The Rules Rule

You were appointed to the Federal Civil Rules Advisory Committee by Chief Justice John Roberts in 2017. How did that come about?

I don’t know about the background machinations, but right before the 2006 discovery amendments I started attending both the Civil Rules Advisory Committee meetings as well as the Standing Committee meetings. Over time, I became a formal observer of both committees. On my own or my firm’s dime, I would make the trip and participate as an active listener. Oftentimes, I would have the opportunity to be participatory in some of that discussion—sharing real-life experiences from the trenches. I hope that my formal observance and active participation over many years, along with my good work as a practitioner and my professional demeanor, led Chief Justice Roberts to appoint me to this important role. 

You talked about traveling there. Where does the committee meet? I assume D.C.

There are two meetings of the Civil Rules Advisory Committee per year. Absent COVID pandemic circumstances, there’s a meeting in the fall in Washington, D.C., at the Thurgood Marshall Federal Judiciary Building, next to Union Station. There is also a meeting, usually in April, somewhere around the country. 

Are there prereqs for attending?

The agenda for every meeting is posted publicly on the U.S. Courts website in advance of the meeting, so anybody can see what is going to be discussed. If you would like to attend, you must put in a written request as a matter of security. I have never known anybody to be denied the opportunity. 

What types of legal professionals make up the committee?

Many of the members are obviously judges. You also have some academics, and then practitioners like me.

Is the process all out in the open or are there private discussions too?

Everything for the committee meeting and the agenda is open forum. However, for each topic that’s being assessed, subcommittees are created to address a particular rule under consideration for possible amendment, and the members of those subcommittees are exclusively people from the committee itself. These subcommittees meet independently and ultimately put in a report to the Civil Rules Advisory Committee in anticipation of its formal spring or fall meeting. 

One of the very positive developments that has occurred in the last 10 years is that when significant rules are being considered, the Rules Committee often aims to create opportunities to interact with and hear from practitioners who might not have come to the formal meeting. For example, a mini-conference might be scheduled with members of the American Association for Justice, Lawyers for Civil Justice or the National Employment Lawyers Association. Or a mini-conference might be set by special invitation with practitioners known to practice in a particular area. Is a particular rule or aspect of procedural practice broken? Would this rule be helpful? Sometimes a proposal might be deemed helpful to one side but not the other. Or the judges might say, “We’re not hearing about that,” and then the practitioners say, “Right, because we’re dealing with it on the ground, and we try to avoid bringing disputes to you. But this is hampering litigation.”

Do the different types of committee members—academics, judges, practitioners—tend to disagree, or is it not that simple?

Not that simple. The expectation, when you put your hat on as a committee member, is you’re leaving your briefcase at the door. 

I am a rules person. I like having a map, a path. The best lawyers are the ones who really understand the rules—not just what is the law, but how do the rules work so you can apply the law and present the law applicable to your facts. 

I hope you hear my enthusiasm. When I got the call to serve, I was floored. I have a busy schedule, but I move heaven and earth to make sure that I can be as participatory in every aspect of service for this committee as I can. My appointment and service are a personal career highlight.