Counting the days gone by: a eulogy for former Rule 6(a) (2).

• Author: Rosman, Michael E.

On December 1, 2009, Rule 6(a)(2) of the Federal Rules of Civil Procedure--and similar rules in other sets of Federal Rules--were substantially amended. Prior to that time, these rules provided that when counting short periods of time (less than eleven days), one did not count weekends or holidays. Now, these rules follow a "days-are-days" approach in which all days count for purposes of counting time periods, regardless of how short.

This brief Aside takes a wry look at the change and its authors (the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States). It points out that the old Rule provided excellent opportunities for clever lawyering and suggests that the authors' purported rationale for the Rule--that counting days in whole numbers, while skipping weekends and holidays, was too complicated for the average practitioner--is a bit condescending and probably untrue. In a light-hearted vein, it discusses some of the old rules' conundrums and how they were resolved.

INTRODUCTION I. A BRIEF OVERVIEW II. FUN WITH OLD RULE 6(A) (2) A. Rule 6(a)(2) and the Three Days of Mystery B. Is Three Less than Eleven? C. Backwards Counting: Offer and Acceptance with Rule 6(a)(2) III. FAREWELL RULE 6(A) (2)--WE HARDLY KNEW YE INTRODUCTION

On December 1, 2009, Rule 6(a) of the Federal Rules of Civil Procedure (FRCP) changed dramatically. Specifically, Rule 6(a)(2)--which provided that in computing periods of time that were less than eleven days, one should exclude intermediate Saturdays, Sundays, and legal holidays--was repealed. (1) In its stead is a new Rule 6(a)(1), under which all days are counted for any time period, regardless of length. (2)

In this Aside, I express my fondness for old Rule 6(a) (2) and bid it a fond farewell. Former Rule 6(a) (2) was responsible for the intriguing conundrums and clever arguments that made me proud to be a lawyer. New Rule 6(a) is a drab, ordinary provision that lacks the same potential for excitement. Moreover, the replacement of old Rule 6(a) with new Rule 6(a) is the product of a group of people who thought that counting what the rest of society might call "business days" was too complicated a task for lawyers. (3) While it was indeed too complicated for them, I submit that attorneys of normal intelligence were having no problem at all. Indeed, they were having fun.

1. A BRIEF OVERVIEW

   Former Rule 6(a)(2) stated that, in computing any time period, one should "[e]xclude intermediate Saturdays, Sundays, and legal holidays when the period is less than 11 days." (4) In contrast, new Rule 6(a)(1)(B) states that, when a period is stated in days, one should "count every day, including intermediate Saturdays, Sundays, and legal holidays." (5)

   The Committee has stated that the new Rule was part of a "time-computation project" in which a "days-are-days" approach was adopted in all the Rules over which the Committee exercised jurisdiction. (6) Thus, for example, a similar change was made to Rule 26 of the Federal Rules of Appellate Procedure. (7)

   I began to question the brilliance of those in charge of the Federal Rules back in 1991 when they changed the time period associated with responding to a subpoena duces tecum from ten days to fourteen days. (8) In explaining this revision, the Advisory Committee Notes stated that "[t]he 10-day period for response to a subpoena is extended to 14 days to avoid the complex calculations associated with short time periods under Rule 6 and to allow a bit more time for such objections to be made." (9)

   Was I the only person left bewildered by this explanation? "Complex calculations?" Counting to ten, while skipping weekends and holidays? And yet, to demonstrate the complexity of it all, the Committee told us that the change from ten to fourteen will allow "a bit more time." A bit? Were the days to be measured in drill sizes?

   And, of course, as any third grader who can both count and skip could have explained, the Committee was simply wrong. Under former Rule 6(a)(2), a ten-day period was counted excluding weekends and holidays; a fourteen-day period was (and is) counted including weekends and holidays. Since any given fourteen-day period includes four weekend days, under the former Rule, fourteen days would almost never be "a bit more"--not even a teeny, tiny bit more--than ten days excluding weekends. (The rare exception would be for documents served on a weekend, a maneuver that should really be illegal altogether.) And, of course, in some instances, if one or more holidays fell within a fourteen-day period, such a fourteen-day period would in fact be fewer calendar days than the old ten-day period.

   The 2009 Advisory Committee Note to the proposed change to Rule 6(a)--while still maintaining that old Rule 6(a) "made computing deadlines unnecessarily complicated"--did note that "a 10-day period and a 14-day period that started on the same day usually ended on the same day--and the 10-day period not infrequently ended later than the 14-day period." (10) Thus, to its credit, I suppose, the Committee finally figured out how Rule 6(a) (2) worked---albeit eighteen years later, and only in the context of explaining how difficult all of these complex calculations made the practice of law.

2. FUN WITH OLD RULE 6(A) (2)

   Old Rule 6(a) (2) had plenty of interesting applications, some better known than others. Here are a few of my favorites.

   1. Rule 6(a)(2) and the Three Days of Mystery

      For a long time, one question the Rules themselves left unclear was how to combine Rule 6(a)(2) and Rule 6(e). (11) Just prior to its amendment in 2005, Rule 6(e) provided:

      Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party under Rule 5(b) (2) (B), (C), or (D), 3 days shall be added to the prescribed period. (12) Although the types of service that triggered the three-day extension varied from time to time, service by mail was always one of them.

      If the "prescribed period" were ten days, and three days were added pursuant to Rule 6(e), did that addition take the period outside of the purview of Rule 6(a) (2)? Was it two separate periods (one of ten-day length, the other of three), or one period of thirteen days?

      Of course, if it were the latter, that result would create an obvious anomaly. The deadline for a paper served by mail would be earlier than the deadline for a paper served by hand: ten days from the day the paper was served, but excluding weekends and holidays. Indeed, since a paper served by mail (i.e., "snail mail") is deemed "served" upon mailing under Federal Rule of Civil Procedure 5(b) (2) (C), the recipient would have considerably less time to prepare and serve the required response. (13) A...