Utah is considering a major revision of the Rules of Civil Procedure. The Committee on the Rules of Civil Procedure refers to the proposed changes as "simplified rules of discovery", at least when talking to the Supreme Court about the proposals. The proposals require a flow chart to be described, which the Committee kindly includes in the comments to the proposed rules. But, it is hard to take someone seriously as proposing a simplification when the new (unlike the old) rules require a flow chart to make sense. I guess I am stuck in the my litigation habits.
So, the first in an intermittent set of comments. The changes to Rule 8 -- new complaints will need to include facts and legal theory explaining the claims to relief. But the same standard applies for determining whether a claims has been stated. Twombly is rejected as an inappropriate "heightened pleading" standard. (I guess the Committee does not believe with the federal Courts of Appeal or Supreme Court which have said Twombly does not impose a heightened pleading standard.) Alright, the same old Conley standard applies -- so what does the new requirement require? What kinds of facts have to be included and what sort of theory? After all, if the complaint does not have to be plausible (Twombly rejected) will any set of facts do the trick? What is the point, in other words, of the change in language, aside from encouraging motion practice and providing a new group of cases for the courts of appeal?
Or consider the change in Rule 1 which makes all the changes apply to all cases filed after adoption or pending when adopted. The rules of discovery change in the middle of the case, unless someone prevails on the court that imposing the new rules would be unjust or not be feasible. Well, more motions and more delays as the motions get played out.
Next time, a look at the basis for the changes. Empirical evidence that isn't.
Twombly is rejected as an inappropriate "heightened pleading" standard.
Posted by: vibram five fingers | May 26, 2011 at 05:45 AM