The Federal Rules of Civil Procedure and Evidence will undergo changes effective December 1, 2003, absent congressional action to the contrary. These changes will affect Civil Procedure Rules 23, 51, 53, 54 and 71A and Evidence Rule 608(b). The following is a summary of the significant changes.
Rule 23 (Class Action). 23(c) (class certification). The requirement that the court determine whether to certify a class "as soon as practicable after commencement of an action" is replaced by requiring determination "at an early practicable time." The provision that a class certification "may be conditional" is deleted. The provision that permits alteration or amendment of an order granting or denying class certification is amended to set the cut-off point at final judgment rather than "the decision on the merits." The notice provisions are substantially revised. The court is given authority to direct notice to class members in a (b)(1) or (b)(2) class action. The rule directs that class-certification notice be couched in plain, easily understood language.
23(e) (settlement, dismissal or compromise). The process of reviewing proposed class-action settlements is strengthen. The amended subdivision requires approval if the claims, issues, or defenses of a certified class are resolved by a settlement, voluntary dismissal, or compromise. Subdivision (e)(1)(B) requires notice of a settlement binding on the class when the settlement follows class certification or when the decisions on certification and settlement proceed simultaneously. Subdivision (e)(1)(C) mandates the holding of hearings as part of the process of approving settlement, voluntary dismissal, or compromise that would bind members of a class. Subdivision (e)(1)(C) states that for approving a proposed settlement that would bind class members, the court must conclude that the settlement is fair, reasonable, and adequate and make detailed findings. Subdivision (e)(2) requires parties seeking approval of a settlement, voluntary dismissal, or compromise under Rule 23(e)(1) to file a statement identifying any agreement made in connection with the settlement. Subdivision (e)(3) authorizes the court to refuse to approve a settlement unless the settlement affords class members a new opportunity to request exclusion from a class certified under Rule 23(b)(3) after settlement terms are known. It also authorizes the court to refuse to approve a settlement unless the settlement affords a new opportunity to elect exclusion in a case that settles after a certification decision if the earlier opportunity to elect exclusion provided with the certification notice has expired by the time of the settlement notice. Subdivision (e)(4) confirms class members' right to object to a proposed settlement without opting out of the litigation, but the class member must obtain court approval before abandoning its objection.
23(g) (class counsel). Subdivision (g) is new. It recognizes the importance of class counsel, states the obligation to represent the interests of the class, and provides a framework for selection of class counsel.
23(h) (attorney fee awards). Subdivision (h) is new. It requires the court to examine a number of factors, including the work and effort the potential class counsel has actually put into the case, his experience in handling class actions and claims similar to those being asserted, his knowledge of the applicable law and "the resources counsel will commit to representing the class." Moreover, the court may direct that potential class counsel "propose terms for attorneys' fees and nontaxable costs" as part of the court's evaluation of the adequacy of counsel.
Rule 51 (Instructions to Jury). Amended Subdivision (a) recognizes the court's authority to direct that requests be submitted before trial. Amended Subdivision (a)(2)(B) expressly recognizes the court's discretion to act on an untimely request. To be considered under subdivision (a)(2)(B) a request should be made before final instructions and before final jury arguments. Amended Subdivision (b)(1) requires the court to inform the parties, before instructing the jury and before final jury arguments related to the instruction, of the proposed instructions as well as the proposed action on instruction requests. Amended Subdivision (b)(2) makes explicit the opportunity to object on the record, ensuring a clear memorial of the objection. Amended Subdivision (b)(3) authorizes instructions at any time after trial begins and before the jury is discharged. Amended Subdivision (c) states the right to object to an instruction or the failure to give an instruction. Amended Subdivision (d)(1)(B) establishes authority to review the failure to grant a timely request, despite a failure to add an objection, when the court has made a definitive ruling on the record rejecting the request.
Rule 53 (Masters). The amended rule clarifies and substantially rewrites the provisions that govern the appointment and function of masters.
Rule 54 (Judgments, Costs). This rule is amended to reflect changes in Rule 53.
Rule 71A (Condemnation of Property). This rule is amended to reflect changes in Rule 53.
Evidence Rule 608(b) (Character Evidence -- Specific Instances of Conduct). The amendment makes clear that the absolute bar on the use of extrinsic evidence is applicable only when the sole reason for proffering such evidence is to support or attack the witness' character for truthfulness.
See our web site www.legalpub.com for the full text of all the changes. The 2003 edition of our Federal Civil Rules Booklet will be available for shipment in late December, just weeks after these new changes take effect. The Booklet will contain the fully updated Federal Rules of Civil Procedure (including these integrated amendments), the fully updated Federal Rules of Evidence, as well as the federal jurisdiction, venue and removal statutes (28 USC §1330 et seq.).
The Booklet is still about half the price of other publications and by far the earliest available with the updated rules.
Dahlstrom Legal Publishing, Inc.
orders@legalpub.com
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fax: 978-456-9247
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