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Bar News - May 17, 2013

Opinion: Historical Roots of Superior Court Civil Rules


"But Sandy, What Will That Mean to the Police Chief in Plaistow?"

David P. Slawsky
The New Hampshire Judicial Branch is making final changes to new rules of civil procedure that are scheduled to take effect in the Superior Court on Oct. 1. What follows is an effort to put the development of these new rules in historical context.

Before the middle of the 19th century, case procedures throughout the country were governed entirely by individual judges who decided what procedures were required in each case. Actions at law were different from actions in equity. Cases were dismissed due to the technical failure of attorneys to comply with arcane rules applied inconsistently by different members of the judiciary.

During the 19th century, New York lawyer David Dudley Field II spent much of his legal career – more than 40 years – developing and then lobbying for the enactment of a code of rules to take the place of this common law practice. The Field Code was first enacted in New York State in 1850.

As the Field Code spread throughout the country, momentum built for a code of federal rules. The first codification of federal rules was enacted in 1938.

Until 1901, disputes in New Hampshire were tried in the probate courts or the Supreme Court. That year, the state Legislature established the Superior Court, dividing the jurisdiction of the Supreme Court. From then on, trials were held in the superior courts. Early procedures were based on the common law.

The older members of our state bar recall a time when a single volume constituted the entirety of an attorney’s law library. First published in 1888 and known as "Justice and Sheriff," this work captured in a single volume the forms and procedures required in New Hampshire for civil, equity, and criminal cases.

The full title of the book’s 1931 revision is, PRACTICAL FORMS for the use of Attorneys, Justices of the Peace, Sheriffs, and Constables containing FORMS OF PROCEEDINGS and the Public Laws of New Hampshire relating to the Duties of Those Officers. My yellowed copy, with index, is 633 pages long. Forms for writs and the requirements for declarations are set forth for the most common causes of action.

To give you an idea of the difference between 1931 and today, current New Hampshire Supreme Court Rule 42 outlines the requirements for practicing law in the state. In my LexisNexis volume of the NH Supreme Court Rules Annotated, Rule 42 spans seven single-spaced pages. "Justice and Sheriff" detailed the requirements for admission in 1931 this way:

"ADMITTED. Any citizen of the age of twenty-one years, of good moral character, on application to the Supreme Court, shall be admitted to practice as an attorney. NOTE: Apply to the Clerk of the Supreme Court, State Library, for blanks and instructions."

As the rules grew longer and more complex, codification became an important exercise in simplification and streamlining, in both federal and state courts. New Hampshire was no exception.

On the criminal side, at the direction of the 1967 Legislature, a three-man committee made up of NH Supreme Court Chief Justice Frank Kenison, Manchester attorney Clifford Ross and Strafford County Superior Court Clerk Richard Keefe, assisted by Boston College law professor Sanford "Sandy" Fox, began meeting weekly to develop a new code. In response to a particularly complex and detailed proposal by professor Fox, Chief Justice Kenison articulated what would become the group’s guiding principle: "But Sandy, what will that mean to the police chief in Plaistow?"

The Report of Commission to Recommend Codification of Criminal Laws was completed in April 1969. The rules of the New Hampshire Superior Court took effect July 3, 1979.

A few years later, in 1982, the Bar Association made a concerted effort to replace the patchwork of superior court civil rules with a code that largely followed the federal Rules of Civil Procedure. The effort was led by attorney Martin Gross of the Sulloway office and involved hundreds of attorneys who invested thousands of volunteer hours.

Ultimately, the Gross committee recommended a set of rules similar to the rules adopted in many states during that period, following very closely the federal rules of civil procedure. At the same time, a group of experts in criminal law (including James Duggan and David Souter) developed a new set of criminal rules.

The unified bar and the Supreme Court Advisory Committee on Rules recommended adoption of the civil rules. But the Supreme Court was divided and decided to hold oral arguments. The result was In re Rules of Civil Procedure, a 4-1 decision (Thayer, J. dissenting) in 1995 that rejected the proposal. With that decision, the parallel development of a new set of criminal rules ended. I’m a little confused as to how the development of new criminal rules was tied to the civil rules proposal.

Ten years later, a new effort to develop civil rules began. Stemming from meetings of the Bar Association Committee on Cooperation with the Courts, of which I was chair at the time, this new initiative received encouragement notably from then-Chief Justice John Broderick and then-Associate Justice Linda Stewart Dalianis.

Rather than recommend adoption of the federal rules, the underlying idea was to simply restructure the existing state court rules to follow the well-known pattern established in the federal rules, leaving the substance of New Hampshire’s rules largely unchanged. The initial draft was reviewed by members of the Committee on Cooperation and then refined by a subcommittee we called the Committee to Update, Restructure and Simplify the Rules of Civil Procedure. Kimberly Kirkland, a professor of civil procedure at Franklin Pierce, and Martin Honigberg, a longtime a member of the Supreme Court Advisory Committee on Rules, joined me on that committee.

A draft of the new rules was submitted to the Supreme Court in 2007. James Duggan, by that time an associate justice of the Supreme Court, brought back the criminal rules developed in the 1990s, to be reviewed and updated by a committee of prosecutors and defense attorneys. Drafts of both sets of rules were circulated for public comment by the Advisory Committee on Rules.

Last year, Superior Court Chief Justice Tina Nadeau gave the project a final push. Most recently, Strafford County Superior Court Clerk Julie Howard modified the civil rules to ensure that they incorporated and were consistent with the Proportional Discovery/Automatic Disclosure procedures (PAD rules). Final changes are now being made by the Supreme Court Advisory Committee on Rules, led by Supreme Court Associate Justice Robert Lynn.

David Slawsky is a partner at Nixon, Raiche, Vogelman, Barry, Slawsky & Simoneau in Manchester.

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