Adam B. Campbell 2014-04-01 00:13:02
New Rules Restrict Motions to Strike and Revamp Trial Settings The Arizona Supreme Court recently issued several amendments to Arizona’s Rules of Civil Procedure. While the amendments range more broadly than can be covered here, litigators should be particularly aware of two sets of amendments: one set restricting motions to strike and another set refining the civil case management and trial setting systems. Beginning Jan. 1, 2014, Rules 7.1(f) and 56(c)(4) now severely limit motions to strike. The new rules explicitly allow written motions to strike only when authorized by statute or other rule or by court order. An authorized motion to strike must not exceed two pages, and the response also must not exceed two pages. The response must be filed within five days, and no reply may be filed without court authorization. Motions to strike no longer are to be used for written objections to evidence. Rather, objections to the admissibility of evidence offered in a written motion should be made in the response, and objections to evidence offered in a response belong in the reply. Statements of fact under Rule 56 also may include such objections. Objections to evidence in a reply may be submitted in a separate memorandum of no more than three pages, without further response unless requested by the court. In sum, the new rules limit both the circumstances in which parties may file motions to strike and the briefing on such motions. The Arizona Supreme Court also extensively revised the rules applicable to pretrial case management and trial settings, with most of the changes codified in Rule 16(a)(b)(c). Generally, these amendments apply to cases filed on or after April 15, 2014. The new rules also apply to cases filed before that date when the previous case management rules have not yet been employed, or when the judge exercises discretion to apply them. Certain types of cases will retain their own case management tracks under the new rules. These matters include medical malpractice cases, cases subject to compulsory arbitration, cases certified as complex, and cases where a party seeks certain forms of relief other than damages. In all other civil actions, the parties must confer on case management no later than 60 days after the filing of the answer or 180 days after the filing of the action, whichever occurs first. Fourteen days after conferring, the parties must file a joint report and proposed scheduling order. The parties must certify that they conferred. All attorneys of record and unrepresented parties bear joint responsibility to confer, to attempt to agree on a proposed schedule, and to file the report and order. Rule 84 now includes forms for the joint report and proposed scheduling order. Next, the court shall enter a scheduling order as soon as practicable, which must either set a trial date, or a date for a conference at which a trial date will be set. No trial can be set unless the parties certify that they have participated, or will participate, in a settlement conference or private mediation. Dates of filings or hearings in a signed order may be modified only for good cause and with the court’s consent. Trials similarly may be postponed only for good cause. Perhaps the most obvious change replaces the old active and inactive calendars with a new dismissal calendar. Under the new Rule 38.1(f), the clerk of court or court administration shall place on the dismissal calendar any case in which a joint report and proposed scheduling order have not been filed within 270 days of case commencement. (Medical malpractice cases and compulsory arbitration cases have their own separate requirements.) If a case remains on the dismissal calendar for 60 days, the case shall be dismissed without prejudice for lack of prosecution unless a joint report and proposed scheduling order are filed, or the court grants a motion demonstrating good cause and continues the matter on the dismissal calendar for a specified time. Under the amendments, the disclosure and discovery sanctions of Rule 37(b)(2) apply if an attorney or party fails to participate in case management in good faith. In addition to the previous good cause requirements, a party wishing to disclose evidence after a deadline now also must show that the evidence was disclosed as soon as practicable after its discovery. Sanctions for disclosing evidence after the applicable deadline explicitly include exclusion of evidence. As noted in the comments, the amendments to the civil case management procedures aim to create confidence in a predictable trial calendar. The rules also seek to minimize the need for trial continuances while allowing the trial court to supervise the management of cases between filing and resolution. The new rules incentivize the parties and the trial courts to make the best use of their time and the court’s calendar in moving their cases either toward trial or to resolution without trial. Most importantly, these changes signify a shift in judicial attitude toward applying uniform case management, minimizing attorney squabbling, and reinforcing a commitment in favor of settlements. Trial lawyers should be aware of these amendments, as trial judges certainly have begun to enforce them. Adam Campbell is a partner in the law firm of Rai & Barone, P.C. His firm represents clients in the practice areas of construction defect litigation, specializing in subcontractor defense, general liability, business transactions, commercial litigation and insurance defense of all types. The firm has extensive arbitration, mediation and trial experience. Rai & Barone’s goal is to provide expeditious, affordable and effective representation to its clients. Adam can be reached at (602) 476-7100 or via email at firstname.lastname@example.org.
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