2024 Amendments to the Federal Rules

In April, the Supreme Court sent to Congress amendments to the Federal Rules of Civil Procedure, the Federal Rules of Evidence, and the Federal Rules of Appellate Procedure. The amendments are effective as of December 1, 2024.

Federal Rules of Civil Procedure.  The 2024 amendments to the Federal Rules of Civil Procedure modified Rule12.

Rule 12 sets the time period for responding to complaints. Current Rule 12(a)(1) sets the general time period for responding to a complaint at 21days, but recognizes that Congress could set a different time period for responding to certain categories of action.  Current Rule 12(a)(2) sets the time for responding to a complaint at 60 days for the United States, United States agencies, and United States officers or employees acting in their official capacity, but does not explicitly contemplate Congressional modification of that time period. Similarly, current Rule 12(b)(3) sets a 60-day response time for United States officers or employees sued in an individual capacity for acts or omissions in connection with federal duties but doesn’t contemplate Congressional modification of that response period.

The 2024 amendment to Rule 12 simply moves the provision recognizing Congress’s right to establish different time periods for responding to specified categories of action to the preamble, making it clear that this right applies to any of the three types of defendant listed in Rules 12(b)(1) – (3). The advisory committee notes recognize that such modifications already occur, citing the Congressionally-established period of time for the United States to respond to a complaint brought under the Freedom of Information Act. Thus, the effect of the 2024 amendment to Rule 12 is to clarify that the Rule is not intended to preempt Congress’s authority to set a different response period for specific causes of action.

Federal Rules of Evidence.  The 2024 amendments to the Federal Rules of Evidence are more substantial, creating new Rule 107 and modifying Rules 613, 801, 804, and 1006.

New Rule 107 addresses “illustrative aids,” the new rules name for demonstrative exhibits. Rule 107(a) authorizes the use of illustrative aids to help the jury or judge understand the evidence or argument if the aid’s utility in assisting the fact-finder’s comprehension is not substantially outweighed by the danger of unfair prejudice, confusion, misleading the jury, undue delay, or wasting time. Rule 107(b) explains that illustrative aids are not “evidence,” and must not be provided to the jury during deliberations unless all parties consent or the court, for good cause, so orders. However, pursuant to Rule 107(c), illustrative aids should be entered into the record when practicable. Finally, Rule 107(d) clarifies that summaries, charts, or calculations admitted as evidence to prove the contents of voluminous admissible evidence are not illustrative aids covered by Rule 107, and instead are addressed by Rule 1006.

The advisory committee notes list as examples of illustrative exhibits: drawings, photos, diagrams, video depictions, charts, graphs, and computer simulations. These illustrative aids may not be offered to prove a fact in dispute. Rather, they may be offered for the “narrow purpose” of helping the jury or judge understand what a party or witness is communicating to them through testimony, documents, or argument. Because illustrative aids are not evidence, the advisory committee notes explain, they are generally not subject to discovery. However, many courts impose a deadline for disclosure of illustrative aids in advance of trial to allow opposing parties to prepare for them. Finally, the advisory committee notes state that, if the court does allow the jury to review an illustrative aid during deliberations, the court must, upon request, instruct the jury that the illustrative aid is not evidence and that the jury may not consider the illustrative aid as proof of any fact.

F.R.E. 613(b) covers the use of extrinsic evidence of a witness’s prior inconsistent statement. The 2024 amendment to Rule 613(b) requires that the witness receive an opportunity to explain a prior inconsistent statement before the introduction of extrinsic evidence of that prior statement. The amendment does allow the judge to allow the extrinsic evidence to be introduced without first giving the witness an opportunity to explain if circumstances warrant.

F.R.E. 801(d) contains a list of statements that are not considered hearsay. Subsection (2) provides that an opposing party’s statement is not considered hearsay if offered against that party. The 2024 amendment adds a sentence at the end of Subsection (2) reading “If a party’s claim, defense, or potential liability is directly derived from a declarant or the declarant’s principal, a statement that would be admissible against the declarant or the principal under this rule is also admissible against the party.”

The advisory committee note explains that the purpose of the amendment is to provide that when a party stands in the shoes of a declarant or the declarant’s principal, hearsay statements made by the declarant or principal are admissible against the party. The notes provide an illustrative example, stating that if an estate is bringing a claim for damages suffered by the decedent, any hearsay statement that would have been admitted against the decedent as a party-opponent under this rule is equally admissible against the estate.

Rule 804 contains a list of exceptions to the hearsay rule that apply when the declarant is unavailable to appear as a witness. Rule 804(b)(3) provides the exception for statements against the declarant’s interest, and 804(b)(3)(B) specifically addresses such statements in criminal cases. The amendment instructs the court to consider the “totality of circumstances” when determining whether to admit a statement against interest in a criminal proceeding.

Rule 1006 addresses summaries of evidence. The 2024 amendments to Rule 1006 correct confusion by the courts and clarify the differences between illustrative aids covered by Rule 107 and summaries covered by Rule 1006. In contrast to illustrative aids, summaries of admissible evidence are themselves admissible and may be used to prove contested facts. In fact, the advisory committee notes suggest that summaries must be admitted as evidence and the jury may not be instructed not to consider summaries.

Federal Rules of Appellate Procedure.  The amendments to the Federal Rules of Appellate Procedure modified Rules 32, 35, and 40, and the Appendix of Length Limits. The main crux of these amendments is to combine petitions for reconsideration by a panel (formerly covered by Rule 35) and reconsideration by the court en banc (covered in Rule 40) into one Rule. Accordingly, the 2024 amendments eliminate Rule 35 and move the contents of Rule 35 into Rule 40. The amendment to Rule 32 and the Appendix of Length Limits simply eliminate references to Rule 35 and adjust references to Rule 40.

The main purpose of consolidation of these related reconsideration provisions in a single rule to advance the convenience of the parties and counsel. The new language also emphasizes that rehearing en banc is not favored and that rehearing by the panel is the ordinary means of seeking reconsideration of a panel decision. Parties may also seek both forms of reconsideration, and should do so in a single petition.

Amended Rule 40 also contains a new provision, located in Rule 40(f). That provision authorizes the panel issuing the original decision to take further action while the petition for rehearing is pending. Thus, if the panel concludes that it can fix a problem identified in a petition for rehearing, it is free to do so. The Rule recognizes that the party seeking reconsideration may not be satisfied with the panel’s cure. It provides that, if the petition requested reconsideration en banc, the petition will remain pending. If the petition sought reconsideration by the panel, the petitioner may file a new petition for reconsideration following the panel’s curative action.

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Steve is one of the authors of The Federal Litigator, a monthly publication from Thomson Reuters that reports on cases of general interest to those who practice in the federal courts. Each fall, The Federal Litigator reports on amendments to the federal court rules. This article is an excerpt from the November 2024 edition of The Federal Litigator that is reprinted with the publisher’s permission (© 2024 Thomson Reuters). Further reproduction of any kind is strictly prohibited. For further information about this publication, please click here, or call 800.328.9352. Individual case summaries can be accessed through Westlaw. Steve is also one of the authors of the Federal Civil Rules Handbook, an annual publication from Thomson Reuters containing detailed, practical commentary providing a blueprint for the application of the Federal Rules of Civil Procedure and related jurisprudential concepts. To purchase the Handbook, please click here.