eCOMMITTEE ON RULES OF PRACTICEAND PROCEDURE^

OF THE

JUDICIAL CONFERENCE OF THE UNITED STATES

WASHINGTON, D.C. 20544

DAVID F. LEVI CHAIRS OF ADVISORY COMMITTEES

CHAIR

''SAMUEL A. ALITO, JR.

PETER G. McCABE APPELLATERULES

SECRETARY .

THOMAS S. ZILLY

BANKRUPTCYRULES

LEE H. ROSENTHAL

CIVIL RULES

TO: All Readers'-

SUSAN C. BUCKLEW

-FROM: Joseph Kimble, Style Consultant C

Thomas Cooley Law School -JERRY E. SMITH

EVIDENCE RULES

DATE: February 21, 2005

RE: GUIDING PRINCIPLES FOR RESTYHNG THE CIVIL RULES

This memorandum'is meant to introduce readers to the restyled Federal'Rules of

Civil Procedure.' It briefly describes the process for producing the restyled rules and then

highlights some of the main style considerations and constraints.

The Style Process

This project was a style project, and the Advisory Committee on Civil Rules took

extraordinary steps to avoid making any substantive changes. Here is an outline of those

steps.

First, the style consultants prepared an original working draft -the redraft of the - current rules.

Second, the Committee's reporter, along with one of two other experts on civil

procedure, reviewed the draft in detailed memorandums that identified possible changes

in meaning.

Third, the style'consultants revised the original draft in light of the experts'

comments. This produced draft #2, which footnoted any outstanding issues.

Fourth, draft #2 was' submitted to the Style' Subcommittee of the 'Standinmg

Committee on Rules, which itself included an academic expert on civil procedure. The

Style Subcommittee reviewed the entire draft, including the outstanding issues. The

Style Subcommittee resolved many of the issues but decided that some were better

resolved by the-Advisory Committee.' The Style Subcommittee's work resulted in draft'

#3. The reporter footnoted draft #3 for review by the Advisory Committee.

x
xi 

 Fifth, the Advisory Committee broke down into Subcommittees A and B, each of 

which reviewed half the rules. If a “significant minority” of Subcommittee A or B 

thought that certain wording created a substantive change, then the wording was not 

approved. One of two representatives of the ABA’s Litigation Section submitted 

comments on the drafts, attended each Subcommittee meeting, and participated in the 

discussion. The work of the Subcommittees resulted in draft #4. 

 Sixth, the full Advisory Committee reviewed the work of the Subcommittees, 

concentrating on issues that the Subcommittees thought should be resolved by the full 

Committee. This resulted in draft #5, the final draft. 

 Seventh, the restyled rules were reviewed by the Standing Committee — and 

changed in response to its suggestions — as each set of rules was produced. 

 This process has taken two and a half years and produced more than 600 

documents. Anyone who reviews this archive will realize how much time and care and 

expertise were involved in preparing the restyled rules. The Committee’s watchword 

appears in every Committee Note: “These changes are intended to be stylistic only.” 

Everything that applied before this style project applies after the project. 

Style Matters

In General 

 At the outset, the Advisory Committee adopted these authoritative guides on 

drafting and style: for drafting, Bryan Garner’s Guidelines for Drafting and Editing 

Court Rules; for usage and style, Garner’s Dictionary of Modern Legal Usage (2d ed. 

1995); for spelling, Merriam-Webster’s Collegiate Dictionary (11th ed. 2003). These 

sources will explain many of the Committee’s decisions — everything from starting 

sentences with But to the use of hyphens and dashes to the preference for verbs rather 

than abstract nouns (serve, not effect service; sued, not brought suit). 

 Of course, it’s difficult to even begin to describe the myriad style questions that 

arose during the project. The Committee developed a chart (see Appendix A) of more 

than 50 so-called global, or recurring, issues (allege or aver? issue an order or make an 

order?). Then there were the individual style questions — the possible edits — that 

every sentence, clause, and phrase in the rules seemed to present. Start with the first 

sentence of the rules. Should it be all suits of a civil nature? No: all civil actions. 

Should it be with the exceptions stated in Rule 81? No: except as stated in Rule 81. And 

so on, sentence by sentence. 
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 Readers should notice, as they compare the rules side by side, that the restyled 

rules are usually shorter and easier to read. Some of the restyled rules may look longer 

on the page only because of the formatting — the breakdown into subparts and lists. 

Take Rule 9(a). The current rule is 127 words of text; the restyled rule is 78 words. 

 This is not to say that the goal of the project was to cut words; that was a natural 

result of the effort to clarify and simplify. Here are just two short examples: 

Rule 8(e)(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. 

Restyled 

If a party makes alternative statements, the 

pleading is sufficient if any one of them is 

sufficient. 

Rule 71 Restyled 

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. 

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. 

 The overarching style goals were to improve consistency and clarity and to draft 

the rules in a plainer, modern style. The Committee believes that those goals have been 

met, that the improvement is readily apparent, and that judges, lawyers, and law students 

will find the restyled rules much easier to use. 

Formatting 

 Readers will immediately notice the difference in formatting. Look, for instance, 

at Rule 12(a) or 14(a). The restyled rules are better organized into subparts. They use 

more headings and subheadings to guide the readers. They use cascading, or hanging, 

left-side indents so that a rule’s hierarchy is made graphic. They use more vertical lists. 

And the lists are always at the end of the sentence, never in midsentence the way they are 

in current Rules 27(a)(1), 37(d), and 45(c)(3)(B). 
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Consistency 

 Consistency was a difficult challenge. Consistency is the cardinal rule of drafting, 

but after more than 70 years of amendments, the current rules have become stylistically 

inconsistent. To take a trivial example, the rules use attorney fees, attorney’s fees, and 

attorneys’ fees. Another example: the rules use for cause shown, upon cause shown, for 

good cause, and for good cause shown. Another example: the rules use costs, including 

reasonable attorney’s fees; reasonable costs and attorney’s fees; reasonable expenses, 

including attorney’s fees; and reasonable expenses, including a reasonable attorney’s 

fee. As a last example, the rules refer in various ways to the parties’ consent or 

agreement or stipulation, sometimes with the qualifier written or in writing — for a total 

of six possibilities. 

 These examples could be multiplied almost endlessly. And in every instance, the 

Committee had to decide whether any difference was intended — or even what that 

difference might be. Often, it was fairly obvious that the inconsistency had no 

significance. When in doubt, the Committee asked one of its experts on procedure to 

research the question. If the Committee was then able to conclude that no difference was 

intended, the Committee used a single term. If the Committee could not be sure, it did 

not conform the terms, to avoid changing substantive meaning. 

 Rule 56 is an especially important example of the benefits of consistency. The 

standard set out in 56(c) is, of course, no genuine issue as to any material fact. But then 

56(d) uses several variations on no genuine issue: without substantial controversy, 

actually and in good faith controverted, not in controversy. Restyled 56(d)(1) fixes the 

inconsistency by staying with not genuinely at issue. 

 To further achieve consistency, the restyled rules try to present parallel material in 

a parallel way. Current Rule 4(i)(2)(A) starts by addressing service on a United States 

agency, corporation, officer, or employee, but it changes the order of those four in the last 

part of the same sentence. Current Rule 33(b) addresses the content of an answer to an 

interrogatory, then the time for serving it; 34(b) reverses that order when addressing a 

response to a request for inspection. Current Rule 71A(c)(3) talks about furnishing at 

least one copy for the defendants’ use; 71A(f) talks about furnishing for the defendants’ 

use at least one copy. Some rules refer to a hearing or trial; others refer to a trial or 

hearing. The Committee could not possibly catch all the inconsistencies, but it hunted 

for them. 
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Intensifiers 

Another difficult challenge was presented by what the Committee came to call 

“intensifiers.” These are expressions that might seem to add emphasis but that, as a 

matter of good drafting, should be avoided for one of several reasons: they state the 

obvious, their import is so hard to grasp that it has no practical value, or they create 

negative implications for other rules. Examples (without citations): 

• the court may, in its discretion: May means “has the discretion to”; in its 

 discretion is a pure intensifier. 

• if the court deems it advisable, the court may: Presumably, the court would not 

 choose to do something inadvisable, so the if-clause is merely an intensifier. 

• the court may, in proper cases: On the same theory, in proper cases is an 

 intensifier. 

• unless the order expressly directs otherwise: An order cannot implicitly direct; 

 it means only what it says. And using expressly suggests that this order is 

 somehow different from all the other orders in the rules. 

• show affirmatively: Likewise, this rule is not meant to be different from all the 

 other rules that require a party or a document to merely show. 

• substantial justice: Substantial seems to add nothing — or nothing 

 appreciable. 

• reasonable written notice: Using reasonable might imply that, in every other 

 rule that requires notice, the notice does not have to be reasonable. 

• if, for any reason: Here, too, for any reason adds nothing specific and might 

 imply that the bare use of if in other rules means something else. Perhaps only 

 some reasons are good in those other rules. 

Again, the current rules contain many other examples. And again, the Committee 

considered each one individually to determine whether the intensifier had any practical 

significance. 
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Outdated and Repetitious Material

 As you would expect, the Committee also tried to eliminate material that was 

outdated, redundant, or otherwise repetitious. Many of these decisions are reflected in 

the Committee Notes. 

 Some examples of outdated material or language in the current rules: the reference to 

at law or in equity or in admiralty in Rule 1; the reference to demurrers, pleas, and 

exceptions in Rule 7(c); the reference to mesne process in Rule 77(c); the limitation in 

Rule 80 to testimony that was stenographically reported (thus excluding other means of 

recording testimony); and the reference in Rule 81(f) to the now-abolished district 

director of internal revenue. 

 The current rules also contain a number of redundant — or self-evident — crossreferences. Thus, Rule 7(b)(3) requires that motions “be signed in accordance with Rule 

11.” But Rule 11 applies by its own terms to “every pleading, written motion, and other 

paper.” Rule 8(b) states that a general denial is “subject to the obligations set forth in 

Rule 11.” Of course it is; all pleadings are subject to Rule 11. Rule 33(b)(5) states that a 

party submitting interrogatories “may move for an order under Rule 37(a).” But Rule 

37(a) allows sanctions for any failure to make disclosure or to cooperate in discovery. So 

why include the cross-reference to Rule 37 in just one or two discovery rules? The 

trouble with redundant cross-references is that there is no logical end to them. 

 The Committee tried to avoid or minimize repetition in various other ways as well: 

 

• By shortening a second reference to the same thing. Thus, current Rule 72(a) 

allows a magistrate judge to issue an order and then refers three times to the 

magistrate judge’s order. Since there is no other order in sight, the restyled 

rule uses the order for the later references. The same principle applies to 

successive subparts: rather than seeming to start over with each one, we can 

generally trust the reader to read them together. Restyled Rule 4(d)(1) allows a 

plaintiff to request that the defendant waive service of a summons; in (d)(2), 

(3), and (4), we shorten to the request or a waiver. Restyled Rule 16(f)(1)(A) 

refers to a scheduling or other pretrial conference; in (B), we shorten to the 

conference. 

• Similarly, by adopting shorter forms of reference. Rather than repeatedly 

referring to the court from which the subpoena issued in Rule 45, we use the 

issuing court. Rather than the party who prevailed on that motion in Rule 

50(e), we use the prevailing party. 

• By using a list that pulls repeated terms into the introduction to the list, where 

the term is used just once. Compare current and restyled Rule 45(a)(2). 
xvi 

• By merging two provisions that are essentially the same. Current Rules 

26(g)(1) and (2) have three similar sentences about disclosure and discovery; 

the repetitious parts of those six sentences have been merged into two 

sentences in restyled 26(g)(1). Likewise, current Rules 37(a)(2)(A) and (B) 

have a similar sentence about certifying an effort to obtain disclosure or 

discovery; those two sentences have been combined into one in restyled 

37(a)(1). Current Rule 50(b) uses lists that repeat two items verbatim; the 

restyled rule merges the repeated items into one list. 

• By using more pronouns. After referring to a copy of the summons and of the 

complaint in Rule 4(i)(1)(A)(i), we use a copy of each in the subparts that 

immediately follow. After referring to certain materials in Rule 

26(b)(3)(A)(ii), we refer to obtaining their substantial equivalent instead of the 

substantial equivalent of the materials. 

• By avoiding the purest form of repetition — saying the same thing twice. 

 Thus, current Rule 33(d) refers to an examination . . . or inspection. The 

 Committee could see no appreciable difference between those terms. The 

 prime example may be current Rule 36, which repeats in (a) and (b) that an 

 admission is “for purposes of the pending action only.” 

Once again, these examples could be multiplied. 

Syntactic Ambiguity

 The Committee tried to eliminate the syntactic ambiguities that lie hidden in the 

current rules. Some examples: 

• Rule 11(c)(1)(B): the court may enter an order describing the specific conduct 

that appears to violate subdivision (b) and directing an attorney, law firm, or 

party to show cause why it has not violated subdivision (b) with respect 

thereto. What does thereto refer to? 

• Rule 34(a): it’s too long to quote, but the question is whether in the 

possession, custody or control of the [responding] party modifies any 

designated documents. 

 

• Rule 45(c)(3)(B)(iii): is the material beginning with the court may supposed to 

modify all the items in the list or only item (iii)? 
xvii 

• Rule 46: the action which the party desires the court to take or the party’s 

 objection to the action of the court and the grounds therefor. What does 

therefor refer to? 

• Rule 72(a): any portion of the . . . order found to be clearly erroneous or 

 contrary to law. Does clearly modify contrary to law? 

Other Kinds of Changes 

 Below is a short list of some of the other style principles that the Committee 

followed, trying to fix the more obvious deficiencies in the current rules: 

• Reorganize jumbled provisions. For some examples, compare the current rules 

with restyled Rules 6(c), 8(b), 16(b), 23.1, 26(e), 30(b), 37(d), 44(a)(2), 

45(c)(2)(B), and 70. 

• Break up overlong sentences. Compare the current rules with restyled Rules 

4(m), 6(b), 26(b)(3)(A), 26(b)(4)(B), 31(b), 34(a), 56(a), and 56(g). Of course, 

the added vertical lists in the restyled rules automatically break up their 

sentences into manageable pieces. No doubt some of the sentences are still too 

long, and even some of the vertical lists are more complicated than we might 

have liked (see Rule 4(f), for instance). But readers should notice a substantial 

overall improvement. 

• Cut down on cross-references. The experts urge drafters to minimize crossreferences, and the Committee tried to eliminate as many as it reasonably 

could. Current Rule 51, for instance, uses eight cross-references; the restyled 

rule uses two. Again, a good many — perhaps too many — cross-references 

still remain, but many are gone. 

• Minimize of-phrases. Garner’s Guidelines puts it exactly like that. Thus, not 

statute of the United States, but federal statute. Not must include the names of 

all the parties, but must name all the parties. Not after the appearance of a 

defendant, but after any defendant appears. Not the avoidance of unnecessary 

proof, but avoiding unnecessary proof. Not order of the court, but court order. 

• For the same reason, use possessives. The current rules use possessives rather 

sparingly. The restyled rules use them liberally. Not the law of the foreign 

country, but the foreign country’s law. Not the pleadings of the defendants, 

but the defendants’ pleadings. Not the claims of the opposing party, but the 

opposing party’s claims.
xviii 

• Don’t state the obvious. This is one more among the many ways to omit 

unnecessary words. Current Rule 5(e): The filing of papers with the court as 

required by these rules shall be made by (i.e., A paper is filed by). Current 

Rule 6(b): When by these rules or by a notice given thereunder or by order of 

court an act is required or allowed to be done (i.e., When an act may or must 

be done). Current Rule 26(b)(3) (after a sentence about a party’s showing a 

need for materials): In ordering discovery of such materials when the required 

showing has been made. Current Rule 30(b)(1): shall give . . . notice . . . to 

every other party to the action. Current Rule 36(b): Any admission made by a 

party under this rule. Current Rule 56(a): A party . . . may . . . move . . . for a 

summary judgment in the party’s favor. 

• Avoid legalese. No pursuant to. No provided that. No such when it means 

“a” or “the.” No hereof or therefor or wherein. Consider this specimen, from 

current Rule 56(e): “Sworn or certified copies of all papers or parts thereof 

referred to in an affidavit shall be attached thereto or served therewith.” 

 

• Banish shall. The restyled civil rules, like the restyled appellate and criminal 

rules, use must instead of shall. Shall is notorious for its misuse and 

slipperiness in legal documents. No surprise, then, that the Committee 

changed shall to may in several instances, to should in several other instances, 

and to the simple present tense when the rule involves no obligation or 

permission (There is one form of action; this order controls the course of the 

action). 

The Limits of Change 

Renumbering 

 The Committee did not change any rule numbers, even though some of the rules 

(4, 23, 26, 71.1) are probably too long and others might benefit from repositioning. This 

also means that the Committee did not convert any of the interposed rules (4.1, 7.1, 23.1, 

23.2, 44.1, 65.1, and 71.1) to different numbers. Nor did it restore to active service the 

numbers of previously abrogated Rules 74, 75, and 76. At the rule level, the only change 

was from 71A to 71.1. 

 Any reordering was done at the subdivision level — (a), (b), (c) — or lower. (The 

comparison chart in Appendix B shows changes in subdivisions.) Even then, the 

Committee changed only when it was satisfied that the improved sequencing outweighed 

the possible short-term inconvenience. Throughout this project, the Committee had to 

balance two competing interests. On the one hand, the current designations are familiar, 
xix 

and changing them will occasionally require users to make adjustments. On the other 

hand, this chance to set the rules in order — or better order — may not come along for 

another 70 years, and we should take the long view. 

 Consider just the first few changes on the comparison chart. Current Rule 5(e) is 

merged into restyled 5(d) because both subdivisions deal with filing. Current Rules 6(d) 

and (e) move up because current 6(c) is empty. Current Rule 8(d) moves to restyled 

8(b)(6) because it fits more logically with other materials on denials; and the change is 

ameliorated because the rule keeps its heading even at the paragraph level, (b)(6). The 

last sentences of current Rules 12(b) and (c) — two long sentences — are merged into 

restyled 12(d) because they are almost identical; and this change, too, is ameliorated by 

moving current 12(d) to a new 12(i). On the whole, the Committee tried to make a 

modest number of sensible changes in the subparts only. 

Dealing With Uncertainty

 As already suggested, the Committee had to repeatedly deal with ambiguities, 

inconsistencies, gaps, and other uncertainties in the current rules. Start with Rule 1 again 

— just two sentences. Should it be These rules govern the procedure in all civil actions

or in all civil actions and proceedings? Should we change inexpensive to economical? 

Then Rule 2. One expert thought we should get rid of it entirely. Nothing in Rule 3. 

Rule 4(a). Would it be substantive to change a failure to appear and defend to a failure 

to defend? Is there a difference between a failure to appear and failing to appear? And 

so on. 

 Almost always, the Committee was able to answer these questions and clarify the 

rule or tighten the language. Occasionally, though, an ambiguity was so intractable that 

the Committee was not comfortable with changing the language. One memorable 

example: the two similar uses of heretofore in current Rule 59(a). The uses refer to the 

reasons for which new trials or rehearings have heretofore been granted in federal courts. 

This is classically bad drafting. Up until when? When the rule was first drafted? When 

the rule is applied? After research and extended discussion, the Committee decided that 

it could not be sure, so that ambiguity — and one piece of legalese — had to be carried 

forward. 

Sacred Phrases

 

 This was the Committee’s name for phrases that have become so familiar as to be 

unalterably fixed in cement. They are not exactly terms of art like hearsay and bailment. 

Terms of art typically are confined to a given field, consist in one or two words that are 
xx 

difficult to replace with one or two other words, and convey a fairly precise and settled 

meaning. So-called sacred phrases do not meet these criteria. 

 At any rate, some of the examples below could have easily been improved without 

changing the meaning; in others, style improvements risked substantive change. But 

none were touched. 

 

• Restyled Rule 8(b)(5): knowledge or information sufficient to form a belief. 

• Restyled Rule 12(b)(6): failure to state a claim upon which relief can be 

granted. 

• Rule 13(a)(1)(A): arises out of the transaction or occurrence that is the 

subject matter of the opposing party’s claim.

• Restyled Rule 19(b): in equity and good conscience. 

• Restyled Rule 44(b): no record or entry of a specified tenor. 

 

• Restyled Rule 56(c): there is no genuine issue as to any material fact. 

 

 So that’s how the Committee went about restyling the civil rules. The Committee 

realizes that its work is not done — but it trusts that readers will see the value of all that 

has been done.