The restyled Federal Rules of Evidence.

PositionSymposium - Discussion

OPENING REMARKS

DEAN DAVISON M. DOUGLAS--Dean and Arthur B. Hanson Professor of Law, William & Mary School of Law

HON. SIDNEY A. FITZWATER--Chief Judge, United States District Court, Northern District of Texas; Chair of the Advisory Committee on Evidence Rules

LOOKING BACKWARD

PROFESSOR DANIEL J. CAPRA--Reed Professor of Law, Fordham Law School; Reporter to the Advisory Committee on Evidence Rules

HON. ROBERT A. HINKLE--United States District Judge, Northern District of Florida; Chair of the Advisory Committee during the Restyling Project

PROFESSOR JOSEPH KIMBLE--Professor of Law, Thomas Cooley Law School; Style Consultant to the Restyling Project

HON. JOAN N. ERICKSEN--United States District Judge, District of Minnesota; Member of the Advisory Committee during the Restyling Project

HON. MARILYN L. HUFF--United States District Judge, Southern District of California; Member of the Style Subcommittee of the Standing Committee on Rules of Practice and Procedure; Standing Committee Liaison to the Advisory Committee

HON. REENA A. RAGGI--United States Circuit Judge, Court of Appeals for the Second Circuit; Member of the Standing Committee on Rules of Practice and Procedure during the Restyling Project

HON. GERALDINE SOAT BROWN--United States Magistrate Judge, Northern District of Illinois; Representative of the Federal Magistrate Judges Association

PROFESSOR EDWARD H. COOPER--Professor of Law, University of Michigan Law School; Reporter to the Advisory Committee on Civil Rules

LOOKING FORWARD

PROFESSOR KENNETH S. BROUN--Henry Brandis Professor of Law Emeritus, University of North Carolina School of Law; Consultant to the Advisory Committee and Research Director of the Restyling Project

HON. HARRIS L. HARTZ--United States Circuit Judge, Court of Appeals for the Tenth Circuit; Member of the Standing Committee on Rules of Practice and Procedure during the Restyling Project

HON. JOAN N. ERICKSEN--United States District Judge, District of Minnesota

PROFESSOR KATHARINE TRAYLOR SCHAFFZIN--Assistant Professor of Law, University of Memphis, Cecil C. Humphreys School of Law

PROFESSOR ROGER C. PARK--James Edgar Hervey Chair of Litigation, University of California, Hastings College of the Law

PROFESSOR DEBORAH J. MERRITT--John Deaver Drinko-Baker & Hostetler Professor of Law, The Ohio State University, Moritz College of Law

HON. ANDREW D. HURWITZ--Vice Chief Justice, Arizona Supreme Court; Member of the Advisory Committee during the Restyling Project

PROFESSOR W. JEREMY COUNSELLER--Professor of Law, Baylor Law School

PROFESSOR PAULA HANNAFORD-AGOR--Director, Center for Jury Studies, National Center for State Courts

OPENING REMARKS

DEAN DOUGLAS: Let me welcome everyone here. My name is Dave Douglas, and it's my pleasure to serve as Dean of the Law School here at William & Mary. We're delighted that you selected William & Mary Law School to hold this gathering today, so I want to welcome you all.

You are here at a law school that is a certain study of contrasts, both old and new. We're the oldest law school in the United States, founded in 1779 by then-Governor Thomas Jefferson for a very specific purpose, and that was to train political leaders who would serve the new nation. Jefferson was an optimist and thought that the colonists would win their independence, and this law school was founded to train leaders that would serve the new nation. The vision succeeded.

President Monroe studied here, as did Chief Justice John Marshall and many senators in those early years, but it's also a place of new developments. You're sitting in our courtroom here today, which Fred Lederer assures me is one of the most--if not the most--technologically advanced courtrooms in the world. That's why, apparently, you can't drink your coffee in here. They're concerned about all this fancy equipment being damaged by spilled drinks. We apologize for that. But we're delighted you're here and hope that you have a wonderful day.

And for those of you who are from either Dallas or St. Louis, I know you're a little bleary-eyed this morning. My condolences to those from Dallas, but there's always Game Seven.

So have a wonderful conference, and I look forward to the chance to talk to you later today. Good luck.

JUDGE FITZWATER: On behalf of Judge Mark R. Kravitz and the members of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, my colleagues on the Advisory Committee on Evidence Rules, and our Committee Reporter, Professor Dan Capra, I want to warmly welcome you to the Symposium on the restyled Rules of Evidence.

I would like to begin by expressing our appreciation to the William & Mary Marshall-Wythe College of Law for hosting this Symposium, and in particular, to Dean Davison M. Douglas and Professor Fredric Lederer. The Dean and the Law School welcomed us yesterday evening by hosting a lovely reception for participants in the Symposium and in the fall meeting of the Evidence Rules Committee. We are also indebted to the William and Mary Law Review for agreeing to publish the Symposium proceedings.

The restyled Rules of Evidence--which are scheduled to take effect on December 1, 2011, absent congressional action (1)--represent the last chapter in a decades-long effort to make the national rules of procedure clearer, more concise, and easier to use. The restyled Rules have been described as "Simpler. Easier to read. Easier to understand." And although they have yet to take effect, they have already won prestigious awards: the 2011 Burton Award for Reform in Law, presented by the Burton Awards for Legal Achievement, (2) and a 2011 ClearMark Award presented by the Center for Plain Language. (3)

Beginning in the early 1990s, Judge Robert Keeton, who was then chair of the Standing Committee, and Professor Charles Alan Wright led an effort to adopt clear and consistent style conventions for all the national rules of procedure. The rules had been enacted without consistent style conventions, so there were differences from one set of rules to another, and even from one rule to another within the same set. 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 drafters made no effort to write the rules in plain English.

With the approval of the Chief Justice of the United States, who presides over the Judicial Conference of the United States, the Advisory Committee on Evidence Rules undertook a restyling project beginning in the fall of 2007. This marked the first top-to-bottom restyling in thirty-six years since the Rules were enacted. The project required revising sixty-eight separate rules that addressed wide-ranging topics.

The Committee established a step-by-step process for restyling in compliance with previous restyling projects and with the Rules Enabling Act. (4) These steps involved multiple levels of drafting and review by a style consultant, the Advisory Committee on Evidence Rules, and the Style Subcommittee of the Standing Committee, as well as substantial input from judges, lawyers, and academics. The restyled Evidence Rules are the product of a thorough and intensive multi-year revision process that involved the best legal minds and legal writers.

The leader of this complex undertaking is my predecessor as chair of the Evidence Committee, Judge Robert L. Hinkle of the Northern District of Florida. I am personally pleased that he is participating in this Symposium so that he can receive the credit due him for guiding this important project to an award-winning conclusion. In addition to Judge Hinkle, Judge James A. Teilborg of the District of Arizona, Judge Marilyn L. Huff of the Southern District of California, and Attorney William J. Maledon of Phoenix, Arizona contributed significantly as members of the Style Subcommittee of the Standing Committee. Other Standing Committee members--particularly Judge Harris L. Hartz of the Tenth Circuit, Judge Reena Raggi of the Second Circuit, and Dean David F. Levi of Duke Law School--made important contributions by thoroughly and thoughtfully reviewing the Rules.

Two law professors were so integral to the restyling project that, without embellishment, they can be called the sine qua non of the restyled Evidence Rules: Professor Daniel J. Capra of Fordham Law School, who serves as Reporter to the Advisory Committee on Evidence Rules, and Professor Joseph Kimble of Thomas Cooley Law School, who served as the style consultant for the restyling project. Professor Capra's knowledge of the Evidence Rules has aptly been described as "encyclopedic." And Professor Kimble, a preeminent legal writer who also served as style consultant for the restyled Civil Rules, is the editor-in-chief of The Scribes Journal of Legal Writing and has been the editor of the "Plain Language" column of the Michigan Bar Journal for more than twenty years.

The restyled Evidence Rules are intended to be restated, plain-language versions of the prior Rules. The intent of the project was to make the Rules simpler, easier to read, and easier to understand without changing their substance. In fact, the most challenging part of the restyling project was to improve the style of the Evidence Rules without altering substance. As Judge Hinkle said, "There will be no change at all in the meaning or application of any rule. A judge or lawyer would get the right result using either a restyled rule or the old version. However, we think the chance of misunderstanding the rule is much smaller using the restyled version." (5)

To ensure that no such changes would be made, the Advisory Committee on Evidence Rules adopted a working definition of a substantive change. A proposed change was substantive under any of these circumstances: under the existing practice in any circuit, it could lead to a different...

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