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Bar News - September 16, 2015


Court News: Comments Sought on Rule-Change Amendments

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The NH Supreme Court requests comments by Friday, Oct. 9, from bar members and the public on the annual recommended changes to court rules, including a new procedure for adopting court rules.

This is the last comment period before the Court decides whether to adopt the proposed rules. Among them is a new version of Rule 51, which governs the way the court makes rules. The proposal, an attempt to streamline the long and complicated process, would see the Supreme Court Advisory Committee on Rules submitting proposed changes to the court twice each year (April and November), instead of just once in August.

The proposed new system would also eliminate some public hearings before the rules committee and provides a more detailed process for the adoption of temporary rules, which theoretically would not be needed as often, given the more frequent reports to the Court.

The most recent round of recommended changes also includes revisions to Rule 20 (Non-Precedential Status of Orders). The proposed changes would allow litigants to cite and discuss unpublished opinions of the court, but also provide that the opinions do not constitute binding precedent. This change comes about a year after the NH Supreme Court began posting all final orders on the merits to the NH Judicial Branch website. Self-represented parties often cite unpublished opinions, and some members of the rules committee felt a new rule would be helpful to clarify the issue. Although the ability to effectively search court orders is still not available via the judicial branch website, it is possible to search orders using Google Advanced Search. NOTE: The June 17, 2015 Bar News issue published “Searching and Citing NH Court Orders Online” which further discussed the availability of trial court and appellate court non-precedential orders, along with a sidebar on using Google Advanced Search to locate specific orders.

Another proposal that has generated some interest and comment to the rules committee involves amendments to NH Superior Court Civil Rule 26 (Depositions; Notice or Subpoena Directed to an Organization). This proposal would add a provision which would allow a party to name as a deponent a public or private corporation, a partnership, an association, or a governmental agency, and require the named organization to designate one or more officers, directors, managing agents, or other persons who consent to testify on its behalf.

First made by Judge Richard McNamara in October 2013, this proposal would make the state court rule similar to the federal rule. Attorney Irvin Gordon, in a letter written last summer, expressed concerns about the rules change, because unlike the federal rule, the proposed language would not allow the deponent to note “changes in form or substance and to submit such changes in a post-deposition signed statement.”

After receiving Gordon’s comment, the court held off on adopting the amended rule, and language was drafted to address Gordon’s concern. But after review by the committee and McNamara, and after receiving another attorney comment, there was concern that the change could cause more problems than it was worth, and the original proposal was again sent to the court this year.

The full annual report of the NH Supreme Court Advisory Committee on Rules, which is posted on the court’s website, describes each proposed rule change in detail and provides the history of discussion and changes to it. Hard copies of the report are available upon request.

Comments on the proposals should be sent to rulescomments@courts.state.nh.us by Friday, Oct. 9.

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