Thursday, October 02, 2008

Prof. Eichhorn Publishes Article on Drafting and the FRCP Style Project

Professor Lisa Eichhorn (South Carolina) recently published an article entitled Clarity and the Federal Rules of Civil Procedure: A Lesson from the Style Project, 5 Journal of the Association of Legal Writing Instructors 1 (2008). Here is an excerpt from the Introduction:

At the stroke of midnight on December 1, 2007, the Federal Rules of Civil Procedure both changed completely and did not change at all. As a result of the Style Project, a monumental undertaking of the Judicial Conference's Standing Committee on Rules of Practice and Procedure, a full stylistic revision replaced the existing text of the civil rules with the aim of “conveying unchanged meaning more clearly and more efficiently.” As a veteran teacher of both Civil Procedure and Legal Writing, I am by turns elated and angst-ridden about this change, but I remain in awe of those who have been so undaunted and diligent as to bring it about.

I am not an experienced drafter of rules, and this article does not attempt to extract a long list of specific drafting tips from the work of the Style Project, nor does it undertake a rule-by-rule critique of the restyling. The best drafting advice to emerge from the Style Project has already been memorialized by the consultants who participated in the effort, and the best critique of the restyling will come from the combined experiences of the lawyers and judges who will navigate, interpret, and apply the new language in the years to come.

Instead, this article treats the Style Project's revision of the civil rules as a case study to examine the place of plain language techniques in the legislative-and rule-drafting process. The after-the-fact, non-substantive nature of the Style Project's revision is extraordinary and will no doubt generate some complex interpretive problems. Nevertheless, comparisons of old and restyled rule language reveal that plain language techniques can play a beneficial role in the ordinary rule-drafting process. Such techniques, when intelligently and flexibly employed, need not hinder a rule's ability to convey complex content, to function effectively within an existing legal context, or to communicate to an appropriate audience. Time will tell if the Style Project has succeeded at every turn in the extraordinary task of preserving the precise meaning of the civil rules while clarifying the expression of that meaning. Meanwhile, the restyled rules already demonstrate that in more ordinary rule-drafting and rule-revising scenarios, where drafters must express new substantive meaning as clearly as possible, the style fostered by plain language techniques can convey detailed, sophisticated content effectively.


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