Local Rules: Back to 1937, or a Jubilee YearAuthor(s): Bill WilsonSource: Litigation, Vol. 24, No. 4, DISCOVERY · DOLLARS · DEPOSITIONS (Summer 1998), pp. 5-6, 64Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29760008 .

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From the Bench

Local Rules:

Back to 1937, or a Jubilee Year

One opponent of the adoption of the uni? form federal procedural rules in the 1930s?Connor Hall, a member of the

West Virginia Bar?protested mightily: ... (W)e should be shown in what

way uniformity would promote justice. Unless it is to promote jus? tice, then it is useless.

* * *

Sponsors of the bill, however, speak of uniformity as if it were some excellence in itself, some?

thing transcendental and absolute; or at least, an undoubted blessing, as health, happiness, or virtue. No reasons are given why uniformity, if attained, would be of advantage to any litigant, though it might be to some lawyers.

Hall spoke for a minority in his day. Most of the leaders of the bench and bar heralded the new rules as a tremen? dous step forward. Uniformity, cer?

tainty, and simplicity were, indeed, deemed to be laudable goals. I hold with the 1938 majority; but if proof of the pudding is in the eating, Connor Hall has carried the day. Local rules

(district and appellate) have rendered

uniformity asunder. Before 1938, district courts were

required to follow the procedure of the state in which the court was located. This created a "Tower of Babel" in the modern world, according to supporters of uniform rules. Although uniformity has never been uniformly endorsed, the

by Bill Wilson Judge, U.S. District Court,

Eastern District of Arkansas

great majority of practicing lawyers appear to have heartily endorsed it over the years. As John P. Frank of the Ari? zona Bar put it in 1988:

I . . . shall begin with the general premises that local rules are the curse of the law-practicing classes ...

Let me begin with an article of faith...

Conformity has been an article of faith with us (in Arizona). The why of all this conformity was clear enough. Our goal was to make life as simple as possible for our lawyers, particularly the

young ones as they came along, so

they could not make mistakes eas?

ily. We believe that uniformity was more valuable than the detail merit of any particular rule?that the range of choice between the rule alternatives was not great enough to warrant the hazard of a

lawyer making a mistake by fol?

lowing the wrong rule....

When the local rules vary from district court to district court within a jurisdiction, the situation becomes an outright abomination. I cannot report on the Denver situ? ation at this moment, but the last

time I looked into it, a litigation law office needed an entire wall

plastered with the separate local rules for each of the district courts in that community. This kind of

divergence, I would say bluntly, is the product of sheer arrogance and

irresponsibility. I chose the word

"arrogance" with deliberate care. In the fundamental terms of the cost of

practicing law, it is more important to be uniform than to be right. This is not to say that there is no function for local rules, but it is a narrow one. A tremendous weak?

ness of local rules is the failure to

give thought to all the values worth taking into account. Again, let me be concrete. Some district courts have held occasional status

days or calendar calls when all the

lawyers and all the matters before them were called into court simul?

taneously for a series of one minute reports or equally brief orders. All those lawyers had to

get to and from that courtroom and had to sit through everything else on the calendar. I personally have seen occasions when liti?

gants were being charged, in the

aggregate, somewhere between $10,000 and $20,000 for a cere?

mony which was operated exclu?

sively for the convenience of the

judge and which could have been handled just as well by postcards, clerks, or telephone calls.

Litigation Summer 1998 Volume 24 Number 4

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Those who originally drafted Rule 83 of the Federal Rules of Civil Proce? dure thought that the power to make local rules would be used only on rare occasions. Their thinking was

expressed at various institutes held at the time the national rules took effect.

As early as 1940, a Judicial Conference committee recommended that local rules be revised to comply with the national rules, and that no additional local rules be permitted unless a "press? ing need" was shown.

Nonetheless, local rules have prolif? erated, and, in 1985, the Standing Com? mittee of the United States Judicial Conference established a Local Rules

Project to study this phenomenon (I would prefer to use "problem" rather than "phenomenon," but this might indicate a bias against local rules).

In 1988, the Local Rules Project noted that it had reviewed local rules in all 94 districts. It found a total of

approximately 5000 local rules, and this did not include discrete subparts. At one end of the spectrum, the Middle District of Georgia had only one local rule and one standing order. This was not the typical district. At the other end, another district had 31 local rules and 435 "subrules"?and, on top of that, it had 275 standing orders (three heavy bound volumes' worth).

In an attempt to organize these rules for evaluation, the Project established 103 categories. Juxtaposing all of these local rules and the national rules, the Pro?

ject found 809 "possible repetitions" and 837 "possible inconsistencies" (the members of the Project are polite and, at

times, as in this instance, euphemistic). As a result of the Local Rules Project

study, the Judicial Conference required that local rules be numbered uniformly (two-blocking with the numbers of the federal rules where there is an ana?

logue). This may be of considerable

help to practitioners, especially in the districts where local rules have Cecil B. DeMille dimensions. It should be noted, however, that the deadline for

coordinating the numbering was April 1997, and 42 percent of the 94 districts have not complied.

As a member of the Standing Com? mittee of the Judicial Conference for several years, I have had the opportunity to read hundreds of these local rules.

Very few are draconian, although a

goodly number do tend to set traps for the unwary (some of them are traps pri?

marily because they are buried in a

groundslide load of more innocuous local rules). Some of them are what one

lawyer described as "good little rules." Even with respect to these good little rules, I am of the John Frank school?if a local rule is shot through with merit it should be adopted nationally, but only after going through the due process established for the national rules.

Some of these local rules are so

funny that they would make a dog laugh. In fact, more than one Far Side calendar could be made of them.

Not long ago, when I started this arti? cle, I favored total abolition of local rules. If we could have an effective local rule police person, I would stand pat on this position. But research, including conversations with several district and circuit judges, has convinced me that total abolition would suffer the fate of

prohibition. Local orders of various

stripes would spring up, willy-nilly; and there would be no reviewing authority. In any event, abolition is not practically possible. Hell hath no fury like that of a federal judge with his local rules scorned. There would be a firestorm of

protest throughout the federal judiciary if a rule prohibiting local rules were

proposed.

I make this concession although abo? lition has worked well in the laboratory of a state court. In In re changes to the Arkansas Rules of Civil Procedure 742 S.W.2d 551 (1987) the Arkansas

Supreme Court abolished local rules, and spoke plainly on the subject.

. . . (W)e wish to comment upon the abolition of Arkansas Rule of Civil Procedure 83. In 1984 the committee suggested that we abolish all local court rules. We declined to do so at that time, but asked the committee to document its complaint that local rules

weren't necessary and were serv?

ing as little more than traps for the

unwary lawyer or litigant partici? pating in a case while away from home. The committee came back to us with documented instances of conflicts between local rules and the Arkansas Rules of Civil Procedure. . . .

* * *

We then embarked upon a com?

promise. We asked the trial courts to review their local rules and to tender revised versions of their local rules. . ..

* * *

. . . (A)s we have continued to review local rules tendered to us, we and the committee have observed that many of the rules are no more than "housekeeping" orders having nothing to do with the conduct of lawyers or litigants. Others are duplicative of the Arkansas Rules of Civil Procedure and thus served no purpose except to say the same thing in a different

way and provide unnecessary fod? der for disagreement. Sometimes hidden within these innocuous and

repetitious provisions, there are

procedural requirements which do conflict with the Arkansas Rules of Civil Procedure and which may seriously affect the rights of liti?

gants. To become aware of these rules, a litigant or counsel may have to wade through many pages of

confusing materials.

A member of the bar of this state, or a litigant representing himself or herself, should be able to go into any of our courts and know

what to expect without having to

read, in some instances, fifty pages of local rules trying to dis? cern their effect. We recognize that some of the local rules may have great merit, and if they do, we should consider adopting them for all our courts. .. .

# * #

We recognize that not all our

judges operate under the same con? ditions. However, when inconve?

nience caused by not having local rules is balanced against the incon? venience caused by them and, more importantly, against the often

unanticipated and unnecessary effect they may have upon the right of litigants, we conclude the scales

tip in favor of not having them.

I am happy to report that, despite dire predictions of trial judges to the

contrary, the Arkansas sky has not fallen in the 10 years following the abo? lition of local rules. If there has been

any move to repeal prohibition I am unaware of it.

After the 1988 report of the Local Rules Project, the Advisory Commit? tee on the Federal Rules of Civil Pro? cedure scrutinized Rule 83 again. In 1995, a compromise was attempted via amendments to this rule. In short, the 1995 amendments are designed to rein

(Please turn to page 64)

Litigation Summer 1998 Volume 24 Number 4

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Of course there were a lot of other

things to do, like making sure all of our witnesses would show up, making all our demonstrative evidence as fair and

simple and memorable as possible, and

doing some practice rounds of direct and cross-examination with our most

important witnesses.

By the time we started working on witness order and putting our trial note? book together, Marty Logan had become a total convert to the Angus system of trial preparation. Marty said, "I wonder if the defendant's trial team has any idea of what's about to hit them?"

They didn't. IS

From the

Bench (Continued from page 6) in local rules.

Rule 83 (a)(1) plainly states that local rules must be consistent with the Civil Rules and with Acts of Congress (the lat? ter might seem self-evident, but experi? ence has taught that it is not). Of course, the Federal Rules of Civil Procedure

may supersede a statute, but only when

Congress has been given an opportunity to prevent the rule from going into effect.

On the other hand, there is no require? ment that Congress be notified of the

adoption (or proposed adoption) of a local rule, so it stands to reason that there should be no argument that a local rule can vitiate an act of Congress.

Rule 83 (a)(2) is new. It provides: A local rule imposing a require? ment of form shall not be enforced in a manner that causes a party to lose rights because of nonwillful failure to comply with the requirement.

While this may give some aid and com? fort to the unwary, please note that it

applies only to a requirement of form

(e.g., as stated in the Advisory Com? mittee Notes, "a party should not be

deprived of the right to jury trial because its attorney, unaware of?or

forgetting?a local rule directing that a

jury demand be noted in the caption of the case, includes a jury demand only in the body of the pleading").

One should also be aware that Rule 83

(b) provides, in part, that, "(n)o sanction

or other disadvantage may be imposed for noncompliance with any requirement not in federal law, federal rules, or the local district rules, unless the alleged vio? lator has been furnished in the particular case with actual notice of the require? ment." With respect to this provision, the

Advisory Committee tells us:

. . . This rule recognizes that

courts rely on multiple directives to control practice

... some courts

. . . have used internal operating

procedures, standing orders, and other internal directives. Although such directives continue to be authorized, they can lead to prob? lems. Counsel or litigants may be unaware of various directives. In

addition, the sheer volume of directives may impose an unrea? sonable barrier.

* * *

Furnishing litigants with a copy outlining the judge's practices? or attaching instructions to a notice setting a case for confer? ence or trial?would suffice to

give actual notice, as would an order in a case specifically adopt? ing by reference a judge's stand?

ing order and indicating how

copies can be obtained....

The amendments to Rule 83(a) also

appear to contemplate a review, and

possible abrogation, by the judicial council of the circuit. As discussed ear?

lier, however, 42 percent of the districts have not renumbered their local rules as

required by Rule 85 (and within the time limits set by the Judicial Confer?

ence). At least one judicial council of a circuit has recently approved a set of local rules that have not been renum? bered as required.

It was the clear intent of the 1995 amendments to "circumscribe and

shorten" local rules. As Wright and Miller put it:

In the wake of the 1995 amend? ments, it is to be hoped that district courts will review, reorganize, and

prune their local rules ... as the

revisions occur, the judicial coun? sels are to scrutinize them. These

developments may, therefore, lead to some abatement of the proce? dural cacophony caused by local rules.

As far as I know, there are no reports coming in from the fleet to indicate that there has been any appreciable circum

scribing or shortening, and I am nowise

sanguine, especially if the past 40 years of experience is any indicator.

Please let me submit a serious pro? posal (I tell you that it is serious, so that you can tell). Rule 83 should be amended to prohibit more than 20 or 30 local rules. I think 20 would be plenty: 30 has been suggested by Jacob A. Stein of the Washington, D.C. bar (more about him in a moment). This would have to be a flat-footed limit, i.e., no discrete

subparts, and perhaps a limit of, say, 100 words per rule should be established. One wouldn't want to tempt a judge to

put several rules in one long sentence, grammar take the hindmost.

In an article published recently in The Washington Lawyer, Jake Stein called for a Jubilee year. Stein teaches us that, in the Holy Writ, a Jubilee year comes every 50 years. It is the year of

forgiveness. Commercial obligations incurred over the past 49 years are can?

celed. Mortgages and promissory notes are nullified. Statutory governmental detritus disappears. All gone.

I say hallelujah but I say it with a small "h" because, as noted above, abo?

lition is not to be (no matter how fondly some of us dream of it). But surely rea? sonable people?and judges?can agree that we need to cut the number of local rules to a reasonable number. A

lawyer traveling from one district to another (sometimes a distance of blocks, rather than miles) should not have to go back to law school with each district change.

The local rule limit would have to include standing orders, general orders, and the like; or some reasonable limit would have to be put on them too. There is no doubt that standing orders govern? ing truly "internal operating proce? dures" are appropriate. A very few local rules may be helpful, but we should forevermore keep in mind that sheer vol? ume is a serious vice in and of itself.

Maybe we should think about

restricting local rules only to particular subjects (e.g., admission to practice in the local district); likewise, it might be

helpful if the Advisory Committee notes to Rule 83 suggest those areas where local rules may be more appro? priate, and those areas where special effort should be made to maintain uni?

formity (virtually all areas that really count in my view).

In fine, I say let's have ourselves a semi-Jubilee year in the federal sys? tem?a limit of 20 or 30 local rules. 10

Litigation Summer 1998 Volume 24 Number 4

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