COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

OF THE

JUDICIAL CONFERENCE OF THE UNITED STATES

WASHINGTON, D.C. 20544

LEE H. ROSENTHAL

CHAIR

PETER G. McCABE

SECRETARY

CHAIRS OF ADVISORY COMMITTEES

JEFFREY S. SUTTON

APPELLATE RULES

LAURA TAYLOR SWAIN

BANKRUPTCY RULES

MARK R. KRAVITZ

CIVIL RULES

RICHARD C. TALLMAN

CRIMINAL RULES

ROBERT L. HINKLE

EVIDENCE RULES

MEMORANDUM

TO: Honorable Lee H. Rosenthal, Chair

Standing Committee on Rules of Practice and Procedure

FROM: Judge Robert L. Hinkle, Chair

Advisory Committee on Evidence Rules

RE: Report of the Advisory Committee on Evidence Rules

DATE: May 10, 2010 

Introduction

The Advisory Committee on Evidence Rules met on April 22-23 at Fordham Law School

in New York. The meeting produced one action item for the Standing Committee to consider at the

June 2010 meeting.

As the Standing Committee knows, the Advisory Committee has been restyling the Evidence

Rules. At the June 2009 meeting, the Standing Committee approved publishing the entire set of

restyled rules for public comment. The Advisory Committee and the Standing Committee’s Style

Subcommittee have considered the public comments in detail. Most were favorable, and some

resulted in changes that have improved the product. The Advisory Committee now asks the

Standing Committee to approve the entire set of restyled rules for submission to the Judicial

Conference. The Style Subcommittee has approved the rules.
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Evidence Rules Advisory Committee

Appendix A sets out the restyled rules as proposed for submission to the Judicial Conference,

side by side with the existing rules. 

* * * * *

Action Item — Restyled Evidence Rules 101–1103

Background: the History of Restyling the Rules. Beginning in the early 1990s, Judge

Robert Keeton, who was chair of the Standing Committee, and a committee member, University of

Texas Professor Charles Alan Wright, led an effort to adopt clear and consistent style conventions

for all of the rules. Without consistent style conventions, there were differences from one set of

rules to another, and even from one rule to another within the same set. Style varied because a

committee seeking to amend a rule did not always consider how another rule expressed the same

concept. Style varied based on the membership of a particular advisory committee. Style varied as

the membership of a particular advisory committee changed over time. And style varied as the

membership of the Standing Committee changed over time. Different rules expressed the same

thought in different ways, leading to a risk that they would be interpreted differently. Different rules

sometimes used the same word or phrase to mean different things, again leading to a risk of

misinterpretation. And in other respects, too, rules drafters who were experts in the relevant

substantive and procedural areas sometimes did not express themselves as clearly as they might

have. 

Judge Keeton appointed Professor Wright to chair a newly formed Style Subcommittee of

the Standing Committee. At Professor Wright’s suggestion, the Standing Committee retained a

legal-writing authority, Bryan Garner, as its style consultant. Mr. Garner is the author of such books

as The Elements of Legal Style and A Dictionary of Modern Legal Usage. These are generally

regarded as the leading authorities on these subjects. Mr. Garner also is the current editor of Black’s

Law Dictionary and the co-author, with Justice Scalia, of Making Your Case: The Art of Persuading

Judges. 

In conjunction with his work for the Standing Committee, Mr. Garner wrote Guidelines for

Drafting and Editing Court Rules. First published in 1996, the Guidelines manual is now in its fifth

printing. It has guided all rules amendments since it was written—whether or not they related to a

restyling project. And the Guidelines manual has guided successful restylings of the Federal Rules

of Appellate, Criminal, and Civil Rules, which took effect in 1998, 2002, and 2007. For matters not

addressed in the Guidelines, the restylings have followed Garner’s A Dictionary of Modern Legal

Usage. Professor Daniel R. Coquillette has been the Standing Committee’s reporter through all of

these projects.

Mr. Garner was himself the style consultant for the restyled Appellate and Criminal Rules.

Professor Joseph Kimble took over near the end of the Criminal Rules restyling project and was the

style consultant as the Civil Rules project went forward. Professor Kimble is the editor in chief of

The Scribes Journal of Legal Writing and the author of Lifting the Fog of Legalese, a book that
Report to Standing Committee Page 3

Evidence Rules Advisory Committee

compiles some of his many essays. He and Mr. Garner are co-authors of a forthcoming book, The

Elements of Legal Drafting, which West Publishing Company will publish. Professor Kimble has

taught legal writing at Thomas Cooley Law School for 26 years.

Despite some initial opposition, each of the restyling projects has proved enormously

successful. Indeed, in recognition of their work in restyling the Civil Rules, Professor Kimble, the

Standing Committee, and the Civil Rules Advisory Committee each received a Burton Award for

Reform in Law. The Burton is probably the nation’s most prestigious legal-writing award. Judge

Rosenthal, Judge Thrash (of the Style Subcommittee), and Professor Kimble accepted the awards

at a black-tie dinner at the Library of Congress on June 4, 2007.

The Division of Responsibility: Substance or Style. The division of responsibility on the

restyling projects has conformed generally to the protocol the Standing Committee has adopted for

addressing style issues for a proposed amendment to a rule outside the restyling process. For an

amendment outside a restyling project, the relevant Advisory Committee must submit its proposed

language to the Style Subcommittee. On style issues, the Style Subcommittee, not the Advisory

Committee, has the last word. Thus when an Advisory Committee submits a proposed amendment

to any rule to the full Standing Committee, the amendment already has gone through a style review,

and style issues have been determined by the Style Subcommittee. The Standing Committee chairs

have kept the Style Subcommittee small in order to promote consistency. Although the Standing

Committee retains the ultimate authority, through the years it has followed the style decisions of the

Style Subcommittee, thus ensuring a high level of consistency across all sets of rules.

Preparing the Restyled Evidence Rules as Issued for Public Comment. With this

background, the Advisory Committee on Evidence Rules undertook its restyling project beginning

in the Fall of 2007. The Committee established a step-by-step process for restyling that was

substantially the same as that employed in the earlier restyling projects. Those steps were: 1) draft

by Professor Kimble; 2) comments by the Reporter, Professor Daniel J. Capra; 3) response by

Professor Kimble and changes to the draft where necessary; 4) expedited review by Advisory

Committee members and redraft by Professor Kimble if necessary; 5) review by the Style

Subcommittee of the Standing Committee; 6) review by the Advisory Committee; and 7) review

by the Standing Committee to determine whether to release the restyled rules for public comment.

The Advisory Committee divided the Evidence Rules into three parts. The process described

above thus was conducted in three stages. The Committee also agreed that the entire package of

restyled rules should be submitted for public comment at one time.

The Advisory Committee established a working principle for whether a proposed change is

one of “style” (in which event the decision is made by the Style Subcommittee) or one of

“substance” (in which event the decision is for the Advisory Committee). A proposed change is

“substantive” if:

1. Under the existing practice in any circuit, it could lead to a different result on a

question of admissibility; or
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Evidence Rules Advisory Committee

2. Under the existing practice in any circuit, it could lead to a change in the procedure

by which an admissibility decision is made; or 

3. It changes the structure of a rule or method of analysis in a manner that

fundamentally changes how courts and litigants have thought about, or argued about, the

rule; or

4. It changes what Professor Kimble has referred to as a “sacred phrase”—“phrases

that have become so familiar as to be fixed in cement.”

At its Spring 2008 meeting the Advisory Committee approved the restyling of the first third

of the rules (Rules 101–415). The Standing Committee, at its June 2008 meeting, approved these

rules for release for public comment, with the understanding that there could be further changes and

that publication would occur after the Standing Committee approved all of the rules. 

At its Fall 2008 meeting, the Advisory Committee approved the restyling of the second third

of the rules (Rules 501–706). The Standing Committee, at its January 2009 meeting, approved

these rules for release for public comment, again with the understanding that there could be further

changes and that publication would occur after the Standing Committee approved all of the rules.

At its Spring 2009 meeting, the Advisory Committee approved the restyling of the final third

of the rules (Rules 801–1103). The Standing Committee, at its June 2009 meeting, approved these

rules and the entire set for release for public comment. 

The Public Comments. We received 19 public comments, some brief, some running to many

pages. In general, they were strongly favorable, with a number of helpful specific suggestions. The

Committee on the Federal Rules of Evidence of the American College of Trial Lawyers said:

Our Committee members commented, time and again, on the excellent work of the

restyling sub-committee.

Comment 09-EV-002, second page. 

The American Bar Association Section of Litigation said:

We commend the Advisory Committee on their excellent and careful work. The

overwhelming majority of the proposed changes will lead to clearer rules that will

be of great benefit to the practicing bar and the public.

Comment 09-EV-014, at 1. 

A law professor said:
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Evidence Rules Advisory Committee

I’d like to start by congratulating the Committee on its work. The restyling

will make it easier for students to learn the Federal Rules of Evidence. I wish the

rules had been written that way in the first place.

Letter from Roger C. Park, Comment 09-EV-012, at 1. Several other professors made similar

comments. 

There was a single dissent: the Federal Magistrate Judges Association said it “doubts the

value of restyling the Federal Rules of Evidence.” Comment 09-EV-011 at 7. The earlier restyling

projects drew much more extensive opposition, but even some of the opponents later came to

recognize that the restyled rules were better. That restyling the evidence rules drew only a single

negative comment is perhaps a testament to the success of the earlier restyling projects. 

Considering the Public Comments. The Evidence Reporter (Professor Capra) and the Style

Consultant (Professor Kimble) considered the public comments in detail. They also reviewed all

of the rules yet again. They provided their input to the Style Subcommittee (consisting of three

Standing Committee members: Judge James A. Teilborg, Judge Marilyn L. Huff, and William J.

Maledon). The Style Subcommittee considered the public comments and the input during

conference calls that consumed many hours spread over many days. They did this in time for their

decisions to be reported to the Advisory Committee in advance of the April 2010 meeting. The

Style Subcommittee’s prompt work was of enormous assistance to the Advisory Committee.

The Reporter prepared a memorandum to the Advisory Committee that analyzed in detail

the public comments, the Style Subcommittee’s decisions, and every issue that had been raised by

anyone. At the April 2010 meeting, the Advisory Committee considered the public comments and

addressed every issue. The draft minutes—which summarize but are by no means a transcript of the

two-day meeting—run to 127 pages and are attached to this report. I have not attempted to

summarize in this report the extensive discussions and many decisions recounted in the minutes. 

The Advisory Committee approved the entire set of restyled rules, thus indicating its belief

that the restyled rules are substantively identical to the existing rules. The conclusion is underscored

by the committee note to each restyled rule. The note to Rule 101 explains the restyling project.

The note for each other rule reiterates that the changes have been made as part of the restyling

project, that the changes are stylistic only, and that there is no intent to change any ruling on

evidence admissibility. In a few instances, a note includes a further explanation of a specific

drafting decision. The notes follow the pattern of earlier restyling projects. 

The Advisory Committee also made several recommendations to the Style Subcommittee

for changes on matters of style. On those matters, the final decision of course rests with the Style

Subcommittee, not with the Advisory Committee. The Style Subcommittee took up the

recommendations at an additional conference call. The Style Subcommittee acted on the

suggestions and gave its final approval to the entire set of restyled rules. For ease of reference, the

Style Subcommittee’s decisions have been noted in the minutes of the Advisory Committee meeting,

even though they of course came after that meeting.
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Evidence Rules Advisory Committee

In sum, the rules and the committee notes come to the Standing Committee with the approval

of the Advisory Committee (on matters of substance) and the Style Subcommittee (on matters of

style). The degree of cooperation among the Reporter, the Style Consultant, the Advisory

Committee, and the Style Subcommittee has been extraordinary.

Recommendation: The Advisory Committee on Evidence Rules recommends that the

Standing Committee approve the proposed restyled Evidence Rules 101–1103 and the

proposed Committee Notes for submission to the Judicial Conference.