New Federal Rules Modernize Appellate Practice

• Author: Erik A. Christiansen
• Pages: 21-21

AMERICA N BAR ASSOCIATION SPRING 20 20 • VOL. 45 NO. 3 | 21

Published in Litigation News Volume 45, Number 3, Spring 20 20. © 2020 by the Ameri can Bar Association. Re produced with per mission. All rights re served. This info rmation or any porti on thereof may not be c opied or disseminated in any

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he U.S. Supreme Cou rt has adopted amendments

that broaden the residual exc eption to the hearsay

rule, embrace elec tronic ling under the federa l appellate

rules, and as sist judges with recusal questions o n appeal.

The new rules took e ffect on December 1, 2019. Section

leaders believe the a mendments will moderniz e appellate practice

by embracing e-l ing and also will give tria l courts greater dis-

cretion to admit hea rsay statements.

The new amendme nts to the residual exception to the

hearsay rule in Fe deral Rule of Evidence 807 shrink the r ule’s

requirements. T he old rule made otherwise inadm issible hear-

say statements admi ssible only when the out-of-court declara-

tion was trust worthy, material, and in the interests of just ice.

The new amendme nt eliminates the requirement th at the evi-

dence must be materia l and the requirement that the proffered

evidence must serve t he interests of justice.

To fall within the new Rul e 807 residual hearsay excep-

tion, the out-of-cou rt statement must be trustwor thy and be

more probative than other rea sonably available evidence. It

also expands th e procedure for admission of such evidence by

permitti ng the trial court to admit hea rsay “during the tr ial or

hearing if th e court, for good cause, excuses a lack of e arlier

notice.” That is a signi cant change from the previous rule ,

which required notic e prior to the trial or hearing of the i ntent

to use the statement.

“The new changes to Ru le 807 are expansive and will

lead to the admission of more he arsay evidence,” explains

John S. Austin , Raleigh, NC, vice- chair of the ABA Section

of Litigation’s Trial Practice Com mittee. “More importantly,

the new Rule 807 allows c ourts to admit such evidence duri ng

trial for good cause , in comparison to the old Rule 807 which

allowed admission on ly when notice of an intent to use was

made before trial ,” Austin expounds .

Another Sec tion of Litigation leader anticipates less cha nge

but admits tria l judges can exercis e more discretion. “While

the new Rule 807 mig ht not signicantly change the way the

rule is applied, the n ew rule cleans up the text and places a

greater emphasis on the t rial judge as the gatekeeper,” says

Steven Finell, Sa nta Rosa, CA, cochair of the App ellate Rules

Subcommitte e of the Section’s Appellate Practice Com mittee.

The amendment s to the Federal Rules of Appellate Procedu re

clarify is sues of electronic ling and ser vice for appeals. The

amendment to Rule 3 cha nges the manner in which the clerk

must “serve notice of the  ling of a notice of appeal” from the

clerk “mailing” the not ice to the clerk “sending” the notice,

with certa in specied exceptions. In mo st cases this change per-

mits electron ic service by the clerk. The amendm ent to Rule 5

now permits elect ronic service, and it elimi nates the old require-

ment that a petition mus t be led “with proof of service on all

other partie s to the district-court ac tion.” Similarly, the amend-

ments to Rule 25 elim inate the need to le a proof of service i f a

paper is led “throug h the court’s electronic-l ing system.” The

amendments to Rule 2 6 now permit adding three days to a time

computation only when “the paper is not s erved electronically.”

Section leaders su ggest that these changes confor m the rules

to current practic e. “Electronic ling is th e norm,” says Finell.

“These rule ch anges simply recognize the u niversal nature of

those changes , including that e-ling is a b etter proof of ser-

vice than l ing a physical certicate of ser vice,” Finell adds.

New Rule 26.1 of the Appellat e Rules of Procedure man-

dates additiona l disclosures about nongovernm ental cor-

porations seeking to i ntervene on appeal, identication of

organization al victims in crimi nal cases, and disclosure of a ll

debtors in bankr uptcy matters. Nongovernmental cor pora-

tions must le a dis closure statement pursuant to Rule 26.1(a)

that identies a ny parent corporation and any publicly held

corporation that owns 10 perc ent or more of its stock. The

same requirement applie s to a nongovernmental corporation

that seeks to inter vene.

In a crimi nal case, new Rule 26.1(b) requires identicat ion

of any organizat ional victim of alleged crim inal activity. If the

organization al victim is a corporation, the st atement must dis-

close the parent corpo ration and any publicly held corporation

owning more tha n 10 percent of its stock. I n a bankruptcy

matter, new Rule 26.1(c) requires identi cation of each debtor

not named in the capt ion, and each debtor that is a corpora-

tion must disclose t he parent corporation and any publicly

held corporation ownin g more than 10 percent of its stock.

The increased d isclosure obligations will assi st judges in vet-

ting potential conicts.

Experts su ggest that these changes bet ter reect modern

practice. “In shor t, with these technica l rule changes, the fed-

eral appeals cour ts are now simply catching up with the twen-

tieth centu ry,” says Austin. Finell ag rees. “In summary, the

changes, while not earth-shattering, clarify the electronic rules

to conform with sta ndard practice and tighten up the di scre-

tion of judges to admit hear say statements under the residual

exception,” concludes Finell.

Digital versio ns of both Civil Procedur e stories, including li nks to

resources an d authorities, are availab le at http://bit.ly/LN-civp ro.

New Federal Rules Modernize

Appellate Practice

By Erik A. Christia nsen, Litigation N ews Associate Editor