The Federal Rule of Civil Procedure that Was Changed by Accident: A Lesson in the Perils of Stylistic Revision

Abstract

In recent years, the Federal Rules of Civil Procedure underwent a complete stylistic revision, ostensibly for the sole purpose of promoting their clarity. Those involved in the process insisted that they took heroic precautions to ensure that the changes would not result in any unintended changes in the operation of the rules. Despite those assurances, however, Rule 6 was in fact amended in a way that will necessarily and unintentionally alter the way in which certain important deadlines must now be calculated, which will necessarily lead to considerable confusion for courts and litigants and results that are difficult to rationalize, unless perhaps the courts can be persuaded to disregard the plain language of the amended rule. This article explains the nature of that change, and examines the thoroughly predictable arguments of statutory construction that will be made on both sides of this question when this error inevitably turns into a problem in an actual case.

Keywords: civil procedure, Rule 6, stylistic revision

JEL Classification: Litigation Process