In what could be a major change for state court litigation, the Mississippi Supreme Court is requesting comments about proposed amendments to the Rules of Civil Procedure. The proposals include mandatory scheduling orders and trial settings for civil actions.

Here is the Court’s entire document on the proposals.

Here is the Advisory Committee on Rules’ Motion to amend Rule 16. The motion opens:

Over the past several years, the Mississippi Supreme Court has referred to the Committee various inquiries and requests from members of the Mississippi Bar asking for consideration of a rule requiring mandatory scheduling orders/trial settings. After due consideration and discussion, the Committee determined that a rule pertaining to scheduling orders and trial settings would be beneficial to both the bench and the bar.

Here is Anderson’s post on the proposal.

Under the proposal, the lawyers are responsible for drafting the order. Further, “as the proposed amendment mandates all the deadlines, there is no room for disagreement among the attorneys and, therefore, no need to involve the judge.”

The amended rule would mandate deadlines similar to federal court orders. The trial date would have to be scheduled for a window 12-18 months from the date of the entry of the scheduling order.

My Take:

As an LSU fan, I have a tendency to nitpick wins. “Yea, we won the game. But Les Miles’ game management gives me a heart attack, the quarterback play sucked and we should have won by two touchdowns.”

I’m not doing that here. I love the proposed amendment. Plus, it’s not like the Court can’t tweak it later. This is long overdue and much needed. We know this system will work better than the current system from our experience in federal court. Miss. Supreme Court

What I didn’t know was that members of the Bar could make requests to the Court for rule amendments. But since I know that now, let me take this opportunity to request a rule requiring judges in bench trials to issue a ruling within certain amount of time after the end of the trial. I know of instances where trial judges have taken years to rule in bench trials. Something needs to be done to address that.

I think my favorite bench trial was before Rankin County Court Judge Kent McDaniel. It took him all of a couple of minutes to rule. And my client lost, so that’s not what I liked about it.

Nothing tops the anxiety of waiting for a trial ruling. Anything that shortens it is a plus.

 

  • David Frazier

    The only problem is that deadlines, like contracts, are made to be broken. This is particularly true when the attorneys involved are part of the trial judge’s circle of influence. Therefore, in order to avoid arbitrary application of the deadlines, the rules need to provide for at least one peremptory extension per side without cause. Extensions should be treated like a Rule 15 motion to amend the complaint–liberally allowed.

    • “Extensions should be treated like a Rule 15 motion to amend the complaint–liberally allowed”

      Uh, I think that’s what we have now, i.e. part of the problem.

      • David Frazier

        I remember in 1984 when the “new” Rules of Civil Procedure came out, that Chancellor Ken Robertson warned anyone who would listen that “you had better watch out, these rules are designed to perpetuate more rules, and are going to kick everyone in the ass one day!” As a young attorney who grew up under the Federal Rules, I shrugged it off as him just being a ludite. After all, with the adoption of the new rules of procedure and evidence they have made the practice of law more uniform and predictable, and therefore more fair for all attorneys. However, as I recall, the Bar was assured by the Court that litigation practice in state court would never reach the level of federal court where “form is often placed over substance”.

        Then, some years later, Rule 16 of the Rules of Civil Procedure was adopted. Overnight many state court trial judges began to think that it was time to commence using scheduling orders in all of their cases. The outcry became so great that many judges finally ceased imposing them, unless the attorneys requested a scheduling order. However, some continue to impose scheduling orders in keeping with their federal brethren. Now we are being advised that the Court is planning to amend Rules 16 and 26 again, to mandate the use of scheduling orders just like in federal court, and to lock in the actual days for scheduling trials, discovery, designations, etc.; and that extensions may only be granted upon agreement of counsel and upon a showing of good cause to the Court–all despite previous assurances that it would never occur.

        Lord Acton once said, “Reform for the sake of reform, always leads to the need for more reform.” To be sure, for attorneys who have a team of paralegals, secretaries, and law clerks on hand 24 hours a day to assist attorneys to watch over and to assist them, the suggested amendments make perfect sense. However, for the small firm or solo practitioners who are being pulled in different directions every day with only their calendars and their wits to keep them in step the proposed changes are a recipe for creating a boom in legal malpractice cases, along with the concurrent need to greatly increase the services of the Lawyers and Judges Assistance program.

        Therefore, if the amendments are going to be made along the lines as proposed, at the very least each side should be permitted within the language of Rule 16 to receive one peremptory extension of 120 days, whether it be for good cause or no cause whatsoever. Also, if the trial judge wants to require the attorneys to be present for a case management conference to provide information that might be of assistance to the Court in the preparation of the scheduling order, Rule 16 should also provide that the trial Court allow the attorneys to participate by telephone as is the practice in federal court.

        • I think those are real concerns, David. A busy solo might literally have trials already set for every available date in the 12-18 mo range. What then?

          • David Frazier

            That’s why I propose at least one peremptory extension to a side. However, it would be a clear abuse of discretion if a trial judge denied an extension for good cause if a lawyer has a previous schedule conflicts. Even the feds honor prior commitments.

            • You are assuming continuances are still even allowed.

              “Upon motion of the parties and good cause shown or by order of the court, the deadlines required by subsections (a)(1)(B) – (G) may be modified.”

              Sounds like the (a)(1)(A) deadline — the trial setting — may *not* be modified.

              • David Frazier

                Yep. Reform for the sake of reform. . . .

  • JWGjr

    i would think the defense bar will oppose this change?

    • I’m just waiting for someone to tell me how this is even mathematically possible, given the # of judges & the criminal docket.