June 16, 2014 § 4 Comments
… to be replaced by a pared-down version. The MSSC order entered June 12, 2014, is here. The order includes the text of the new comments.
You should note that these are not posted for comment. They are posted to give notice that the deed is done. The new comments take effect July 1, 2014.
In the interest of full disclosure, I am on the committee that crafted the new comments. The goal was to eliminate archaic case citations, language that merely repeated the rule, and references to pre-rules practice that are no longer helpful or comprehensible by attorneys who have been in practice fewer than 32 years (the period of time that the MRCP has been in effect). The language of the remaining material was clarified and made gender-neutral. I can assure you that the process was thorough — it took around three years — and the discussions were intense. Every constituent group of the bar and judiciary was represented. Where it was felt that a particular comment was needed for lawyers to have a basic understanding of a rule, careful attention was give to drafting language that would elucidate the rule. Some rules that have generated a large body of case law went uncommented.
If you find this development traumatizing, I suggest you do as I will do, and keep a couple of copies of the former comments handy. You’ll never know when they just might have that wee modicum of authority that you need to tip the scales in your client’s favor.
On a related note, I have heard from several sources that there was a growing sentiment among the MSSC to do away with the comments altogether because some have tried to use comments to try to expand the meaning of the rules. This latest order seems to be a middle route.