The Fork in the Road a Practitioner's Guide to the 1997 Changes in the Code of Civil Procedure
| Jurisdiction | Kansas,United States |
| Citation | Vol. 66 No. 06 Pg. 32 |
| Pages | 32 |
| Publication year | 1997 |
66 J. Kan. Bar Assn. June/July, 32 (1997). THE FORK IN THE ROAD A PRACTITIONER'S GUIDE TO THE 1997 CHANGES IN THE CODE OF CIVIL PROCEDURE
June/July, 1997
Copyright (c) 1997 by the Kansas Bar Association; J. Nick Badgerow
I. Introduction and Overview
For many years, the Kansas Code of Civil Procedure has mirrored, to a large extent, the Federal Rules of Civil Procedure. In the 1997 session of the Kansas Legislature, a bill - known as House Bill 2007- passed and became law, effective July 1, 1997. With the passage of H.B. 2007, there will be a wider divergence in the practice and procedure between the state and federal courts in Kansas, and the practitioner will be well advised to become familiar with both. The purpose of this article is to provide a historical background leading to the passage of H.B. 2007, to outline the significant changes occasioned by the new law, [FN1] and to provide a comparison between the new procedures in the state courts and the procedures in the federal courts [FN2] since the Federal Rules amendments became effective Dec. 1, 1993. [FN3] It is not the purpose of this article to list each change in detail, and, of course, the careful practitioner will want to review the specific changes published in the Session Laws and then as published in the statute book.
*33 II. Historical Perspective - A Long and Winding Road
Federal Rules and the State. As noted above, it has been the common practice in Kansas for the rules of civil procedure, appearing generally at subchapter 2 of Chapter 60 of the Kansas Statutes Annotated (K.S.A.), to follow the format and provisions of the Federal Rules of Civil Procedure. [FN4] This has provided several benefits for the courts and the attorneys appearing before them. First, for those practicing in both courts, the similarity of the state and federal rules (even to the extent of the same numbers for the same rules), has made it easier for counsel to be familiar with their provisions and to follow them. And, in the absence of any Kansas judicial authorities on a particular point or interpreting a particular rule, the Kansas courts have held that federal authorities interpreting the same rule are persuasive, [FN5] thus providing a wide body of law on which to draw.
However, Kansas has always been a Free State, and throughout the history of the State, Kansans have always been independent-minded. Thus, there has not been a slavish copying of the Federal Rules into the Kansas Code of Civil Procedure. [FN6] The departures from the Federal Rules have been marked by an understanding or intention that the particular Federal Rules in those instances do not have application to the courts, judges, lawyers or other citizens of this State. H.B. 2007 is another sign of that independence, and represents a fork in the road between the Federal Rules and the Kansas Civil Code.
This freedom comes at a small price: The lawyers practicing before the courts of the State will need to become familiar with provisions in the Kansas Code of Civil Procedure that do not find a parallel in the Federal Rules, and the courts may be called on to provide independent interpretations and applications of the rules without guidance from federal authorities. The alternative would have been to force adherence to rules that were designed by non-Kansans for application in a different court system, just in the name of uniformity.
The Kansas Judicial Council. The Kansas Judicial Council was created by the Kansas Legislature in 1927. Its authority is found at K.S.A. 20-2201, et seq., which directs the Council, inter alia, "to recommend methods of simplifying civil and criminal procedure, expediting the transaction of judicial business and eliminating unnecessary delays therein and correcting faults in the administration of justice." The Council is comprised of one justice from the Kansas Supreme Court and one judge from the Kansas Court of Appeals, the chairs of the House and Senate judiciary committees, four district court judges, and four practicing trial lawyers from around the State. [FN7]
The Kansas Judicial Council carries out its directive by working with the courts, to evaluate caseloads and to provide assistance in the administration of justice, in both the civil and criminal courts. Additionally, the Council receives and acts on questions, comments, and suggestions from the bench, bar and public at large. One task that the Council has recurrently taken up is the monitoring of the Code of Civil Procedure - suggesting changes to the Legislature when such changes are indicated. This has frequently included a review of changes in the Federal Rules of Civil Procedure, as they have come about, in an attempt to pattern the Kansas procedures after the Federal Rules, without detracting from the unique nature of the courts of this State.
III. The Judicial Council Takes Up the 1993 Federal Rules Amendments - An Uphill Road [FN8]
Amendments to the Federal Rules. Prior to the
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December 1993 amendments, the last significant amendments to the Federal Rules were made in 1986. Most of the 1986 changes were incorporated into the Kansas Code of Civil Procedure. On Dec. 1, 1993, the Federal Rules were substantially amended. Those amendments were met with vocal opposition and equally vocal support from the courts and the practicing Bar, as either the anathema or the savior of civil litigation as it was then known. Of course, in practice they have proved to be neither.
The 1993 amendments allowed each federal district to "opt out" - to choose not to accept the amendments. The District of Kansas has not chosen to opt out, and has applied most of the amendments since Jan. 28, 1994 - soon after their adoption in 1993.
Civil Code Committee - Kansas Judicial Council. Faced with these changes, the Kansas Judicial Council's Civil Code Committee took up the Federal Rules amendments to determine how much, if any, should be incorporated into the Kansas Code. [FN9] This Civil Code Committee was the best equipped and most objective group in the State for such a task. Chaired by Marvin Thompson of Russell during most of its activities, the Committee is comprised of a wide and diverse panel of practicing lawyers representing both the plaintiff and defense bars, as well as Prof. Robert Casad of the University of Kansas School of Law, a nationally recognized expert on civil procedure. [FN10]
Committee Study. The Civil...
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