Several significant amendments to the Federal Rules of Civil Procedure became effective on December 1, changing obligations for attorneys and parties in civil litigation in federal court. Significant amendments to California’s Code of Civil Procedure, affecting demurrer procedure, 998 offers, peremptory challenges, expedited trials in limited jurisdiction cases, among other changes, also took effect this year. These changes have the potential to be quite important, ranging from duties of the attorneys and parties to limit the scope of discovery to duties to preserve electronically stored information, which is an emerging change that heightens the competence obligations of attorneys dealing with this technology. Litigators know that significant amendments to the federal rules are rare, but even small revisions have the potential to dramatically change how their cases are litigated. From a practice management perspective, here’s how to make sure your firm has the right systems and procedures in place to monitor and to incorporate new rules into your practice in a comprehensive way.
- Make rules review a part of your annual legal ethics audit. If you have not yet already adopted the practice of an annual legal ethics audit for your law firm, start now. As part of the annual review of your practice management and compliance issues, include a detailed review of rules changes in court where you litigate, and ensure that they are incorporated into your firm’s compliance systems.
- Review software and subscriptions to ensure updates are automatic. You might be surprised to learn that not all calendaring or legal research software automatically updates with new rules as they become effective. Even if updates are automatic, the scope of your subscription may limit access to them. So check your software and subscriptions to ensure that they are updating automatically and that you have an appropriate subscription for these updates for the courts where you litigate.
- Designate a rules attorney. The best method to ensure that you remain informed about relevant rules changes is to make it the responsibility of an attorney at your firm to report on changes on a regular basis. It doesn’t have to be often, since the rules don’t change that often and when they do, there is plenty of warning. But at least annually someone at your firm should be circulating information about new rules and amendments that matter to your practice.
- Set Your CLE for Year-end Reviews. If you are a solo, or if you practice in a firm but no one wants to be the rules attorney, sign up for the next best thing: a year-end rules review CLE. You have to complete CLE anyway, so make it an annual CLE tradition for December to attend a year-end review, including any changes to rules that are coming in the new year. Tedious? Yes. But a good idea.
- Set Up Staff Training to Incorporate Monitoring Rules Changes. Staff training programs should include instructing all levels of firm staff to monitor and to implement rules changes. Many of the rule amendments affect things that staff handle every day: service, briefs, electronic data. Make sure that your staff training programs (and you have one of those, right?) include training for how to spot and to handle new rules.