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winter | federation flyer
www.thefederation.org
There is real progress
in the on-going
work to improve
civil litigation
rules. Lawyers for
Civil Justice, which
advocates for federal
procedural and evidentiary rule
changes, continues to have a
significant impact on the litigation
terrain through its advocacy in
the federal judiciary’s rulemaking
process and through its support
for the work of its members in the
federal process and in the states.
LCJ’s members -- the three major
defense bar organizations including
the FDCC, 70 law firms, and over
35 major companies – utilize their
experience in federal and state
court, to collaborate on meaningful
rule-focused litigation reform. The
Federation is a founding member of
LCJ and remains a close partner in
its work.
LCJ’s initiatives to secure improved
litigation and evidentiary rules has
seen strong progress in 2024 and
the year ahead should be just as
eventful:
•
Following the adoption of
improved expert evidence
admission standards through
the amendment to FRE 702
last December, work has
accelerated to ensure that
federal courts are appropriately
applying the amended rule.
The amendment to Rule 702
clarifies the important and on-
going gatekeeping role of judges
in determining the admissibility
of expert evidence. Amicus
support has been provided in a
number of cases. Scores of court
decisions this year have applied
Rule 702 to address expert
admission, and numerous
decisions have excluded experts
and rendered verdicts based on
the exclusion of their testimony.
•
LCJ, working with the FDCC,
is supporting state initiatives
around the country on behalf of
improved state expert evidence
rules consistent with amended
Rule 702. These efforts have
already secured results. Five
states – Arizona, Kentucky,
Louisiana, Michigan, and
Ohio, as well as the US Virgin
Islands, have adopted the
federal rule on admission of
expert evidence. Initiatives are
underway in another dozen
states in support of proposals
to improve state rules, which
should reduce the amount of
junk science from reaching
juries.
•
The Advisory Committee
on Civil Rules this Spring
recommended, and the U.S.
Supreme Court will soon
consider, proposed new Federal
Rule of Civil Procedure 16.1,
which will improve the conduct
of multi-district litigation. Over
70% of federal cases are now
pending in MDL’s so this new
rule will be highly impactful.
•
Running in tandem with
the new MDL Rule, rule
amendments improving
flexibility in privilege logging
have been adopted by the U.S.
Judicial Conference and are
expected to be adopted by
the Supreme Court. Privilege
logging is expensive and
often wasteful – these rule
changes encouraging the move
away from document-by-
document logging should prove
significant.
•
The Advisory Committee on
Civil Rules is considering new
rules on remote testimony.
While LCJ opposes plaintiff
bar-sponsored proposals which
could lead to the misuse of
remote testimony, LCJ is also
advocating that any new rules
place appropriate limits on the
practice.
Dan Steen
New and Proposed Rules Changes Impact Litigation
By Dan Steen
section title FDCC Pillars