Meet the New Rules, (Not the) Same as the Old Rules
The restyled Arizona Rules of Civil Procedure seek
to promote access to the courts
and the resolution of cases without unnecessary cost, delay, or complexity.
spring of 2014, Chief Justice Scott Bales (then, Vice Chief Justice) asked if I
would be interested in co-chairing, with David Rosenbaum (Osborn Maledon), a project to restyle the Arizona Rules of
Civil Procedure (the “Civil Rules”). The Chief Justice indicated that, in
furtherance of the Court’s Access to Justice Strategic Agenda, efforts were
underway to restyle each of Arizona’s major rule sets. As Arizona’s Rules of
Evidence and Rules of Civil Appellate Procedure were already revised, the Court
was turning its eye toward the Civil Rules, with the Criminal Rules and Family
Law Rules to follow.
the Chief Justice what his expectations were with respect to the scope and
timing of the project. He said that the primary objective was to rewrite the
Civil Rules to make them easier to read and understand, but that we should not
shy away from opportunities for procedural innovation. He further explained that
the group would be convened sometime in late 2014, and that a petition should be
filed by January 10, 2016. Privately questioning whether this deadline could be
met, I told him I would like to be part of the effort and conveyed my thoughts
as to how the project might best be approached. Then, the realization of what
the coming years would entail sank in.
ambitious the undertaking, a number of factors worked in its favor: (1) prior
restyling initiatives and rules projects had revealed a deep pool of hardworking
and knowledgeable lawyers and judges in Arizona likely to lend their talents to
the task; and (2) restyled Federal Rules of Civil Procedure had been adopted in
2007, furnishing a solid foundation upon to which build. Working against it,
Arizona adopted its Civil Rules in 1955, and no effort had been undertaken since
then to update them in any uniform fashion. Instead, Arizona had relied upon a
patchwork of piecemeal amendments which ensued over the sixty years that
this backdrop, Chief Justice Bales entered Administrative Order No. 2014-116 on
November 24, 2014. The Order established the Court’s Task Force on the Arizona
Rules of Civil Procedure, Co-Chaired by Mr. Rosenbaum and me, and having as its
members nine attorneys, three Superior Court judges, an Arizona Court of Appeals
judge, a law professor, and a Clerk of the Superior Court. The Task Force was
staffed by Mark Meltzer, of the Administrative Office of the Court, and John
Rogers, one of the Court’s Staff Attorneys.
Order described the Task Force’s mission as follows:
The Task Force shall review the Arizona
Rules of Civil Procedure to identify possible changes to conform to modern
usage, to clarify and simplify language, and to avoid unintended variation from
language in counterpart federal rules. These changes should promote access to
the courts and the resolution of cases without unnecessary cost, delay, or
complexity. The Task Force shall seek input from various interested persons and
entities with the goal of submitting a rules petition by January 2016 with
respect to any proposed rule changes.
Task Force constituted, we divided ourselves into four workgroups and assigned a
segment of the Civil Rules to each. We also adopted drafting guidelines designed
to promote our charge from the Court and ensure uniformity of style and voice
across the workgroups. The following are several of the more significant
guidelines we adopted:
The rules should be written to promote fairness and clarity, and to promote the
ability of all litigants, including those representing themselves, to access the
Where no good reason existed to depart from the 2007 stylistic revisions to a
counterpart federal rule, adopt the restyled federal wording verbatim.
If the Arizona rule did not have a counterpart federal, revise the Arizona rule
consistent with Bryan Garner’s Guidelines for Drafting and Editing Court
Rules (“Garner’s Guidelines”).
Where sound policy reasons supported a difference between an Arizona rule and a
counterpart federal rule, maintain the difference but nevertheless revise the
Arizona rule consistent with Garner’s Guidelines.
Revise and restructure the rules, and adopt headings and subheadings that are
consistent with Garner’s Guidelines, and which enhance clarity,
readability, and ease of usage.
Change all references to “shall” in the current rules to either “must,” “should,” “may,” “will” or “is/are,” as the context dictates, with the exception
of Rule 56(a), which retains the use of “shall.”
Delete rule comments where they serve no further purpose. However, if some
portion of a comment is necessary to understand a rule, add language to the rule
to capture the substance of the comment.
If an Arizona Rule has recently been the subject of substantive revision, do not
revisit the substance.
Look for and eliminate archaic practices and traps for the unwary if they serve
no identifiable purpose.
Modernize the rules concerning the disclosure and discovery of
electronically-stored information to meet the realities of identifying,
handling, and producing the information in a rational and cost-effective
Over the course of 2015, the Task
Force held monthly public meetings. Its workgroups met during intervals between
these meetings to move their work product forward. Each rule was dissected,
examined, and redrafted for consideration and approval by the full Task Force.
As of January 2016, the Task Force had met sixteen times and the workgroups had
met more than forty times. Taking into account drafting, research, and
preparation that preceded each meeting, this collective effort involved
thousands of hours of time.
In September of 2015, the Task Force
made a “vetting draft” of the proposed rules available to every member of the
Arizona Bar and Judiciary, and various identified stakeholder groups, and
invited pre-petition comments. Between the release of the vetting draft and
January of 2016, the Task Force and its workgroups continued to meet to
fine-tune the proposed new rules and consider the comments received. Also during
this period, the State Bar’s Civil Practice and Procedure Committee formed
subcommittees to study and critique the vetting draft.
The Task Force filed its Petition on
January 7, 2016. A staggered comment period with two rounds of comments followed
and, after considering each round of comments, the Task Force filed first an
Amended Petition, and later a Reply.
On September 2, 2016, the Court
entered its Order on the Task Force’s Petition, adopting the new Civil Rules
effective January 1, 2017, and bringing to a close the work of the Task Force
and the marathon endeavor we embarked upon less than two years earlier. Notably,
the Court also adopted a disposition table to aid readers in finding rules and
subparts that had been moved or otherwise renumbered, and conforming amendments
to various rules in other rule sets which reference the Civil Rules.
As is the case with any undertaking
of this magnitude, I am certain mistakes have been made that will reveal
themselves over time and require correction. Yet I am equally confident that
Arizona’s restyled Civil Rules represent a significant achievement that will
improve the functioning of Arizona’s civil justice system and eliminate many
barriers to justice faced by those who litigate in our courts.
In addition to co-chairing the Supreme Court’s Task Force on the Arizona Rules of Civil Procedure, Bill Klain is a member of the Court’s Advisory Committee on the Rules of Evidence and a former Chair and current member of the State Bar’s Civil Practice and Procedure Committee.