In the inaugural episode, host Paul W. Grimm, a retired federal judge and director of the Bolch Judicial Institute at Duke Law, and U.S. District Judge Robin L. Rosenberg discuss the federal rules of civil procedure and the rulemaking process. They break down how the rules are made and how they work in order to help attorneys, judges, and the general public better understand this essential aspect of the United States court system.
Narrator: Hello and welcome to Order in the Court, a podcast production of the Bolch Judicial Institute of Duke Law School. Here’s your host, retired federal judge and the director of the Bolch Judicial Institute, Paul Grimm.
Paul W. Grimm: Welcome everyone to Order in the Court, the podcast that provides practical discussions about how judges and lawyers can be more efficient and effective in handling civil and criminal cases. Today my guest is United States District Judge Robin Rosenberg of the Southern District of Florida. Judge Rosenberg also chairs the United States Court’s Advisory Committee on the Civil Rules. That’s the committee that I also served on from 2009 until 2015 when I was a US district judge. In the first episode of this podcast, Judge Rosenberg and I talk about the work of this committee with the hopes that by the end of this episode, more of our listeners will come to share our appreciation of the rules that govern civil and criminal cases and the importance of these rules and the rulemaking process.
Judge Rosenberg, welcome and thank you so much for joining me today. I’d like to talk a little bit about the Federal Rules of Practice and Procedure. Before I became a member of the Civil Rules Advisory Committee in 2009, I knew that there were rules of practice and procedure, but I had very little understanding of how the rules were adopted and amended. And I’m almost ashamed to admit that I probably had not very often read the advisory notes that underlie the rules themselves. So I think our listeners would really benefit, like I benefited through when I joined the committee, understanding how the rules of practice and procedure are adopted and amended. Could you give us a general overview of that process?
Judge Robin L. Rosenberg: Sure, Paul, and it’s great to be here with you. So broadly speaking, the way the process begins is that someone will identify a need for a rule or an amendment, whether it’s someone on the rules committee, a judge, a lawyer, or quite frankly anyone else. Then that proposal is submitted to the appropriate Rules Committee for consideration. Often, then, a subcommittee would be formed so that the committee and the subcommittee can analyze the issue more carefully surrounding the proposed rule or a proposed amendment and to determine and make a recommendation to the larger committee as to whether in fact a change is needed. Now, the way the subcommittee does its work is it often solicits input from lawyers and judges and academicians and other interested parties. If a change ultimately is deemed appropriate and necessary, the subcommittee might draft the proposed change, which then goes to the full committee followed by the full committee on Rules of Practice and Procedure, which is known as the Standing Committee with changes and discussions to go along the way.
Now, this is just the beginning because if it is actually approved by the Standing Committee, there is a period of notice and public comment as to that change or amendment. Some proposed changes generate very little in public comment and some have generated, quite frankly, thousands of comments. You may have seen that in your days on the Civil Rules Committee. After the public comment period, there may be changes that need to be instituted based on the comments, and if there are no changes or if those changes are in fact minor, the rule then goes to the Supreme Court and Congress for final approval. Now, alternatively, if there are major changes, the proposed change may have to go back to the committee for additional study or revision, and then it basically goes through the whole process again. So it’s a lengthy process. It’s a careful one. It’s detailed.
Paul W. Grimm: Well, I’ll come back to that in just a second because I think its strength is also sometimes its challenge, but we’ll get to that in just a second. There are committees. The committee that you chair now and that I served on is the Civil Rules Advisory Committee, but there’s a committee for the evidence rules and the Rules of Criminal Procedure and the Rules of Appellate Procedure and for bankruptcy law. So we do have a number of these advisory committees that are within the umbrella of the Rules of Practice and Procedure. Can you give us an idea of who serves on these committees?
Judge Robin L. Rosenberg: Sure. So not by name because, of course, those persons change regularly based on their terms of service, but the way the persons come to serve on these committees are really by being individually selected by the Chief Justice. Each member will then serve two, three-year terms. So more or less for a total of six years. Now there’s certain exceptions where somebody’s term could be extended. Sometimes that will happen if the committee is involved and in the middle of work, say, on a proposed amendment, and the committee doesn’t want to lose the knowledge that that person who might otherwise be moving off of the committee. So that that won’t transpire, oftentimes somebody can be extended for a year, but more or less two, three-year terms. And in terms of who comprises these individually selected persons by the Chief Justice, there are federal trial and appellate judges. There are magistrate judges, state court appellate judges, attorneys representing both plaintiffs and defense, representatives from the Department of Justice and highly respected law school professors who serve as reporters and associate reporters to each of the committees.
Now, each committee usually has a majority of judges including at least one district judge, appellate judge, magistrate judge, and the state’s highest court justice. But they’re also practitioners, as I indicated, someone from the DOJ and an academic member who is not a reporter. The members of the advisory committee are sometimes ultimately appointed to the Standing Committee. And just by way of background, the original committee in the 1930s had no judges at all, and that was discharged then by Chief Justice Burger in 1958. But Congress wanted there to be committees with authority to make changes to the rules. So it passed statutory directives in 1958 that created the Standing Committee. And since then, that’s when the other advisory committees or the advisory committees rather have been created.
Paul W. Grimm: One of the things that impressed me so much when I was on the committee, and I think that people don’t necessarily have a full appreciation for is just how thoughtful the selection process is to make sure that you have all of the parties who might be impacted by rules of practice and procedure are at the table. Practitioners, plaintiff’s lawyers, defense lawyers, the Department of Justice, state court, high court judges, appellate judges, trial judges to really make sure that there’s a breadth there. Another thing that really shocked me before I became aware of how the procedure was is that it’s created by statute and there’s actually a statute known as the Rules Enabling Act, which is found at 28 United States Code sections 2072 to 2075, which was enacted in 1988.
And I’d like to zoom in on some of the features of this statute because they help flesh out just how carefully both Congress and the administrative hierarchy of the federal courts operates in this very central area. So, for example, section 2072 authorizes the Supreme Court to prescribe general rules of practice and procedure, and procedure and rules of evidence, but states that these rules “shall not abridge, enlarge or modify any substantive right.” Initially, when I was on the committee, I didn’t understand what that meant. I learned later the careful intent to not step on state substantive law. Can you give us some, just flesh that out a little bit so we can have a better understanding of what this cautionary limitation means?
Judge Robin L. Rosenberg: Sure. Generally speaking, there can be tension or potential conflicts between rules and statutes. And committees do what they can to clarify rules when this is an issue. So one example is actually a recent amendment to Rule 12(a), which governs the time to respond to a complaint. So the rule could be read to supersede statutes relating to response times for government agencies. So small changes in the wording of this rule were made to resolve this ambiguity. The Civil Rules Committee voted to adopt the change. The supersession clause provides that a federal rule supersedes a contrary statute. This was done, at least in part, because there were procedural provisions scattered throughout the federal statutes and it seemed impractical to find and address all of them. In making changes to the rules, the drafters are careful to state the intent of the proposed change, whether the changes intended to supersede a contrary statute. And an example is Rule 23(g) regarding appointing class counsel. It was amended in 2003 and begins, “unless a statute provides otherwise.”
Paul W. Grimm: So I guess what the takeaway point for our audience would be is that because rules of practice and procedure, by definition, are employed to resolve substantive disputes. There is a desire to make sure that by changing practice and procedure — which is the how to do it, when to do it — that you not change the underlying law that will be decided in the litigation. And I think that that’s the takeaway point, if I understand your comments for what the purpose is supposed to be.
Judge Robin L. Rosenberg: That’s exactly right. And this comes up often when we meet as a committee and we are debating issues that come before us through the various vehicles that I explained earlier. One of the first questions we often ask is, “Is this an area for rulemaking? Is this something within the purview of the Rules Enabling Act that even if we thought something was a good idea, is this something that can be done by way of rulemaking?” So that is a guiding force that we are always mindful of in the rules process.
Paul W. Grimm: And I think that that was particularly illustrated by the fact that the care that’s been taken to have practitioners as well as state high court judges there, to make sure that that first question that you made reference to is this appropriate for rulemaking is answered before you jump in and do something that might have unintended consequences.
I’d like to shift now to the Standing Committee because the Standing Committee is, I think, probably the least well understood committee. The lawyers who are bankruptcy lawyers know the bankruptcy rules and the civil practitioners know the civil rules, or at least they should. Same with criminal procedure and evidence and appellate practice. But the Standing Committee actually has a vital role. It’s defined in section 2073(b)), and that is to review recommendations by the various committees and then make reference to the Judicial Conference regarding those rules.
So we start with the basic committee itself. They go through the process that you’ve just described, and we’ll unpack that a little bit more in a bit. They get the public comment. They come up with the proposed rules, it goes to the Standing Committee, which then reviews it — I’m going to say de novo, although that’s not a particular standard of review — and then makes a recommendation one more level within the administration of the courts of the United States, the Judicial Conference. Can you give us a little bit more of a feel for what the Standing Committee’s role is when they review the underlying rule of practice and procedure committee’s work? They certainly don’t rubber stamp it. I know that, and you know it as well, although our audience may not. And then what happens at the Judicial Conference in those two steps?
Judge Robin L. Rosenberg: Sure. So the Standing Committee is one of many committees that the Judicial Conference oversees. The Standing Committee receives proposed rules or amendments from the various committees as you noted, Paul, the civil rules, evidence, bankruptcy, criminal, and if the proposed rule or amendment is approved by the Standing Committee, it then goes to the Judicial Conference for approval. And I’ll answer your question with respect to the Judicial Conference in a moment. But at the Standing Committee meetings, which meet like the advisory committee meetings twice a year, the chairs of the advisory committees are in attendance at the Standing Committee. So those chairs are able to hear and see exactly the nature of the discussion and the deliberations, and importantly are there to answer questions from the members of the Standing Committee as to the matters that are before the Standing Committee relating to that individual chair’s advisory committee. It is very much a dialogue. It is very much a question and answer session. It is very much a session in which the chair is able to get meaningful feedback.
In other words, matters go to the Standing Committee that arise out of the advisory committees that are not necessarily before the Standing Committee at that time for a vote up or down. When an issue is being deliberated in a committee, it will be included as part of the agenda materials in the Standing Committee agenda so that the chair of the advisory committee has the benefit of hearing the questions and concerns and points that members of the Standing Committee bring to bear on those issues. And the chair then can bring that back to the advisory committee. So when the advisory committee further considers an issue and ultimately is ready to bring the matter before the Standing Committee for a vote up or down, there should be very little surprise at that point because of the ongoing back and forth and interactive processes, if you will.
And I might add that the chair of the Standing Committee often will attend the advisory committee meetings. So that person as well is very aware of what is going on in the advisory committees. So we don’t operate in vacuums, so to speak. Now the Judicial Conference is a national policymaking body for the federal courts and the Chief Justice of the Supreme Court is the presiding officer. There are many committees that focus on a variety of topics including federal rules of practice and procedure, otherwise as we’ve discussed, known as the Standing Committee. There’s court administration, and there’s other matters that are requested by the Chief Justice, Congress or other officials or government bodies. And, of course, the further materials about the role of the Judicial Conference can be found on the Judicial Conference’s website. 28 USC Section 2073(a)(2) provides for committees to be appointed and for them to be comprised of individuals in a variety of roles.
So, it’s important to have the perspectives of both judges at the trial and appellate levels as well as attorneys who represent different interests and types of clients. Now, the committees and subcommittees can be large or small depending on the rule involved, and they can last a long time depending on the issue. So for example, a recently proposed new rule out of the Civil Rules Committee, Rule 16.1, governs MDL proceedings. So this subcommittee on MDL was formed back in 2017 to determine whether a rule was necessary, and if so, to draft it. And because it’s been such a long Standing Committee, it has had several subcommittee chairs. It’s been a longstanding subcommittee and the membership does turnover.
This is just an example of the nature of the work that goes into conceiving, vetting, drafting amendments, new rules, or even considering and making recommendations that even though an idea or issue may be a valid one, it either isn’t appropriate for rulemaking or the other threshold question that generally is asked at our meetings is, number one, is this subject to rulemaking, but secondly, if we were to consider a rule or an amendment, are we doing no harm? We don’t want to inject something into the system that actually will have a harmful effect on the state of the rules as they exist now.
Paul W. Grimm: I think that our audience would be impressed if they had a mental picture of just how comprehensive these agenda materials are for each of these meetings. I remember spending many a weekend before a Civil Rules Advisory Committee going through a multiple 100-page PDF that had all of these proposals and all of the comments. And I think that our audience should be reassured to know how carefully it is reviewed, which enables the Standing Committee to do the review that it does. And I conceive of the Judicial Conference as the board of directors of the entire federal court system, and they’re one more level above that. I think that what I’d like to do now is to talk about the granular process by which these proposed rules are drafted and then reviewed. You mentioned this a moment ago, and the phrase you used was “painstaking and meticulous,” and I think that that captures it perfectly.
But each of these committees have one or more very distinguished professors who are the reporters. And from my time in the Civil Rules Committee, it was the legendary Ed Cooper and the incomparable Rick Marcus. And Rick, I think, is still there. I don’t know if Ed has retired, but it doesn’t take very long in the presence of these great minds to get a real appreciation of the skill that’s required to draft a rule so that it’s short enough to be digested, clear enough not to be misinterpreted, and enduring enough to not have to be changed every other year. Can you give us an understanding, appreciation for who these reporters are and how they operate and just a sense of appreciation for the work that they do?
Judge Robin L. Rosenberg: Well, let me address that question, but I just want to piggyback on your last comment about your own experience on the Civil Rules Committee and the hefty work involved in preparing the agenda materials, which I think will dovetail nicely into my discussion of the reporters, but on the receiving end as a committee chair or a member of the committee having to read it. So we have a meeting on Tuesday of the Civil Rules Committee actually following a set of hearings on Monday for the proposed rules that have been out for comment. Now our listeners are well aware of that process since we’ve just discussed it, but we have back-to-back sessions Monday and Tuesday in the agenda book that was prepared for us is 570 pages long, and believe it or not, there’s only one action item in the agenda book, and that’s to approve the minutes from the last meeting.
Everything else is informational. It’s not to say it’s not important, but hopefully that will give our listeners some idea of just the magnitude of the work that goes into preparing the materials and what is required to digest the materials, to be able to debate the materials, and to be able to ascertain where we go from here with those materials. Now, those reporters are among the people who prepare those agenda materials as well as do many things in between our meetings each year, two meetings a year. Who are the reporters? Well, they’re invaluable to the committees. Some of them have been involved in the rulemaking process for decades. That is Ed Cooper, Rick Marcus. There is nothing you can discuss in a meeting about anything that has happened in the rules world over the past however-many decades that they don’t recall, that they can’t point you to exactly where it arose [and] what happened over the course of the past decades. They are walking encyclopedias of knowledge that proves invaluable to the work that we do.
They are, in addition, leading experts in their fields. They research the relevant law, they draft memoranda, they analyze suggested rule changes, they develop proposed drafts of rules for committee consideration, they review and summarize public comments on proposed amendments, and they generate committee notes and other materials documenting the rules committee work. They serve a vitally important role for our committees. And again, we have the two committees’ meetings each year, but the advisory committees are, as I indicated earlier, the chairs attend the Standing Committees. And so the reporters for the advisory committees also come to the Standing Committee meetings so they know what’s going on there. So they can help report back in the agenda materials to the advisory committee. In addition, in between these two committee meetings that we have every year, we have subcommittee meetings regularly.
At any given time, we might have, oh, I don’t know, three or four or five subcommittees, at least I can speak within the Civil Rules Committee. And they are often meeting regularly. They’re meeting amongst themselves; they’re meeting with lawyers; they’re meeting with judges. Each and every time we meet, the reporters are there; they’re taking notes; they’re raising ideas; they’re asking questions, and they’re preparing materials to then be reported to the full committee when the full committee meets. That’s who our esteemed reporters are. And I would be remiss if I did not mention in addition to Ed Cooper, who by the way serves in an emeritus capacity for the civil rules, we are so fortunate to still have him working with us. When he took an emeritus status, Rick Marcus became our lead reporter and Professor Andrew Bradt is now the associate reporter for the Civil Rules.
Paul W. Grimm: Another remarkable academic as well. What I can remember being astonished by is just how Ed and Rick and now Andrew as well can listen to a very detailed, complicated discussion among a lot of lawyers and judges with a sort of a sense that there should be a proposed new rule drafted to study. And within what seems to be a remarkably short period of time, the reporters have crafted a rule that captured the essence of what the goal was with this very spare, clear, focused, consistent language that is necessary for the precision there. And I think that until you’ve actually seen it done and gone from the general to the specific and see how it actually plays out, you don’t get an appreciation for the skill involved with this. And they are every bit as impressive as you say. I want to sort of shift our focus now, not on those who are within the kitchen making the recipes for the new rules, but the consuming individuals.
We know that there are lawyers, practitioners who are there and that they are a broad cross section of the bar to make sure that we have all important voices heard. But these meetings are also open to the public and section 2073(c)(1)of the rules Enabling Act requires that. And I think many people don’t really appreciate just how well attended and followed they are. And in addition to the public meeting, all these agenda books and the notes and the minutes are all online. And it’s an unusual circumstance when a significant rule change is being proposed that you don’t get a tremendous amount of feedback from the public, which I think is part of the strength. Could you share with us how that process works and how the public is involved in these meetings?
Judge Robin L. Rosenberg: At our meetings, whether they’re the committee meetings, the advisory meetings, the standing meetings, committee meetings, we have a big table, and all of the committee members are seated around the table. Typically, at least based on my experience with the Standing Committee and the civil rules, I think the other advisory committees work the same way. One meeting of the two each year is held in Washington, D.C. and another meeting is held in another geographical area that changes each year in order to be equally accessible to members of the public. So we might be in the South one year and we might be out West another year Southwest another year. So that second meeting generally is moving around. And again, that is with the idea that different members of the public can have easier access to certain locations on a rotating basis. And in the room along the side and in the back are chairs where members of the public can come and sit and listen and watch the deliberations and debate and discussion and votes that occur within these committee meetings.
Now, in addition, if a person does not want to or cannot attend a meeting, there are minutes that are kept for each committee meeting. The US Court’s website has a section dedicated to the Judicial Conference and its committees. The website posts the dates and the locations of the committee meetings. And this information is also available in the federal register. As I indicated, members of the public can attend the meetings. The reporters prepare the minutes of the meetings, and they’re made available in agenda materials prepared for each committee meeting. And the agenda books are posted online approximately two weeks before a meeting, and there is a website link for that as well. In addition, transcripts of all public hearings are also available on the US Court website. So I mentioned to you, Paul, that this Monday, coincidentally in Washington, D.C. there will be public hearings on the new proposed MDL Rule 16.1 and Rules 16 and 26 relating to the privilege log issue. They will be live hearings, but there will also be a transcript made for those who cannot attend. And there is also a link that people can appear virtually to listen and observe the meeting. In addition to the one in-person meeting that is currently scheduled in Washington, D.C. for these three rules, proposed rule amendments, there will be two more hearings scheduled. Currently, they’re scheduled to be remote, but if they were in person, they likely would’ve been in different geographical areas. So not only are the meetings scheduled in different areas of the country, but if there are in-person hearings on proposed rules, those hearings as well are often in different geographical areas in addition to Washington, D.C, — all with the intention of making it an open, transparent and available and accessible process that is not cloaked in mystery or ambiguity, all intended to give people an opportunity to see what’s going on and to be heard.
So, I think, we have about 22 witnesses who are appearing at Monday’s hearing. They already have had an opportunity to submit a comment, which many of them have. And in addition, all of them who are going to be testifying have been required to provide a summary of what they’re going to be testifying to. And that is all available publicly now.
Paul W. Grimm: And I think that that is one of the things that impressed me the most being a participant in the process for the six years that I was, is that it’s really the strength of the process in that all of the practitioners and the members of the public who will be affected by these rules that are so essential to allowing the actual work of the trial courts and the appellate courts and the bankruptcy courts to move forward, there are no surprises. There’s no “rabbit pulled out of a hat” and suddenly the world has changed. It is deliberate, and it is public. And I think that while it’s a lot of work, it is work well done because it’s the strength, and it’s why I think the public can have faith in these rules when they come out, even if they might have wished the rule would say something more or something less that it was not done in a knee-jerk fashion, but with a great deal of oversight and deliberation.
I want to turn now to my, what I least appreciated, and I will confess now that I’m no longer an active practice that when I was in practice probably didn’t really pay attention to like I wish I had are the explanatory notes. So section 2073(d) says that in order to make a new rule or to change an existing rule, the committee will come up with a proposal. We’ve discussed that, as well, as an explanatory note on the rule and the written report of the committee’s action. These are sometimes referred to as the advisory committee notes or the committee notes. I found them to be absolutely essential once I realized their importance because the goal is to have the rules be very succinct. The committee note, the explanatory note, it’s the background. It’s the where, what, why, and how. It oftentimes refers to earlier versions of the rule, problems that led to the new rule. But there’s a delicate line between what is the rule and what is the explanatory note. And sometimes people think the explanatory note is the rule, but it’s not.
So could you talk about the importance of the explanatory rule, but as well as its limitations as to what it can do as compared with the text of the rule itself?
Judge Robin L. Rosenberg: So, explanatory notes are designed to do just that, to explain the purpose and the intent of the rules and the amendments. As we know, some rules are straightforward and others require explanations. If a rule is amended, it can be helpful to practitioners to know the reason for the amendment. The note can provide additional information and make points that are hard to get across in just the rule text and help practitioners and judges interpret the rule and understand it better. The committee does spend a lot of time on drafting the notes, making sure that they’re consistent with the text of the rule and considering the impact that we know the note will have. The Advisory Committee members and Standing Committee members pay very careful attention to what are in these notes, but they are notes.
So, the first stop is the rule. The rule is what governs and the note is what explains. Now, I think it’s fair to say, some people may think, well, why doesn’t that note say more?
And I suppose there is always an argument that you can say more and explain more, but sometimes when you say more, it can perhaps confuse other people. So the idea is not to confuse. The idea is not to do any harm. The idea is not for the explanatory note to get ahead of the rule or to be in any way intention with the rule. So it’s actually a very nuanced, delicate process in trying to be helpful, but not saying too much. I’m reminded as I’m saying this of the analogy of how you respond to a juror note in a trial. The jurors are so desperately trying to understand the jury instructions, which are, we know what governs their deliberations, but they need a little more explanation.
And on the one hand, you would always like to make sure you give them enough so that they understand, but you can’t give them too much, that could be prejudicial to one side or the other, or maybe you might say something that could be construed as being in tension with the jury instruction. So the best way to think of it is they absolutely should be read and lawyers have much to gain from the explanatory notes. But you begin with the rule.
Paul W. Grimm: I think it’s a wonderful analogy that certainly every trial lawyer will appreciate the text of the information, whether it’s a jury instruction or a rule and then the explanation. And I think that the takeaway point that I would like to stress for our listeners is just how carefully the explanatory note is considered and crafted so that it makes that balance perfectly. It helps you understand why the rule has been adopted or changed, but it doesn’t supplant the rule. And that is a form of art and it’s a credit that the care is taken to do that. And my advice to everybody is read the rule and then read the explanatory note.
I want to talk about the calendar that governs this. We have an image in our minds now about the effort that goes into it from the Committee of Practice and Procedure to the Standing Committee to the Judicial Conference. But that’s by no means the end of the process. It also has to go to the Supreme Court and then the Congress and the Rules Enabling Act has a chronology for that. Section 2074 sets out that chronology. And that was a surprise to me when I first got there. So could you help us understand what that chronology is, the deadlines that have to be met, and then the approval and the way in which each of these levels of approval operates and then passes it up the chain to the next level?
Judge Robin L. Rosenberg: Well, let me say that it’s most important to get the rule or the amendment right, even if it’s a time-consuming and lengthy process. The layers do take time, but they ensure that many different people and many experts in the law and rules have an opportunity to review, discuss, revise, and approve a proposed rule. And of course, the public also gets its opportunity. And once the rule’s in place, it’s hard to change. So we want to get it right. By way of example, I mentioned the Advisory Civil Rules Committee work most recently with respect to the proposed MDL Rule 16.1. If you recall earlier in our discussion, I mentioned that the subcommittee to look into whether a proposed rule should be drafted began back in 2017, 2018. It has only been in 2023 that the Advisory Committee and the Standing Committee ultimately voted to approve a rule to go out for public comment and hearing.
So we began in 2017, fast-forward, it’s 2023. Now this is a little bit of an anomaly because this is a very complex rule. I understand that the subcommittee was in formation much longer than perhaps most subcommittees, but I’m just using it for illustrative purposes. So now we’re in 2023, and we will be conducting hearings in 2023 and in 2024.
So I’m assuming a scenario where everything goes according to plan, if you will. From the Standing Committee, it would then go to the Judicial Conference at its next regularly scheduled meeting. And again, remember, these committees only meet and the conference meets twice a year. So you’ve got to line up with the committee meetings. Then, if it passes the Judicial Conference, it goes to the Supreme Court and then they have their time period. And if it passes the Supreme Court, it goes to Congress. The soonest that this MDL rule that began somewhere back in 2017 and voted on by the Rules Committee in 2023, if all goes according to plan and there’s no setbacks, and when I say plan, I don’t mean with a predetermined outcome. I mean it continues in its current course. It’ll go into effect in December of 2025. So that is how long the process takes.
Paul W. Grimm: It’s interesting you say that I’m smiling as I’m listening to it and I’m having flashbacks to my own time where we started in 2009 with some proposed ideas to change the rules of civil procedure dealing with electronic discovery, and they became final on December 1st of 2015. So that time is by no means unusual. Two competing buzz phrases come to my mind after having heard what you said. The first thing is, I think, we could amend that old saying that two things that are complicated to watch is the making of sausage and legislation. I think you could probably add rules of practice and procedure. And the other way I would look at it is it’s much more important to get it right than it is to get it fast. And I think that that is something that’s important.
So that our audience has an appreciation for this, the deadlines apply even to the Supreme Court. If the Standing Committee and the Judicial Conference rule by the end of a year and get it to the Supreme Court and the Supreme Court has until May 1st to get their action and recommendation to Congress, which then has until December 1st to take action to stop or amend the process. And if they don’t do that, then it becomes law. So everyone from the lawyers on the committee all the way up to the United States Supreme Court has to keep their eye on the clock when this process goes forward. And while I think it’s a layered and laborious process, I think it’s also the strength of the entire system. Do you have any comments on that before I go to our final wrap up questions?
Judge Robin L. Rosenberg: No, I completely agree.
Paul W. Grimm: I want to talk about things that we wish that sometimes that the lawyers and the public would know. You could tell from our conversation today that this is a very deliberate, complex, and challenging process, but it’s very important we hear lawyers talking about the rules and arguing them. And as judges, we are called to interpret them even though there’s been all that painstaking effort to make them clear. If you could give any advice to our listening audience, the lawyers and judges and the public that you wish more of them knew about the rulemaking process of the rules of practice and procedure or the rules themselves that you could share with us?
Judge Robin L. Rosenberg: Well, I think I would put myself in the same category as you described, Paul, when you were a practicing lawyer, and quite frankly, maybe even early on in your judicial career, which is that we sometimes all just stay in our lanes and do what we do and what is immediately in front of us. And most of us have a lot on our plate, and that keeps us busy. And it certainly is meaningful and important. But I think with anything in life — and particularly when we’re talking about the law and the system that impacts all of us — those of us within the judicial system, practitioners who operate within the system, that it’s important that we understand the contours and context in which we all operate. We hear a lot about what’s happening in Congress — maybe that’s because our media outlets focus us on that, and so we’re exposed to it more readily and the legislative process. But I don’t think even those of us within the system know as much or focus as much on the judicial process.
And part of that process is rulemaking, and it sounds scary and esoteric and geez, somebody else maybe must be doing that. How do these rules just appear in our books? But if we start to peel away and ask those questions, we realize that first of all, there’s a lot of information on the US Court website that explains all of this. Lawyers and judges can participate in the process. I just spent a lot of time describing how all of these committees are comprised of judges and lawyers. It doesn’t mean you’re going to get on a committee right away. In fact, it could take a couple of years. But within the judicial process, many of my colleagues weren’t aware of this, but a survey goes out every year. Now we get a lot of emails, I know.
So I’ve given thought to how might we make it a little bit clearer to people that they have opportunities, at least within the judicial system, to serve on these committees by filling out these surveys. And similarly with lawyers to be able to make it known to members of these committees and to ultimately the Chief Justice that they’re interested in serving. So, I think, it’s a matter of us wanting to know more about the context in which we all are working and wanting to participate. I think we all look for meaningful ways to contribute. Contributing in the rulemaking process is a meaningful endeavor, and it’s one that is very collegial. It is an opportunity for judges to come together, for lawyers to come together who don’t necessarily operate in the same space and to share ideas.
And I think maybe importantly, I’d like to end by saying that it is reaffirming and reassuring, particularly in times where we might not always feel that way about our systems of government, that this process works well. It is deliberate. It can be slow moving, but it is precise and it is with all of the right intentions to make the system work better for those who operate within it. So I feel honored to be a part of it. It’s one of the best things that’s happened to me as a judge, and I would encourage practitioners and judges and other interested parties alike to learn about it and to find an appropriate role that you may be able to apply in the rulemaking process.
Paul W. Grimm: I think from having listened to what you’ve had to share with us today, that we can all be very happy that you and your colleagues are paying such careful attention to this. It reminds me that we believe that our nation is founded upon the importance of the rule of law, which is only possible when the public has faith in the process by which laws are created and judgments are rendered. This process of transparency and deliberation and painstaking attention to detail, allowing all thoughts to be heard and approval by not only the courts themselves, but by Congress, the elected members of our government, is something that lives up to the obligation that the rules of practice and procedure that are used to decide the conflicts of our citizens that are brought to the courts to resolve will be fair — procedurally and substantively. I think that that this is an example of how the rule of law can protect the public. And I’d like to thank you so much for sharing your thoughts today, and we look forward to getting them posted so that a wider audience can hear them as well.
Thank you so much, Judge Rosenberg, for spending time with us today.
Judge Robin L. Rosenberg: Oh, you’re welcome. It’s been my pleasure. I’ve enjoyed it. Thank you.