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Bar News - August 23, 2013


Opinion: New Civil Rules Modernize Procedure While Staying True to NH History

By:

The procedural law governing civil practice in New Hampshire has a rich history and a distinctive character.

The revised Superior Court rules, which will take effect Oct. 1, either make or carry forward some important changes. Among these changes is the outright elimination of some centuries-old procedural devices.

Few may mourn the demise of the special appearance (which traces its roots to an 1858 Supreme Court decision). Nonetheless, as stewards of our unique procedural system, it is worth pausing to reflect on these changes against the backdrop of history.

Perhaps more importantly, as we prepare for the adjustments of the revised rules, it is worth considering some of the fundamental elements and principles of New Hampshire procedure that will not change. The following five points describe what will change and what will stay the same.

1. A very important rule does not change: Rule 1(d).

For the past 150 years, one transcendent principle has dominated New Hampshire’s law governing civil procedure. Chief Justice Charles Doe, who served on the Supreme Court for 35 years (20 as chief justice) famously rejected rigidity and strict formalism in favor of flexibility to achieve justice. To take one example, in Lisbon v. Lyman, 49 NH 553 (1870), Doe wrote: “The idea of a court being so fettered by forms... that the general principles of the law cannot be administered, is preposterous.” This bedrock principle would be in great tension with a more rigid procedural regime, including one akin to the Federal Rules, where technicalities abound. New Hampshire has, decidedly, not gone down that road.

That has not changed. The first words appearing in the preface to the existing Superior Court Rules reflect this precept: “As good cause appears and as justice may require, the court may waive application of any rule.” Those words now appear in Revised Rule 1(d). With that, the revised rules continue to embody the principle that rules are a means to achieving an end – justice – and are not in themselves an end.

2. The most important change: A single form of civil action

The revised rules carry forward a fundamental change first made in the so-called PAD Rules – the creation of one form of civil action, thereby eliminating the pleading distinctions between actions brought in law and in equity. Declarations accompanying a writ of summons and a petition accompanying orders of notice are now replaced with a complaint and a summons. Return dates, brief statements, and special pleas are eliminated. Rather, defendants in civil actions must file an “answer” or otherwise respond within 30 days of service.

In the context of history, the creation of a single form of civil action is surely significant. However, as a matter of practice, the form of initially pleading actions at law or in equity had effectively merged; most declarations contained separately numbered paragraphs setting forth factual allegations and counts for relief, as in an equitable petition or a complaint in federal court. What has not changed is New Hampshire’s distinctive approach to the contents of these pleadings.

As Chief Justice Kenison once stated, “It is probably no exaggeration to say that in no state is pleading treated more liberally and less of a game than in this jurisdiction. Here pleading is only a means to an end. The end is accomplished if counsel can understand the merits of a dispute and the court can decide the controversy on the merits.” Morency v. Plourde, 96 N.H. 345-46 (1950).

3. Writs are not dead

In a recent Bar News article describing the new rules, attorney David Slawsky wrote that, “The time has long since passed for our courts to get beyond the writ system.” If so, don’t tell the Legislature!

A “writ” is nothing more than process that issues from a court. Since its adoption, the Constitution has prescribed the contents of writs, part II, article 87, and numerous statutes command their use and form, including for attachment, replevin and execution. While the revised rules replace a writ of summons with simply a “summons,” the use of other writs has not changed, as the revised rules expressly provide. See Revised Rule 47(b)(6) (providing for writs of attachment) and 52(a) (providing for writs of execution).

This underscores another distinctive character of procedure in New Hampshire that the revised rules do not change. The New Hampshire Legislature has long played an active role in prescribing, often in great detail, procedure in the courts. As recently as the 2013 session, the Legislature amended one of the statutes governing depositions, RSA 517:4, to provide expressly for the taking of video depositions. This statute will complement revised Rule 26(l), which governs the use of videotaped depositions.

Another very important example is the legislative prescription regarding expert disclosures, set forth at RSA 516-29-b. The revised rules establish this as the default disclosure, unless waived by the parties, and eliminate the familiar disclosure requirements of existing Rule 35(f). See Revised Rule 5(a) and 27(b). This illustrates that New Hampshire procedure has been, and will continue to be, governed by a mixture of statute, common law, and court rule.

4. Special appearance, RIP

Until 1858, a defendant could raise objections to personal jurisdiction or the sufficiency of process by means of a plea in abatement, motions to quash or, in some instances, under the general issue. With the case of Wright v. Boynton & Hayward, decided that year, the Supreme Court began to develop the notion that, except when a party appears for the sole purpose of objecting to a court’s jurisdiction, general jurisdiction exists. Among the more extreme applications over the years was a case in which a party communicated with a clerk about seeking a continuance prior to retention of counsel and thereby conferred jurisdiction.

With the revised rules, litigants must file a motion to dismiss to challenge personal jurisdiction or sufficiency of service, but they do not waive their arguments by also filing an answer. Special appearances are eliminated, thereby essentially returning the law to where it was prior to 1858. The change preserves the requirement of challenging personal jurisdiction immediately while removing a potential trap. As such, it is a welcome development.

5. Finally, discovery modernization

Existing Rule 35(a) has long authorized the “production of documents or things or permission to enter land or other property” as a discovery method. However, there has never been a separate court rule addressing this mainstay of discovery. That the device was nonetheless regularly used underscores the flexibility of New Hampshire’s approach to procedure.

Revised Rule 21 now specifically addresses production of documents, and revised Rule 29(c) subjects such requests to the conditional default mechanism that has long existed with respect to interrogatories. Of course, under the PAD rules, as carried forward in revised Rule 22, parties are obligated to disclose automatically all documents and electronically stored information that are to be used in support of a claim or defense. Revised Rule 25 carries forward the PAD rule governing electronically stored information.

For the most part, other changes in the revised rules are relatively modest. To be sure, the existing Superior Court Rules were long in need of a good house-cleaning. The dust and cobwebs have been cleared, and the remaining rules have been reorganized into a more coherent, accessible product.

That is worthy of our unique heritage.


Gordon J. MacDonald

Gordon J. MacDonald is a litigation partner at Nixon Peabody LLP in Manchester. He is the author of Wiebusch on New Hampshire Civil Practice and Procedure (3d ed. Matthew Bender & Co. 2010). A new edition of that work, reflecting the revised Superior Court Rules, as well as other recent changes to New Hampshire practice, is scheduled for publication in 2014.

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