On December 1, 2009, sweeping changes in computing time under the federal rules of civil procedure, appellate procedure, bankruptcy procedure, and criminal procedure took effect. Because the Ohio procedural rules — and, in fact, the procedural rules of most state courts — have not changed, attorneys who practice in both federal and state courts must beware.
If you practice in federal court, you will need a new copy of the Federal Rules of Civil Procedure. On December 1, sweeping changes in computing time under these Rules took effect. The Rule changes also include changes to the Rules of appellate procedure, bankruptcy procedure, and criminal procedure. You may access the various proposed amended Rules here. The proposed Rules were not blocked or modified by Congress and, hence, became law on December 1, 2009. A simplified listing of the Rules that have been amended is available here.
The amended Rules will apply to all actions filed after December 1, 2009, and to all actions pending on December 1, 2009, "insofar as just and practicable."
The amendments attempt to reduce the complexity and risk of error in computing time under the Federal Rules, primarily by changing to a “days are days” approach to computing time. The amended Rules, thus, eliminate the prior method of counting, which omitted intermediate weekends and holidays sometimes (when the time period was short), but not always. Under the new Rules, all days — including weekends and holidays — are counted regardless of whether the time period is long or short.
This change to a "days are days" approach should go a long way toward making computation of time simpler, less complicated, and less risky under the Federal Rules. It will, however, introduce vertical complexity. That is, the means of computing time in federal court will now vary from that in state court in many states. Ohio and many other states follow the prior computation method of omitting weekends and holidays when the time period is shorter, but not when it is longer. Thus, attorneys who practice in both federal and state court will now have to use different methods of counting in the different courts. This is by no means an insurmountable hurdle, but it is certainly something to be aware of.
Among other changes, the amended Rules also (1) lengthen shorter time periods to ensure that, under the new "days are days" approach, no time period is shortened; and (2) implement a preference for counting time periods in multiples of seven when a time period is shorter than 30 days, so that most time periods will end on a weekday, rather than a weekend.
The amended Rules also make some changes that are unrelated to time computation, including changing some time periods to make them more "reasonable." For example, under the amended civil Rules, parties will now have 28 days, rather than 10 days, to file post-judgment motions, including motions for new trial and renewed motions for judgment as a matter of law (JNOV). Rulemakers included these changes because 10 days proved to be an unrealistically short time period to prepare and file these and other post-trial motions.
As noted above, there are a number of changes to the appellate, bankrutpcy, and criminal procedural Rules as well. Appellate deadlines can often be jurisdictional, so particular attention to these Rule changes is advisable. A number of statutes relating to appellate deadlines were amended by Congress to conform to changes in the appellate Rules. The amended statues also have an effective date of December 1, 2009. The amended statutes, included in H.R. 1626, can be accessed here.
Each set of amended Rules that became effective on December 1, 2009, also included additional provisions unrelated to time computation. I will address the other changes in the federal rules of civil procedure in a later posting.
