Proposals Aim to Modernize Certain Appellate, Evidence Rules

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By Melissa Heelan Stanzione and Bernie Pazanowski

Proposed amendments to federal appellate and evidentiary rules aim to modernize them and make them more user-friendly.

The amendments will be open for public comment until Feb. 15, 2018, according to the Administrative Office of the U.S. Courts. The Judicial Conference Committee on Rules of Practice and Procedure approved publication of the proposed amendments.

Proposals for Federal Rules of Appellate Procedure 3 and 13, which address how to serve notice of an appeal, basically would “change the word ‘mail’ to ‘send.’ This includes any permissible form of transmission,” Kendyl T. Hanks, a trial litigator and appellate advocate at Greenberg Traurig, Austin, told Bloomberg BNA in an email.

The proposals would conform those rules to earlier proposed revisions to Rule 25, which would generally require electronic filing for all represented persons, Hanks said.

Revisions to Rule 25 were proposed in August 2016 but still haven’t been adopted, she said.

The movement toward uniform electronic filing is great for appellate practitioners and clients because it’s more efficient and less expensive, Hanks said.

Disclosure Statements

The draft proposed amendment to FRAP 26.1, which addresses disclosure requirements, is probably more interesting for what it doesn’t propose, Hanks said.

Disclosure requirements help judges in making a determination of whether they have any interests in any of a party’s related corporate entities that would disqualify them from hearing an appeal.

The current proposals for FRAP 26.1, which addresses disclosure requirements, are “fairly limited” and “wouldn’t change much,” Hanks said.

Proposed changes would require disclosures regarding “organizational victims” in criminal cases, and certain disclosures about debtors not identified in appellate case captions.

Rules 28 and 32 would have conforming minor changes, she said.

The Committee on Rules of Practice and Procedure of the Judicial Conference, which prepared the preliminary drafts of the amendments, considered whether they should also propose broadening Rule 26.1 but the disclosure requirements for regular civil appeals remain unchanged, she said. Many federal courts of appeals have their own broader disclosure rules, Hanks said.

Under Fifth Circuit Rule 28.2.1, parties “must include at their beginning of their briefs a ‘certificate of interested persons’ that discloses basically any person or entity with a financial interest in the outcome of the litigation,” she said.

This full disclosure can be burdensome but “helps avoid any appearance of conflict on the part of the assigned panel,” Hanks said.

What this means for appellate practitioners is that they will need to check local rules “in every case to make sure they comply with potentially broader disclosure requirements,” Hanks said.

Hearsay Exception Proposal

The proposed amendments to Federal Rule of Evidence 807’s residual exception to the hearsay rule are “very practical,” Gregory P. Joseph, an attorney with Joseph Hage Aaronson LLP, told Bloomberg BNA.

They suggest eliminating the requirement that residual hearsay evidence be equivalent to material evidence. This would allow courts to consider corroborating evidence when determining the trustworthiness of the hearsay, and eliminating the requirement that residual hearsay must be evidence of a material fact and its admission will serve the interests of justice.

These proposals “make the rule more user-friendly and eliminate circuit splits interpreting the present version,” Joseph said.

Furthermore, the amended rule doesn’t “swallow the hearsay rule,” he said.

The Advisory Committee “tweaked” the rule but it still requires that "(i) no other hearsay exception applies, (ii) the court consider any corroboration, and (iii) the evidence must be more probative on the point than any other available evidence.” Joseph said.

To contact the reporters on this story: Melissa Heelan Stanzione in Washington at mstanzione@bna.com; Bernie Pazanowski in Washington at bpazanowski@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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