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Rules of Practice and Procedure: Print Publications on Federal Rules Research
The printed research reports listed here were completed as part of the Federal Judicial Center's research mission to provide Judicial Conference committees, including the rules committees, with independent research support.
Survey of Harm to Cooperators: Final Report
Margaret S. Williams, Donna Stienstra, and Marvin Astrada
2016, 148 pages (In Print: Available for Distribution)
At the request of the Court Administration and Case Management Committee, the Criminal Law Committee, and the Committee on Defender Service, the FJC surveyed federal district judges, U.S. Attorney’s Offices, federal defenders, Criminal Justice Act (CJA) district panel representative’s offices, and chief probation and pretrial services offices about harm or threat of harm to government cooperators. Respondents reported a minimum of 571 instances of harm to defendants/offenders and witnesses in the past three years. Cases often involved harm to both defendants/offenders and witnesses. Respondents most often reported threats of physical harm to defendants/offenders or witnesses and to friends or family of defendants/offenders or witnesses. Defendants were most likely to be harmed or threatened when in some type of custody, while witnesses were either in pretrial detention or not in custody at the time of harm or threat. Respondents frequently reported court documents or court proceedings as the source for identifying cooperators. Concerns about harm or threat affected the willingness of both defendants/offenders and witnesses to cooperate with the government in the past three years. Overall, respondents generally agreed that harm to cooperators was a significant problem and that more needed to be done to protect cooperators from harm.
Trends in Summary Judgment Practice: 1975-2000
Joe S. Cecil, Rebecca N. Eyre, Dean Miletich, and David Rindskopf
2007, 33 pages (In Print: Available for Distribution)
Report of a Federal Judicial Center study of summary judgment practice in six federal district courts during six time periods over twenty-five years (1975-2000), to determine whether summary judgment activity has increased over time and to what extent changes in summary judgment practice are due to the 1986 Supreme Court trilogy of summary judgment cases.
Citing Unpublished Opinions in Federal Appeals
Robert Timothy Reagan, Meghan Dunn, David Guth, Sean Harding, Andrea Henson-Armstrong, Laural Hooper, Marie Leary, Angelia Levy, Jennifer Marsh, and Robert Niemic
2005, 307 pages (In Print: Available for Distribution)
At its June 2004 meeting, the Standing Committee on Rules of Practice and Procedure asked the Appellate Rules Advisory Committee to ask the Federal Judicial Center to conduct empirical research that would help the Standing Committee in its consideration of a proposed new Federal Rule of Appellate Procedure 32.1, which would permit attorneys and courts in federal appeals in all circuits to cite the court's unpublished opinions. The Center's research effort consisted of three components: (1) a survey of judges, (2) a survey of attorneys, and (3) a survey of case files. The rule, as amended and approved by the Judicial Conference in September 2005 and approved by the Supreme Court in April 2006, applies only to opinions issued in 2007 or later. The rule became effective December 1, 2006.
An Empirical Examination of Attorneys' Choice of Forum in Class Action Litigation
Thomas E. Willging and Shannon R. Wheatman
2005, 125 pages (In Print: Available for Distribution)
This article presents attorney responses to a national random survey of 728 attorneys who represented plaintiffs and defendants in 621 recently closed class action cases. Those cases had been filed in or removed to federal courts, and the article focuses on attorneys' reasons for choosing a state or federal forum. The article also tracks the differences in rulings in state and federal courts on class certification, motions to dismiss, settlement review, and attorney fee awards in a subset of the 621 cases.
Report of a Survey of United States District Judges' Experiences and Views Concerning Rule 11, Federal Rules of Civil Procedure
David Rauma and Thomas E. Willging
2005, 23 pages (In Print: Available for Distribution)
A report of the results of a survey completed by 278 of 400 (70%) federal district judges in the winter of 2004-05. The Center conducted the study at the request of the Judicial Conference's Advisory Committee on Civil Rules. A questionnaire elicited the judges' experiences and opinions about the merits of past and current versions of Federal Rule of Civil Procedure 11 and about a legislative proposal to modify Rule 11. The judges expressed a strong preference for Rule 11 in its current form.
Analysis of Briefing Requirements in the United States Courts of Appeals
2004, 55 pages (In Print: Available for Distribution)
The Federal Judicial Center prepared this report to assist the Judicial Conference Advisory Committee on the Federal Rules of Appellate Procedure to evaluate reported problems with and potential amendments to Rules 28 and 32 on the content and cover of briefs. The report presents information received from the thirteen courts of appeals on every local rule or practice that imposes upon briefs and brief covers requirements that are not in the national rules. The report also describes the history behind the adoption of the local requirements, the extent to which courts enforce them, as well as the courts' plans to adopt more briefing requirements, problems courts have experienced under the current rules, and whether Rule 28 should be amended to prohibit further variations or to include additional or different briefing requirements.
Sealed Settlement Agreements in Federal District Court
Robert Timothy Reagan, Shannon R. Wheatman, Marie Leary, Natacha Blain, Steven S. Gensler, George Cort, and Dean Miletich
2004, 165 pages (In Print: Available for Distribution)
An examination of 288,846 federal district court cases revealed 1,270 cases that appeared to have sealed settlement agreements, for a sealed settlement rate of less than one half of one percent. In 97% of the cases with sealed settlements the complaint was not under seal. This research was conducted at the request of the Judicial Conference's Advisory Committee on Civil Rules. Although the practice of confidential settlement agreements is common, the question was how often and under what circumstances are such agreements filed under seal.
State Court Procedures Regarding Pre-Verdict Judgments of Acquittal and the State's Right to Appeal Those Judgments
Marie Leary and Laural L. Hooper
2003, 46 pages (In Print: Available for Distribution)
The Department of Justice proposed amending Federal Rule of Criminal Procedure 29 to preserve the government's right to appeal a trial court's decision to grant a motion for judgment of acquittal. The Department argued, "Rule 29 as currently constituted represents an anomaly within the Rules and indeed within the judicial system." To help inform the debate, the Advisory Committee on Criminal Rules of the Judicial Conference of the United States asked the Federal Judicial Center to conduct a study of state laws that allow the trial judge to grant a motion for a judgment of acquittal prior to the case's submission to the jury. Specifically, the Committee wanted to know (1) whether a state judge may enter a judgment of acquittal before a jury verdict, and (2) whether the prosecution may appeal from judgments of acquittal directed by the trial judge prior to submission of the case to the jury.
Neutral Science Panels: Two Examples of Panels of Court-Appointed Experts in the Breast Implants Product Liability Litigation
Laural L. Hooper, Joe S. Cecil, and Thomas E. Willging
2001, 104 pages (In Print: Available for Distribution)
This report to the Judicial Conference Committee on Court Administration and Case Management describes two different types of independent panels used in the silicone gel breast implants litigation. The use of such panels of appointed experts represents a marked departure from the traditional means of presenting and considering testimony. This report describes these expert panels in sufficient detail to permit others to understand the procedures that were used, the benefits that resulted, and the problems that arose. A similar version of this report was originally delivered to the Committee in November 1999.
Case Law Divergence from the Federal Rules of Evidence
Daniel J. Capra
2000, 26 pages (In Print: Available for Distribution)
This report is an effort to increase the awareness of counsel practicing in federal courts, as well as judges, about the possibility that case law has diverged from the text of some of the Federal Rules of Evidence. At the request of the Judicial Conference Advisory Committee on the Rules of Evidence, Professor Daniel Capra, committee reporter, highlights the major instances in which case law has diverged from an applicable Rule. This divergence comes in two forms: (1) where the case law (defined as case law in at least one circuit) is flatly inconsistent with the text of the Rule, the Committee Note explaining the text, or both; and (2) where the case law has provided significant development on a point that is not addressed by either the text of the Rule or the Committee Note.
Special Masters' Incidence and Activity: Report to the Judicial Conference's Advisory Committee on Civil Rules and Its Subcommittee on Special Masters
Thomas E. Willging, Laural L. Hooper, Marie Leary, Dean Miletich, Robert Timothy Reagan, and John Shapard
2000, 125 pages (In Print: Available for Distribution)
The Special Masters' Subcommittee of the Advisory Committee on Civil Rules of the Judicial Conference asked the Center to examine how often judges appointed special masters and what functions they asked masters to perform. This report documents the incidence of recent special master consideration and appointment. The authors found that such activity was rare and occurred primarily in high-stakes cases that were especially complex. Party initiative, consent, or acquiescence provided the foundation for appointments and the basis for authorizing activities not contemplated by Rule 53. The subcommittee used the report along with other information in framing a proposed revision of Rule 53 that was published in August 2001.
Advisory Committee Notes to the Federal Rules of Evidence That May Require Clarification
Daniel J. Capra
1998, 48 pages (In Print: Available for Distribution)
At the request of the Advisory Committee on Evidence Rules, Professor Daniel Capra, committee reporter, listed instances where Congress either rejected or substantially changed rules before passage, thus rendering advisory committee notes possibly confusing. He provides an introduction and a rule-by-rule commentary on these discrepancies.
Mass Tort Settlement Class Actions: Five Case Studies
1998, 100 pages (In Print: Available for Distribution)
This report by Professor Jay Tidmarsh of Notre Dame Law School examines five cases in which Rule 23 of the Federal Rules of Civil Procedure has been used to achieve a settlement of a mass tort controversy. The reason for studying mass tort settlement class actions is simple: Using class actions for this purpose has been, and is, controversial. The mass tort settlement class action was the subject of a significant decision in the last term of the Supreme Court, and it is also the subject of a proposed amendment to Rule 23 that has been under consideration by the Advisory Committee on the Federal Rules of Civil Procedure. There has been considerable debate both about the idea of settlement class actions in general and about the proposed amendment in particular. There have also been a number of case studies or anecdotal descriptions about mass torts in which settlement classes have been used. Thus far, however, the studies and descriptions have been narrowly focused on only one case or on only some of the issues relevant to the propriety of settlement class actions.
Chapter 11 Venue Choice by Large Public Companies: A Report to the Judicial Conference Committee on the Administration of the Bankruptcy System
Gordon Bermant, Arlene Jorgensen Hillestad, and Aaron Kerry
1997, 72 pages (In Print: Available for Distribution)
A report that responds to a request by the Judicial Conference Committee on the Administration of the Bankruptcy System for empirical information and analysis on whether the bankruptcy case venue statutes and procedural rule should be amended. The report presents the results of a 1996 survey of federal bankruptcy judges about Chapter 11 venue and judges' views of a proposal to amend 28 U.S.C. Section 1408 to prohibit corporate debtors from filing for relief in a district based solely on the debtor's state of incorporation or based solely on an earlier filing by a subsidiary in the district. The report also presents analyses of administrative and demographic characteristics of large public companies that emerged from Chapter 11 during 1994 and 1995.
Discovery and Disclosure Practice, Problems, and Proposals for Change: A Case-based National Survey of Counsel in Closed Federal Civil Cases
Thomas E. Willging, John Shapard, Donna Stienstra, and Dean Miletich
1997, 75 pages (In Print: Available for Distribution)
At the request of the Judicial Conference Advisory Committee on Civil Rules, the Center conducted a study of the discovery process, examining the extent to which discovery is used, the frequency and nature of problems in discovery, the impact of the 1993 amendments, and whether additional rule changes are needed. This is the report of that study. Submitted to the Judicial Conference Advisory Committee on Civil Rules, for Consideration at its Meeting September 4-5, 1997.
Empirical Study of Class Actions in Four Federal District Courts: Final Report to the Advisory Committee on Civil Rules
Thomas E. Willging, Laural L. Hooper, and Robert J. Niemic
1996, 200 pages (In Print: Available for Distribution)
A study conducted by the Center to provide the Judicial Conference's Advisory Committee on Civil Rules with systematic, empirical information about how Federal Rule of Civil Procedure 23 operates. The study addressed many questions about the day-to-day administration of Rule 23 in the types of class actions that are ordinarily filed in the federal courts. The report presents empirical data on all class actions terminated between July 1, 1992, and June 30, 1994, in four federal district courts, and it discusses many of the issues in the continuing debate about class actions.
Survey on the Federal Rules of Bankruptcy Procedure
Elizabeth C. Wiggins, Molly Treadway Johnson, Gregory A. Mahin, and Robert J. Niemic
1996, 45 pages (In Print: Available for Distribution)
A report of the results of a Center survey of participants in the bankruptcy system concerning their views of the Bankruptcy Rules and related forms. The Long-Range Planning Subcommittee of the Judicial Conference's Committee on Bankruptcy Rules requested the survey as part of a comprehensive review of the rules to determine whether they should be modified. After reviewing this report and the survey comments, the subcommittee identified three areas for possible further study: litigation practice, attorney admissions and ethics, and inconsistencies in the hearing requirements of Bankruptcy Code provisions and related Bankruptcy Rules.
Likely Consequences of Amendments to Rule 68, Federal Rules of Civil Procedure
John E. Shapard
1995, 65 pages (In Print: Available for Distribution)
A report that uses trial attorneys' responses to a Center survey concerning 800 federal civil cases in assessing proposed amendments to Fed. R. Civ. P. 68 to make it more effective in encouraging settlement and reducing litigation. The results indicate that a more effective Rule 68 would be well received by most attorneys and would likely influence litigation in about 50% of civil cases, resulting in more and earlier settlements at reduced expense and with limited effects for litigants of modest means.
Report of a Survey Concerning Rule 11, Federal Rules of Civil Procedure
John Shapard, George Cort, Marie Cordisco, Thomas Willging, Elizabeth Wiggins, and Kim McLaurin
1995, 15 pages (In Print: Available for Distribution)
A report of the results of a Center survey that sought federal trial attorneys' and federal district judges' views of the effects of Rule 11 before 1993, the effects of amendments to Rule 11 that became effective December 1, 1993, and the merits of proposals that would in large measure reverse the 1993 amendments. The results suggest that a majority of respondents generally oppose the proposed changes to Rule 11, with one exception: a majority believe that the purpose of Rule 11 sanctions should encompass compensation of parties injured by violations of Rule 11 as well as deterrence of such violations.
Court-Appointed Experts: Defining the Role of Experts Appointed Under Federal Rule of Evidence 706
Joe S. Cecil and Thomas E. Willging
1993, 108 pages (In Print: Available for Distribution)
A study of why judges rarely appoint experts under Rule 706. In discussing this issue with judges, the authors learned of techniques and procedures that may aid judges when considering whether to appoint an expert or when managing an expert who has been appointed. These suggestions are collected in the final chapter of this report.
Elizabeth C. Wiggins, Thomas E. Willging, Donna Stienstra, and Joe S. Cecil
1991 to 1992 (In Print: Available for Distribution)
A magazine that reported Center research and education activities in a concise format. Two issues include research reports on rules. No. 2 (Nov. 1, 1991) is a Special Issue on Rule 11. No. 4 (Aug. 1, 1992) includes an article on Defining a Role for Court-Appointed Experts.
The Analysis and Decision of Summary Judgment Motions: A Monograph on Rule 56 of the Federal Rules of Civil Procedure
William W. Schwarzer, Alan Hirsch, and David J. Barrans
1991, 98 pages (In Print: Available for Distribution)
The authors suggest ways of thinking about summary judgment that can help judges and lawyers make more effective use of the rule as a vehicle to reach the objectives of Federal Rule of Civil Procedure 1: the just, speedy, and inexpensive resolution of litigation.
Rule 11: Final Report to the Advisory Committee on Civil Rules of the Judicial Conference of the United States
Elizabeth C. Wiggins, Thomas Willging, Donna Stienstra, and Michael E. Barnsback
1991, 308 pages (In Print: Available for Distribution)
Report on an empirical study of Federal Rule of Civil Procedure 11. The Research Division of the FJC undertook the study to assist the Advisory Committee on Civil Rules in its evaluation of the rule. The study has three major components: (1) a survey of all federal district judges about their experiences with Rule 11; (2) an analysis of all district and appellate opinions published between 1984 and 1989 that address Rules 11 issues; and (3) a study of Rule 11 activity in five district courts. The district court study includes a separate analysis of the application of Rule 11 to civil rights cases in these five courts.
Use of Rule 12(b)(6) in Two Federal District Courts
Thomas E. Willging
1989, 19 pages (In Print: Available for Distribution)
Federal Rule of Civil Procedure 12(b)(6) allows the defense of "failure [of a complaint] to state a claim upon which relief can be granted." The Center conducted the study at the request of the Advisory Committee on Civil Rules of the Judicial Conference of the United States and its reporter, Professor Paul Carrington. After considering the data in the paper at its April 1989 meeting, the Advisory Committee decided not to change Rule 12(b)(6).
The Rule 11 Sanctioning Process
Thomas E. Willging
1988, 200 pages (In Print: Available for Distribution)
A report that discusses the possible chilling effects and potential for creating satellite litigation of Federal Rule of Civil Procedure 11 (before the 1993 amendment that increased judges' discretion as to imposing sanctions). It also discusses the nature and adequacy of procedures used to implement the rule. The report is based on interviews with judges and lawyers in eight districts. The author describes his methodology and reports his empirical findings.
Summary Judgment Practice in Three District Courts
Joe S. Cecil, C. R. Douglas
1987, 13 pages (In Print: Available for Distribution)
AA review of data indicating a decline in the percentage of cases disposed of by summary judgment from 1975 to 1986. The report also notes, however, a renewed interest in the use of this procedure, the standards for which have been clarified by several Supreme Court decisions.
An Empirical Study of Rule 11 Sanctions
Saul M. Kassin
1985, 81 pages (In Print: Available for Distribution)
The results of a survey of 292 federal district judges concerning how they interpret and apply the 1983 amendments to Federal Rule of Civil Procedure 11 (before the 1993 amendments). Based on the judges' hypothetical reactions to actual cases in which Rule 11 sanctions were requested, the study outlines the judges' standards and rationales for imposing sanctions, the kinds of sanctions imposed, and the relationship between the judges' opinions and their expectations of how their colleagues would rule on the same issues.
District Court Implementation of Amended Federal Civil Rule 16: A Report on New Local Rules
1984, 86 pages (In Print: Available for Distribution)
An examination of the local rules federal district courts have developed in response to the 1983 amendment to Federal Rule of Civil Procedure 16, which calls for increased use of scheduling orders in managing caseloads. An appendix contains sample local rules from fifteen districts.
Disqualification of Federal Judges by Peremptory Challenge
Alan J. Chaset
1981, 82 pages (In Print: Available for Distribution)
An analysis of statutory procedures proposed in the early 1980s, and which continue to arise, that would allow federal litigants to challenge, on a peremptory basis, the federal judge or magistrate judge assigned to their case. Prepared at the request of the Judicial Conference Advisory Committee on Criminal Rules, the report discusses the proposals that have been offered on the federal level, analyzes the procedures then in effect in seventeen state court systems, and considers the possible administrative consequences of a federal peremptory challenge procedure.
Sanctions Imposable for Violations of the Federal Rules of Civil Procedure
Robert E. Rodes, Jr., Kenneth F. Ripple, and Carol Mooney
1981, 186 pages (In Print: Available for Distribution)
A survey of the current state of the law with respect to sanctions for violations of the Federal Rules of Civil Procedure, as reported in both the case law and the secondary literature. The report examines sanctions under Rules 47, 41(b), 55, 36, 11, and 16; several local rules; and rules permitting sanctions against attorneys rather than clients. The authors conclude that there is considerable laxity in the imposition of sanctions for violation of the rules, and they suggest several amendments to the rules.
Case Management and Court Management in United States District Courts
1977, 153 pages (In Print: Available for Distribution)
An oft-cited analysis of the differences between court management procedures resulting in fast versus slow processing and those resulting in high versus low rates of disposition. This volume reports the overall results of the District Court Studies Project, a long-range effort by the Federal Judicial Center to assist the work of the United States district courts. The goal of the project is to help the courts achieve and reconcile the purpose stated in Rule 1 of the Federal Rules of Civil Procedure: "to secure the just, speedy, and inexpensive determination of every action." Specifically, the project has been designed to determine what procedures are associated with the highest possible speed and productivity, consistent with he highest standards of justice. Alternative procedures are examined and recommended.