52 Plain Language

Michigan Bar Journal August 2009

By Joseph Kimble

A Drafting Example from the Proposed 

New Federal Rules of Evidence

here’s a new milestone on the long road to better 

legal writing. On June 1, the Standing Committee 

on Rules of Practice and Procedure approved for 

publication the “restyled” Federal Rules of Evidence. 

As drafting consultant, I began redrafting the rules in mid-2006, 

and in April the Advisory Committee on Evidence Rules approved the last set for transmittal to the Standing Committee. In 

August, the rules will be published in print and online at www.

uscourts.gov/rules.

The goal has been to make the rules clearer, more consistent, 

and more readable—all without changing their meaning. No small 

assignment, and as you can imagine, the Advisory Committee 

scrutinized every word, looking for possible substantive change. 

The careful, systematic, three-year process is summarized by 

Judge Robert Hinkle, Chair of the Advisory Committee, in a report 

that’s available at www.uscourts.gov/rules/Agenda%20Books/

Standing/ST2009-06.pdf, pages 480–84.

Of course, the work is not done. No doubt the public comments will produce any number of changes. And the final version 

must then be approved by the Standing Committee (again), the 

Judicial Conference of the United States, the Supreme Court, and 

Congress. The track record, though, is good: this is the fourth set 

of federal rules to be restyled. The Rules of Appellate Procedure 

took effect in 1998, the Rules of Criminal Procedure in 2002, and 

the Rules of Civil Procedure in 2007.

During the comment period for the civil rules, I wrote two 

Plain Language columns (December 2004 and January 2005) showing side-by-side examples of several old and new rules. This time, 

I’ll do something a little different. I’ll look in detail at one rule and 

T

try to describe some of its drafting deficiencies. Then I’ll offer the 

proposed new rule and, as I did with the two earlier columns, ask 

you to be the judge.

Nobody would claim that the restyled rules are perfect; on a 

project like this, you can always find pieces that could have been—

and perhaps still will be—improved. Naturally, though, I do think 

that the new rules are far better. But see what you think. And 

then try your hand at the contest that follows.

Current Rule 609(a)–(b)

Impeachment by Evidence of Conviction of Crime

(a) General Rule. For the purpose of 1 attacking the 

character for truthfulness of a witness,2

(1)3 evidence that a witness other than an accused 

has been convicted of a crime shall4

 be admitted, subject to Rule 403, if the crime was punishable by death 

or imprisonment in excess of 5

 one year 6 under the law 

under which the witness was convicted,7

 and evidence 

that an accused has been convicted of such8

 a crime9

shall be admitted if the court determines that10 the probative value of admitting this evidence outweighs its 

prejudicial effect to the accused;11 and

(2) evidence that any witness has been convicted 

of a crime shall be admitted regardless of the punishment, if it readily12 can be determined that13 establishing the elements of the crime required proof or admission14 of an act of dishonesty15 or false statement by 

the witness.16

(b) Time Limit.17 Evidence of a conviction under this 

rule18 is not admissible if a period of19 more than20 ten 

years has elapsed since the date of 21 the conviction or of 

the release of the witness22 from the confinement imposed 

for that conviction,23 whichever is the later date, unless24

the court determines, in the interests of justice, that25 the 

probative value of the conviction supported by specific 

facts and circumstances substantially outweighs its prejudicial effect.26 However,27 evidence of a conviction more 

than 1028 years old as calculated herein,29 is not admissible 

unless30 the proponent gives to the adverse party sufficient advance31 written notice of intent to use such evidence32 to provide the adverse party with a fair opportunity to contest the use of such evidence.33

‘‘Plain Language’’ is a regular feature of the Michigan Bar Journal, edited by Joseph Kimble for the Plain English Subcommittee of the Publications and Website Advisory Committee. Contact 

Prof. Kimble at kimblej@cooley.edu. For a list of previous articles, 

go to www.michbar.org/generalinfo/plainenglish/columns.cfm. 

2009 is a notable year for the column.

of the column

Anniversary

25th
Plain Language 53

August 2009 Michigan Bar Journal

Drafting Deficiencies

1. For the purpose of is a multiword preposition. Make it To attack.

2. An unnecessary prepositional phrase. Make it a witness’s character.

3. Two structural points. (1) Without digging, it’s hard to tell what the 

point of distinction is between this first paragraph and the second 

one; the restyled rule makes that clear at the beginning of each paragraph. (2) This dense first paragraph contains two possibilities that 

should be broken down.

4. Shall has become inherently ambiguous (among other disadvantages). The restyled rules use must for required actions.

5. A stuffy way of saying for more than.

6. Note the miscue: in excess of one year modifies imprisonment but not 

death. To avoid the miscue, insert by before imprisonment.

7. Arguably, it’s obvious what law we’re talking about. But the restyled rule 

at least shortens this clumsy phrasing to in the convicting jurisdiction.

8. A lot hangs on the word such. It avoids repetition, but it would be 

easy to blow past.

9. Note the repetition of evidence that... has been convicted of ... a crime

from the first part of this paragraph.

10. There’s no such the court determines that in, for instance, Rule 403. 

The restyled rule omits it.

11. An unnecessary prepositional phrase. Of course we’re talking about 

the effect on the accused. Strike to the accused.

12. The adverb should normally split the verb phrase. Whether to put it 

after the first or second of two auxiliary verbs can be tricky, but I’d 

say readily belongs after be.

13. Here, the can be determined that language needs to stay in order to 

keep the idea of “readily.” But why is it passive?

14. Prefer the -ing forms—proving and admitting—to the nouns with of.

15. Another unnecessary prepositional phrase. Make it a dishonest act.

16. The language beginning with proof is a syntactic muddle. We’re talking about the witness’s admitting something, but not the witness’s 

proving something.

17. Not an informative heading. The restyled heading makes it immediately clear when this part applies.

18. Of course we’re talking about a conviction under this rule. Strike

under this rule.

19. Strike a period of.

20. Note the inconsistency with in excess of in (a)(1).

21. Strike the date of.

22. Make it the witness’s conviction or release.

23. To this point, the sentence uses nine prepositional phrases. The restyled rule uses three.

24. Note the double negative: is not admissible... unless. Make it is admissible only if.

25. Again, strike the court determines ... that, along with in the interests of 

justice. The latter is a needless intensifier anyway.

26. This is a 72-word sentence.

27. Start sentences with But, not However. What’s more, this sentence 

actually contains a second condition to using the evidence. The rule 

should be structured to show that the evidence is allowed only if two 

conditions are met.

28. The previous sentence spells out ten.

29. Strike as calculated herein. Also, the comma needs a paired comma 

after old.

30. Another double negative.

31. Isn’t notice always in advance? At any rate, here it certainly has to be.

32. Try a pronoun—it—instead of such evidence.

33. Try another pronoun—its—as in its use.

Joseph Kimble has taught legal writing for 25 years at Thomas M. Cooley Law 

School. He is the author of Lifting the Fog of Legalese: Essays on Plain Language, the editor in chief of The Scribes Journal of Legal Writing, the past 

president of the international organization Clarity, a founding director of the 

Center for Plain Language, and the drafting consultant on all federal court 

rules. He led the work of redrafting the Federal Rules of Civil Procedure and the 

Federal Rules of Evidence.

The Contest Returns!

You’ve probably missed the contest, which hasn’t appeared for a 

while. Time to revive it. I’ll send a copy of Lifting the Fog of Legalese: 

Essays on Plain Language to the first person who sends me (kimblej@

cooley.edu) an “A” revision of the two sentences below. The deadline 

is August 20, and I have to be the sole judge of the winner. No fair 

peeking at the restyled rule online.

The revision should be fairly easy: the sentences are not long, the 

meaning is clear, the syntax isn’t tangled, there’s no need to restructure, and there’s not much legalese. The main vices are wordiness 

(note the eight prepositional phrases) and an unnecessary passive 

construction. So here it is—current Rule 606(a):

A member of the jury may not testify as a witness before that 

jury in the trial of the case in which the juror is sitting. If the 

juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.

Now for the proposed new rule. Most of the changes are explained by my comments on the current rule. I’ll just make three 

salient points. First, the current rule contains 262 words; the new 

one contains 204, or 22 percent fewer. Second, the new rule is 

structured in a way that reflects the content much more clearly. 

Third, the new rule improves the formatting with progressive indents for the subparts and hanging indents (aligned on the left) 

within each subpart.

Restyled Rule 609(a)–(b)

Impeachment by Evidence of a Criminal Conviction

(a) In General. The following rules apply to attacking

a witness’s character for truthfulness by evidence of a 

criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was 

punishable by death or by imprisonment for more 

than one year, the evidence:

 (A) must be admitted, subject to Rule 403, if the witness is not a defendant in a criminal case; and

 (B) must be admitted if the witness is a defendant in a criminal case and the probative 

value of the evidence outweighs its prejudicial effect; and

(2) for any crime regardless of the punishment, the 

evidence must be admitted if the court can readily determine that establishing the elements of 

the crime required proving—or the witness’s admitting—a dishonest act or false statement.

(b) Limit on Using the Evidence After 10 Years. This 

subdivision (b) applies if more than 10 years have 

passed since the witness’s conviction or release from 

confinement for the conviction, whichever is later. 

Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and 

circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable 

written notice of the intent to use it so that the 

party has a fair opportunity to contest its use.