CONNECTICUT RULE MAKING: A POSITIVE CHANGE

On May 9, 1995 the Rules Committee of the Superior Court published in the Connecticut Law Journal proposed changes to the Rules of Practice in the Superior Court. On May 23, 1995 the Advisory Committee on Appellate Rules published proposed revisions to the Rules of Appellate Practice. Both sets of proposals enjoyed extensive participation by the bar, and several proposals which originated by the bar were included in the proposals. The Superior Court proposals include rules on mandatory continuing legal education and the end of oral argument at short calendar on non-dispositive motions. They also include a rule which makes it difficult to exclude the public and seal files; mandate insurance personnel attendance or availability at pretrials; and, most important for the trial practitioner, a complete revision of §220.

The Appellate Rules proposed by the Advisory Committee have been rewritten for clarity, and include many changes which have been urged by members of the bar for several years. These include a complete rewriting of the rules applicable to appeals from judgments disposing of parts of issues or parts of cases; the adoption of time requirements for motions for articulation; the reinstitution of cross-petitions for certification; and, most important for the trial lawyer, the abolition of the rule enunciated in Pietrorazio v. Santopietro, 185 Conn. 510 (1981) mandating the filing of a motion to set aside verdict to preserve claims of error. This rule, more than any other appellate rule since the major changes in appellate practice in the 1970’s, has inflicted havoc on litigants and lawyers alike, and in civil jury actions for money damages truly moved the appeal time up to five days from rending of the verdict, because if the motion to set aside was not filed within that period of time only plain error review was permitted.

In the past, the exercise of rule making by the judges of the Superior Court was criticized severely, most prominently by the Board of Editors of the Connecticut Law Tribune. Their criticism was directed at the insular and uninformative rule making process, and the perceived negative and uninviting attitude towards participation by the bar. Indeed, one judge who chaired the Rules Committee in the recent past let it be known that "I never meet with lawyers" about the rule making process.

The criticism also addressed the lack of a means for formal professional participation in the drafting process, as well as the failure of the drafters to explain the purpose or effect of proposed or promulgated changes.

The rules published on May 9 and May 23, 1995 signal a significant change and reflect the steps taken to remedy the shortcomings of the Connecticut rule making process. In the recent past, the Committee has adopted a practice of a short explanation after each rule stating the purpose of the rule. The commentary is short and to the point, but nevertheless serves the purpose of educating the lawyers and the judges who are not on the Rules Committee about the change, and creates a legislative history useful to the court and counsel when it is necessary to interpret a rule.

The change most significant to the trial practitioner is the use of advisory committees, such as was used in the proposals for appellate practice, and task forces. These task forces have been divided by subject matter, and headed by the Chief Administrative Judge responsible for that area of practice. Each task force, depending on its focus, is composed of judges, attorneys from private practice, state’s attorneys, public defenders, and attorneys employed by the insurance industry. There has been a task force on juvenile rules, criminal rules, family law, and civil rules.

The task force that we have direct knowledge of and participation in is the task force on civil rules. It is a sub-committee of a sub-committee of this task force, consisting of representatives of CTLA, CDLA, the Litigation Section of CBA, and the University of Connecticut and Quinnipiac Law Schools, which, under the supervision of Judge George Thim, was able to submit a joint proposal for the revision of §220 which has been included in the proposed rules. That group continues to meet, and is now studying revisions in the standard disclosures and proposals for the adoption of standard disclosures applicable to premises liability cases.

The participation of the bar has been positive and enthusiastic. For the first time in memory, lawyers have been given an opportunity to have input into the rule making process. Cynics among the lawyer participants were convinced that the proposal that the lawyers had agreed upon for the revisions of §220 would never make its way into the rules of practice. The inclusion of the joint proposal for the revision of §220 into the proposed Rules published May 9, 1995 has befuddled the cynics and delighted the rest of the bar.

The proposals concerning the Rules of Appellate Procedure published May 23, 1995 also represent a departure from past practice. It is the first time, we believe, that an advisory committee on court rules has published proposed rules in the Connecticut Law Journal. Moreover, the revisions of the Rules of Appellate Practice make them much more user-friendly, a phenomenon we believe is attributable not only to Justice Berdon and Judge Edward O’Connell, Co-Chairs of the Advisory Committee, but to the participation of experienced appellate counsel and Professor Colin Tait.

We see all this as a positive change in the rule making process in this state. We congratulate and thank Supreme Court Justice David Borden, Chairman of the Rules Committee.