Natasha Wrae, President
Pima County Bar Association
177 N. Church Ave., Suite 101
Tucson, AZ 85701 [email protected]
The Pima County Bar Association Ad Hoc Civil Rules Committee would discourage use of “should’ in the Rules because it is ambiguous as to the nature of the duty created by the Rule. If the rule requires an action, then “must” is appropriate. If the action is discretionary, then “may” is appropriate. “Should” implies a moral obligation but does not expressly state whether an action is discretionary or mandatory. If discretionary, then it would be better to use words that express that intention, such as “may,” “it is within the court’s discretion to …” or even “the court is encouraged to …” An alternative, though less preferable to our committee, would be to define the various uses of “should,” “must,” “may” and “shall” in a Definitions Provision or in “Committee Notes” to the Revised Rules.
The Task Force’s proposed revisions seem to attempt to eliminate “shall,” but it still appears in some of the proposed revised rules. The PCBA Committee considers “shall” to be synonymous with “must.” For the sake of consistency and clarity, however, if the trend is toward substituting “must,” then it would be better not to use “shall” unless, for some reason that can be clearly articulated, the meaning of the rule requires it.
Another concern is that the titles to the proposed revisions capitalize “principal” words in each heading/subheading. The Committee suggests it would be preferable and less confusing to keep the existing format which capitalizes the first word only.
The Committee suggests a global review of the use of “stipulate/stipulation” and “agree/agreement” to make sure that the intended meaning is conveyed by the term that has been chosen for use. In our discussion, “ stipulate/stipulation" was felt to imply a writing, which would be consistent with Rule 80(d). In some usages, “agree/agreement” was felt to be less pretentious, more easily understood, and perhaps more accurate if a written stipulation was not required by the context. The task force appears to follow this line of thinking in places. For example, in revised ARCP 30(b)(1), the task force changes “Absent a stipulation of all parties…” to “Unless all parties agree…”. However, in our Committee’s discussion this afternoon, the majority sentiment was that stipulation” was clearer than “agreement” in the context of that rule.
Attached are the comments and proposed changes offered by the Pima County Bar Association Ad Hoc Civil Rules Committee, Rules 1 through 37 and, separately, Rules 38 to end.