Vol. 7, No. 5, Pg. 14. The Rules, They are a Changin' Federal Practice and Procedure in South Carolina.

• Author: By the Hon. Joseph F. Anderson Jr. and Virginia L. Vroegop

South Carolina Lawyer

1996.

Vol. 7, No. 5, Pg. 14.

The Rules, They are a Changin' Federal Practice and Procedure in South Carolina

14THE RULES, THEY ARE A CHANGIN' . . . FEDERAL PRACTICE AND PROCEDURE IN SOUTH CAROLINABy the Hon. Joseph F. Anderson Jr. and Virginia L. VroegopA former Chief Justice of the United States once described the rules of court as "the most important tools of the courtroom lawyer." He was right. The importance of a good working knowledge of the rules of procedure cannot be overstated. One can be a consummate trial lawyer in all other respects-substantive law, evidence, the "craft" of advocacy-and yet suffer disaster from a misstep on a relatively minor procedural rule.

The past two years have witnessed a series of significant changes in both the Federal and Local Rules of Civil Procedure. As Charles Alan Wright has said, "[elven the best system of court rules cannot remain static." This article will explore recent rule changes with implications for lawyers practicing in the District of South Carolina.

Before discussing the text of the rules changes themselves, a brief look at the historical antecedents for these changes is appropriate.

THE CIVIL JUSTICE REFORM ACT

In 1991 Congress enacted the Civil Justice Reform Act in an effort to address the twin evils of undue cost and delay in federal civil litigation. The act required each of the 94 federal districts to examine the root causes of cost and delay in their districts and to formulate and implement plans to attack the problems that had been identified.

In South Carolina, the court appointed a committee comprised of judges, experienced litigators and lay persons. This committee presented a plan to the court in late 1993. The court adopted the plan, with minor modifications, and then implemented the plan with a series of amendments to the local rules of practice adopted in December 1993 and July 1995. In adopting these new rules, the court also received input from the District Court Advisory Committee, a group of federal practitioners who have assisted the court in formulating local rules and procedures since 1983.

THE 1993 AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE

In 1993, the Civil Rules Advisory Committee proposed a number of significant amendments to the Federal Rules of Civil Procedure. These changes, described by Justice Antonin Scalia as "breathtakingly novel" and by others as the most significant changes to the federal rules since their adoption in 1938, represent an effort to curtail burgeoning court dockets and the proliferation of abusive discovery tactics.

The proposed changes were at once as controversial as they were novel. In addition to significantchanges to Rules 11 and 26, the rules expressly authorized local districts to opt out of, or modify, several of the new provisions. To the surprise of many, Congress allowed the changes to go into effect without modification, thus ushering in a new era of federal practice. For the first time since 1938, the nation does not operate under a uniform set of national rules.

The interplay of these two developments-the Civil Justice Reform Act initiatives and the now-Balkanized federal rules-makes this a time of great change and experimentation in civil justice. The long range plan is to allow the individual federal districts to serve as laboratories for innovations that can be evaluated several years hence. The , most successful elements of various plans could then be adopted nationwide, thereby returning to a set of uniform national rules comprised of the most successful and effective features of various local plans. With this background, this article will turn to an overview of the most important rules changes of the last two years.

WAIVER OF SERVICE

New Federal Rule 4(d) is designed to expedite the service of the summons and complaint by encouraging, via a "carrot and stick"

16 approach, a voluntary acceptance of the pleadings. If a defendant accepts service, the defendant is allowed more time to answer-60 days instead of the 20 days provided by Rule 12 for defendants who are personally served. A defendant who is offered the option of accepting service and declines that offer is responsible for the costs of effecting service as well as costs and attorney's fees associated with any motion to collect costs. A waiver of service under Rule 4(d) does not waive objections to venue or personal jurisdiction.

Despite the obvious benefits that new Rule 4(d) affords plaintiffs and defendants alike, the rule is, thus far, little-used in South Carolina. A compelling argument can be made that it should be used in virtually every case.

CONSENSUAL EXTENSIONS OF TIME

Local Rule 7.12 has been revised to allow a party to consent to a onetime extension of time to respond to a pleading in which a claim is asserted. Unlike the old rule that required a court order to memorialize the extension, the new rule allows the extension without court involvement. The extension may not exceed the lesser of 20 days or the number of days within which the original response was due.

FILING BY FACSIMILE

Rule 5 is amended to allow filing by facsimile when authorized by local rule. The local rules for the District of South...