action is pending

means, for purposes of this rule,

the court where the petition for

the deposition was filed.

Old 2

There shall be one form of

action to be known as “civil

action”.

New 2

There is one form of action — the

civil action.

Old 57

The procedure for obtaining

a declaratory judgment pursuant to Title 28, U.S.C., § 2201,

shall be in accordance with

these rules . . . .

New 57

These rules govern the procedure for

obtaining a declaratory judgment

under 28 U.S.C. § 2201. . . .
2008–2009 Drafting Lessons — Civil Rules 81

Second, shall was twice changed to will. Example:

The fourth category is more complicated. Shall was converted

to some kind of may-formulation about 25 times. But they fall into

different patterns, different subcategories — four, in fact.

Pattern 1: a requirement was turned into mere permission. This

happened five times that I found. Example:

Old 78

[E]ach district court shall

establish regular times and

places . . . at which motions requiring notice and hearing may

be heard and disposed of . . . .

New 78

(a) Providing a Regular Schedule for

Oral Hearings. A court may establish regular times and places for oral

hearings on motions.

Old 27(a)(3)

(3) Order and Examination. . . . [T]he court . . . shall

make an order . . . specifying . . .

whether the depositions shall

be taken upon oral examination

or written interrogatories. . . .

New 27(a)(3)

(3) Order and Examination. . . .

[T]he court must issue an order

that . . . states whether the depositions will be taken orally or by

written interrogatories. . . .

Third, shall was changed to should 14 times. Example:

Old 54(a)

(a) Definition; Form. . . . A

judgment shall not contain a

recital of pleadings . . . .

New 54(a)

(a) Definition; Form. . . . A judgment

should not include recitals of pleadings . . . .
82 The Scribes Journal of Legal Writing 2008–2009

Pattern 2: the old rule used a clumsy shall-phrase to grant permission. This happened just once.

Pattern 4: the old rule used shall not or no _____ shall to create

a prohibition, usually a qualified prohibition. Note that a qualified

prohibition is, in effect, conditional permission. What you can’t do

in certain circumstances you presumably can do if the circumstances

don’t exist. This pattern occurred more than 15 times. Examples:

Pattern 3: the old rule used shall . . . only instead of may . . . only

to create conditional permission. This happened at least four times.

Example:

Old 71A(h)

(h) Trial. . . . Each party

shall have the right to object

for valid cause to the appointment of any person as a

commissioner or alternate.

New 71.1(h)(2)(C)

(C) Examining the Prospective Commissioners. . . . The parties . . . for

good cause may object to a prospective commissioner or alternate.

Old 16(e)

(e) Pretrial Orders. . . .

The order following a final

pretrial conference shall be

modified only to prevent manifest injustice.

New 16(e)

(e) Final Pretrial Conference and

Orders. . . . The court may modify

the order issued after a final pretrial

conference only to prevent manifest

injustice.
2008–2009 Drafting Lessons — Civil Rules 83

Old 65(a)(1)

(1) Notice. No preliminary

injunction shall be issued without notice to the adverse party.

New 65(a)(1)

(1) Notice. The court may issue a preliminary injunction only on notice

to the adverse party.

 Of course, shall should never be used to grant permission; that

calls for may. For conditional permission, may . . . only is usually

the logical choice. To deny permission, the drafter may either create a prohibition with must not or use may not; they typically come

out to the same thing. Just be careful that may not can’t plausibly

be read as “might not.”

Old 23.1

. . . The [derivative] action

shall not be dismissed or compromised without the approval

of the court . . . .

New 23.1(c)

(c) Settlement, Dismissal, and Compromise. A derivative action may

be settled, voluntarily dismissed, or

compromised only with the court’s

approval. . . .

Old 17(a)

(a) Real Party in Interest. . . .

No action shall be dismissed on

the ground that it is not prosecuted in the name of the real

party in interest until a reasonable time has been allowed

after objection for ratification

of commencement of the action

by, or joinder or substitution

of, the real party in interest . . . .

New 17(a)(3)

(3) Joinder of the Real Party in Interest. The court may not dismiss an

action for failure to prosecute in

the name of the real party in interest until, after an objection, a

reasonable time has been allowed

for the real party in interest to

ratify, join, or be substituted into

the action. . . .
84 The Scribes Journal of Legal Writing 2008–2009

Here again are the overall totals for shalls that were not converted to must in the civil rules: 50 present-tense verbs, 2 wills, 14

shoulds, 25 may-formulations, and 35 disappearances through tightening.

Now, after all that, an incredible postscript. When the restyled

rules took effect on December 1, 2007, they gloriously contained

not a single shall. But that will probably change on December 1,

2010. One shall will be reintroduced.

Before restyling, the all-important rule on summary judgment,

Rule 56(c), said that the judgment shall be rendered . . . if . . . there

is no genuine issue as to any material fact . . . . The restyled

rule changed the shall to should. After the restyling, the Advisory

Old 30(b)(5)

(5) The notice to a party deponent may be accompanied by

a request made in compliance

with Rule 34 for the production

of documents and tangible

things at the taking of the deposition. The procedure of Rule

34 shall apply to the request.

New 30(b)(2)

(2) Producing Documents. . . . The notice to a party deponent may be

accompanied by a request under

Rule 34 to produce documents and

tangible things at the deposition.

Old 79(a)

(a) Civil Docket. . . . These

[docket] entries shall be brief

but shall show the nature of

each paper filed . . . .

New 79(a)(3)

(3) Contents of Entries; Jury Trial Demanded. Each [docket] entry must

briefly show the nature of the paper

filed . . . .

Returning to our five main categories, we come to our fifth and

last one: almost 35 times, a rule was tightened and transformed in a

way that eliminated shall altogether. Examples:
2008–2009 Drafting Lessons — Civil Rules 85

1 5 See Mark R. Kravitz, Report of Advisory Committee on Civil Rules 215–33 (May 8,

2009) (available at http://www.uscourts.gov/rules/Agenda%20Books/Standing/

ST2009-06.pdf) (summarizing the divided comments from the public).

1 6 Id. at 111.

1 7 See Kimble, How to Mangle Court Rules and Jury Instructions, in Lifting the Fog of

Legalese, supra n. 2, at 105, 119–21 (distinguishing between vagueness and ambiguity).

1 8 See Kimble, Lifting the Fog of Legalese, supra n. 2, at app. 1 (quoting centuries of

criticism).

Committee decided to amend the substance of Rule 56, and a battle

ensued over whether the original shall meant “must” or “should.”15

And because the Advisory Committee could not decide on the

meaning, they reinstated shall — while at the same time acknowledging that it is “inherently ambiguous.”16

What a classic lesson in why shall should never appear in a legal

document. It is inherently ambiguous, and ambiguity (not to be

confused with vagueness) is the worst sin in legal drafting.17

19. Above all, avoid hardcore legalese.

We come at last to the kind of talk and writing that has brought

endless ridicule on our profession — and rightly so.

18 There is no

excuse for it. Thus, the new rules have done away with pursuant to.

They have done away with provided that (provisos). They have

done away with 500 — no, 499 — shalls. They don’t use such when

it means “a” or “the.” They don’t use hereof or therefor or wherein.

In fact, the new rules have banished all the here-, there-, and wherewords, with one painful exception. Rules 59(a)(1)(A) & (B) refer to

“any reason for which a new trial [or rehearing] has heretofore been

granted . . . in federal court.” Can you guess why the Advisory

Committee left these heretofores? Because, here again, they could

not decide whether it meant “up until 1937,” when the rules were
86 The Scribes Journal of Legal Writing 2008–2009

originally drafted, or “up until now,” when a judge is applying the

rules. And if that isn’t another perfect example of the pseudoprecision of legalese, I don’t know what is.

A few final examples from the old and new rules:

Old 4(l)

(l) Proof of Service. If service is

not waived, the person effecting

service shall make proof thereof to

the court. If service is made by a

person other than a United States

marshal or deputy United States

marshal, the person shall make affidavit thereof. . . .

New 4(l)(1)

(l) Proving Service.

(1) Affidavit Required. Unless

service is waived, proof of

service must be made to the

court. Except for service by

a United States marshal or

deputy marshal, proof must

be by the server’s affidavit.

Old 12(g)

(g) Consolidation of Defenses

in Motion. A party who makes a

motion under this rule may join

with it any other motions herein

provided for and then available to

the party. . . .

New 12(g)(1)

(g) Joining Motions.

(1) Right to Join. A motion under this rule may be joined

with any other motion allowed by this rule.

Old 37(b)(2)

(2) Sanctions by Court in

Which Action Is Pending. . . .

[T]he court in which the action is

pending may make such orders in

regard to the failure [to obey certain orders] as are just, and among

others the following:

. . .

continued on page 87

New 37(b)(2)

(2) Sanctions in the District Where

the Action Is Pending.

(A) For Not Obeying a Discovery

Order. . . . [T]he court where

the action is pending may issue further just orders. They

may include the following:

. . .
2008–2009 Drafting Lessons — Civil Rules 87

continued from page 86

Old 49(a)

(a) Special Verdicts. . . . The

court shall give to the jury such

explanation and instruction concerning the matter thus submitted

as may be necessary to enable the

jury to make its findings upon

each issue. . . .

New 49(a)(2)

(2) Instructions. The court must

give the instructions and explanations necessary to enable

the jury to make its findings

on each submitted issue.

Old 37(b)(2)

(E) Where a party has failed

to comply with an order

under Rule 35(a) requiring that party to produce

another for examination,

such orders as are listed

in paragraphs (A), (B),

and (C) of this subdivision, unless the party

failing to comply shows

that that party is unable

to produce such person

for examination.

In lieu of any of the foregoing

orders or in addition thereto, the

court shall . . . .

New 37(b)(2)

(B) For Not Producing a Person for Examination. If a

party fails to comply with

an order under Rule 35(a)

requiring it to produce

another person for examination, the court may issue

any of the orders listed in

Rule 37(b)(2)(A)(i)–(vi),

unless the disobedient

party shows that it cannot

produce the other person.

(C) Payment of Expenses.

Instead of or in addition to

the orders above, the court

must . . . .
88 The Scribes Journal of Legal Writing 2008–2009

Let’s end where we began. The restyled civil rules are a dramatic improvement on the old rules. The new rules will be far

easier for law students to learn and for lawyers and judges to use.

If any inadvertent substantive changes were made, they can be

fixed. And people who resisted this conversion probably did not

appreciate how poorly drafted the old rules were, how they perpetuated the serious deficiencies that have plagued us for so long,

how we should not be forever stuck in time, and how the new

rules mark a long stride forward for legal writing and professional

competence — not to mention the practice of law.

Old 52(a)

(a) Effect. In all actions tried

upon the facts without a jury or with

an advisory jury, the court shall find

the facts specially and state separately its conclusions of law thereon,

and judgment shall be entered pursuant to Rule 58 . . . .

New 52(a)(1)

(a) Findings and Conclusions.

(1) In General. In an action

tried on the facts without a

jury or with an advisory

jury, the court must find

the facts specially and state

its conclusions of law

separately. . . . Judgment

must be entered under

Rule 58.