APPROVES CONSOLIDATION

Transcription

1 ARIZONA SUPREME APPROVES CONSOLIDATION In October, the Arizona Supreme Court issued a long-awaited Order that effects the most extensive structural changes to Arizona civil procedural rules since the initial adoption of the Arizona Rules of Civil Procedure in The Order with its accompanying Appendices is on its face an intimidating document; it is more than 80 pages in length, single-spaced. As this article explains, however, the changes being made are predominantly structural rather than substantive, and they will simplify matters significantly for those of us engaged in a civil litigation practice. 26 ARIZONA ATTORNEY DECEMBER 2000

2 COURT CIVIL RULES BY DANIEL J. MCAULIFFE HE ISSUANCE OF the Consolidation Order represents the culmination of what has come to be known informally as the Civil Rules Consolidation Project, which has been under way for almost three years. The idea for this project originated with the Civil Study Committee of the Maricopa County Superior Court, and specifically with the judges of the Civil Department who at the time were members of that committee. Those judges were concerned about the proliferation of civil rules that Arizona witnessed in the 1980s, often as an ad hoc response to problems with the processing of civil cases. This proliferation had produced several separate bodies of rules that, in the final analysis, made the process of finding answers to even the simplest procedural questions far more difficult than it needed to be. The problem raised was a very real one. The procedural rules of general applicability were the Arizona Rules of Civil Procedure, adopted in 1955 and generally modeled on the Federal Rules of Civil Procedure. To accommodate procedures unique to Arizona practice, those rules were supplemented by the Uniform Rules of Practice of the Superior Court, to which practitioners had to turn to determine what procedures applied to basic tasks, such as filing civil motions, securing a trial setting, conducting pretrial conferences and preparing pretrial statements. Moreover, the answers found were at times confusing and not necessarily consistent with the guidance furnished by the Arizona Rules of Civil Procedure (for example, the Arizona Rules of Civil Procedure and the Uniform Rules of Practice contained, between them, at least six provisions dealing with the subject of pretrial conferences, with requirements that often could not be reconciled). With the advent of the expansion of mandatory court-annexed arbitration came yet another set of rules for practitioners the Uniform Rules of Procedure for Arbitration. Finally, after 1992, those lawyers prosecuting or defending medical malpractice cases had yet another set of rules with which to grapple the Uniform Rules of Practice for Medical Malpractice Cases. Lawyers in such cases not only had to consult and interpret that set of rules, but they also had to determine which of those rules supplanted arguably inconsistent provisions of the Arizona Rules of Civil Procedure not always an easy task. In the judgment of many, the net effect of all this was to make the process of answering even the most basic procedural questions far more complicated and, at times, frustrating than was necessary. The Civil Study Committee determined that the situation should be rectified and that it was possible to do so. Because this would require changes to procedural rules of statewide application, the baton was passed to the State Bar s Civil Practice and Procedure Committee, which formed a special subcommittee to study the problem and develop a solution. That subcommittee determined that a consolidation of existing separate sets of procedural rules could and should be accomplished by adhering to the following guiding principles: 1. Rules whose subject matter was covered adequately by other existing rules should simply be eliminated or combined with the existing rule. DECEMBER 2000 ARIZONA ATTORNEY 27

3 28 ARIZONA ATTORNEY DECEMBER Rule provisions in the sets of rules to be consolidated that had a bearing on the manner in which civil litigants and/or their counsel are to conduct civil litigation should be placed in the Arizona Rules of Civil Procedure. 3. Rule provisions that dealt primarily with the internal workings of the superior courts and that had, at most, an indirect impact on how litigants and/or their counsel interact with the judicial system should be placed in the Rules of the Arizona Supreme Court. The subcommittee then set about applying these principles and presenting its proposal to the whole committee, the Board of Governors and, eventually, the Arizona Supreme Court. The Court, after circulating the proposal for comment, approved the Project s recommendation in principle in January A detailed Order and Appendix, showing the changes being made, was then prepared and presented to the Court at its Rules Agenda in September. The Court approved the recommended changes, and the formal Order was issued in October. The amendments created by the Order take effect on December 1, What do practitioners need to know about the Order? The Order abrogates in their entirety the Uniform Rules of Practice of the Superior Court, the Uniform Rules of Procedure for Arbitration, and the Uniform Rules of Medical Malpractice, and it transfers most (but not all) of their former provisions to either the Arizona Rules of Civil Procedure or the Rules of the Arizona Supreme Court. Consistent application of the consolidation principles discussed earlier resulted in a recommendation, also approved, that certain existing provisions of the Arizona Rules of Civil Procedure either be renumbered or transferred to the Rules of the Arizona Supreme Court. To maintain consistency with the Federal Rules of Civil Procedure, new provisions of the Arizona Rules of Civil Procedure that resulted from this process were assigned a number, such as Rule 7.1 or Rule 26.2, which was not used in the Federal Rules.

4 Rules were placed so as to give the Arizona Rules of Civil Procedure greater internal logic. For example, all the former rules governing civil motion practice will now be contained in a single rule, new Rule 7.1, Ariz.R.Civ.P., as will all rule provisions governing securing trial settings and/or continuances; the latter will be contained in new Rule 38.1, which combines the provisions of former Rule V of the Uniform Rules of Practice and Rules 42(d) and (e), Ariz.R.Civ.P. The critical point is that, with the exception of the arbitration rules, very few substantive changes were made as a result of this process. Duplicative and outmoded rules have been eliminated. For example, the provisions of existing Rule V(a) of the Uniform Rules of Practice (which requires the exchange of lists of trial witnesses and exhibits as a predicate for seeking a trial setting) were eliminated as unnecessary in light of the disclosure requirements imposed by Rule 26.1, Ariz.R.Civ.P. Participants in the Rules Consolidation Project had determined that the Uniform Rules of Procedure for Arbitration would fit well, and with only minor adjustments, into the vacant section of the Arizona Rules of Civil Procedure formerly occupied by rules governing appeals (which were moved to the Arizona Rules of Civil Appellate Procedure in 1978). Because the Supreme Court had before it a separate petition for amendments to the arbitration rules, however, the Court decided to achieve consolidation and amend the arbitration rules in a single Order. Accordingly, the provisions of the Uniform Rules of Procedure for Arbitration are to be transferred to Rules 72 through 76 (Section IX) of the Arizona Rules of Civil Procedure and to be amended in the process. The amendments will: 1. Permit parties in arbitration cases to stipulate to pursue another method of alternative dispute resolution in lieu of arbitration. 2. Clarify the procedure for identifying cases subject to compulsory arbitration. 3. Reduce the experience requirement for eligibility to serve as an DECEMBER 2000 ARIZONA ATTORNEY 29

5 A TOOL FOR THE PRACTITIONER FROM THE SUPREME COURT A key document for practitioners is the 2000 Rules Consolidation Correlation Table, which details the path followed by the former provisions of the abrogated sets of rules to their new locations. This document also was presented to and approved for publication by the Court, and it is posted in the Recent Amendments portion of the Rules section of the Court s Web site: arbitrator from five years to four years. 4. Specify that the time periods for placing a civil case on the Inactive Calendar apply to cases assigned to arbitration, thereby anticipating and codifying the Court s holding in Martinez v. Binsfield, 196 Ariz. 466, 999 P.2d 810 (2000). 5. Relieve the arbitrator of the responsibility for dealing with parties who have defaulted. 6. Reconfirm that proceedings on an appeal to the superior court for an arbitration award are to be de novo. It probably can be anticipated that the implementation of this rules consolidation will generate some minor disruption and confusion. Citations to rules in form pleadings may have to be changed. Lawyers accustomed to referring to Rule IV motions and Rule V witness and exhibit lists will have to adapt to a new vernacular. However, everyone associated with the Project, as well as the Arizona Supreme Court, firmly believe that these minor and temporary inconveniences will be outweighed by the fact that lawyers finally will have a single set of rules, organized in a rational fashion, to consult for answers to procedural questions. It is anticipated that the process will be made more efficient and less confusing in both the short and the long run. Daniel J. McAuliffe is a partner in the Phoenix office of Snell & Wilmer with a practice concentrated in commercial litigation. 30 ARIZONA ATTORNEY DECEMBER 2000