Amendments to the federal rules of civil procedure

A Legal Update summarizing the December 1, 2023 amendments to the Federal Rules of Appellate Procedure, Federal Rules of Civil Procedure, and Federal Rules of Evidence. Practical Law Litigation updated all affected maintained litigation resources as of December 1, 2023, to help counsel immediately account for the amendments.

Several amendments to the Federal Rules of Appellate Procedure (FRAP), Federal Rules of Civil Procedure (FRCP), and Federal Rules of Evidence (FRE) became effective on December 1, 2023.

Clarifying that the party proffering an expert must show by a preponderance of the evidence that the expert and their opinion meet FRE 702's qualification, reliability, and relevance standards.

Requiring courts (not juries) to determine that an expert's opinion reflects a reliable application of the expert's methodology to the facts of the case.

Amended FRE 702 seeks to address rulings about the standard of admissibility where courts have either applied too liberal of a standard or failed to identify the standard they were applying. In addition, the amendments make clear that challenges to an expert’s methodology or the basis of an expert’s opinion are questions of admissibility and not weight. Courts must assess issues of relevance and reliability and not delegate them to the jury. (FRE 702; FRE 702 advisory committee's note to 2023 amendment.)

Rule

Amendment

FRAP 2
(Suspension of Rules)
(new)

Authorizes the federal courts of appeals to suspend all or part of the FRAP (except statutory time limits to start an appeal) when the US Judicial Conference declares an Appellate Rules emergency due to:

public health or safety concerns; or

limited physical or electronic access to a court.

FRAP 4(a)
(Time to Appeal)

Technical amendment to ensure FRAP 4(a) operates properly with FRCP 87(c)(2) (new Emergency Civil Rule 6(b)(2)).

FRAP 26(a)(6)
(Legal Holidays)

Technical amendment adding Juneteenth National Independence Day to the list of legal holidays.

FRAP 45(a)(2)
(Legal Holidays)

Technical amendment adding Juneteenth National Independence Day to the list of legal holidays.

FRCP 6(a)(6)
(Legal Holidays)

Technical amendment adding Juneteenth National Independence Day to the list of legal holidays.

FRCP 15(a)
(Amended Pleadings)

Clarifies that the time to amend a pleading as a matter of course runs continuously until 21 days after service of a responsive pleading or pre-answer motion.

FRCP 72(b)(1)
(Magistrate Judges)

Permits district court clerks to serve a copy of a magistrate judge's recommended disposition using any means authorized by FRCP 5(b) (instead of only by first-class mail).

FRCP 87
(Civil Rules Emergency) (new)

Authorizes the US Judicial Conference to declares a Civil Rules emergency due to:

public health or safety concerns; or

limited physical or electronic access to a court.

Provides for two new Emergency Rules that become effective during a Civil Rules emergency:

Emergency Rule 4, which authorizes district courts to permit service of a summons by any "method that is reasonably calculated to give notice."

Emergency Rule 6(b)(2), which authorizes district courts to extend the time to file a post-judgment motion.

FRE 106
(Remainder of or Related Statements)

Permits the admission of completing evidence over hearsay objections.

Extends the rule to all completing statements, including oral statements that have not been recorded and statements made through conduct or sign language.

FRE 615
(excluding witnesses)

Clarifies that when excluding a witness from the courtroom, a court also may prohibit the witness from learning about or obtaining trial testimony.

Clarifies that the exception from exclusion for entity representatives is limited to one designated representative per entity.

FRE 702
(expert witnesses)

Clarifies that the party proffering an expert must show by a preponderance of the evidence that the expert and their opinion meet FRE 702's qualification, reliability, and relevance standards.

Requires courts (not juries) to determine that an expert's opinion reflects a reliable application of the expert's methodology to the facts of the case.

PLC US Federal Litigation, PLC US Law Department