Previous month:
November 2011
Next month:
January 2012

The restyled Federal Rules of Evidence became effective on Dec. 1

The Federal Rules of Evidence were restyled, and the new version became effective on December 1, 2011.  Here is a link to the restyled version of the Rules, which is defnitely worth reading.   As a sample, the restyled version of Fed. R. Evid. 702 is as follows:

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in the
form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and
methods; and

(d) the expert has reliably applied the principles and
methods to the facts of the case.

A copy of the Report of the Advisory Committee can be found here, and discusses in some detail the contributors to the effort to make the Rules more easily understandable.  Among other things, Bryan Garner's legal style guide was used in the rewrite of the Rules.

As reported by, there are also amendments to the Federal Rules of Appellate, Bankruptcy, and Criminal Procedure which also became effective on Dec. 1.  

Congress amends diversity jurisdiction statute

Who says it is a do-nothing Congress?  Congress passed the Federal Courts Jurisdiction and Venue Clarification Act of 2011 on 12/2/2011, which now awaits the President's signature.  Among other things, this statute makes significant adjustments to diversity jurisdiction. 

The amendments are helpful in a case involving multiple defendants, because the statute resolves a disagreement between the Circuits.  Every defendant will now get 30 days to remove, however, the defendants will still need to be unanimous as to the removal decision.

Where removal is based on federal question jurisdiction, there is a provision that requires the severance and remand of state claims not within original or supplemental federal jurisdiction.  That provision requires some caution, because removal could result in the client having to defend two lawsuits instead of one. 

A summary of the bill is available at this post on ProfsBlawg.

Thanks to the Civil Procedure and Federal Courts Blog for the link. 

Statutory waiver of insurer's late notice defense in Virginia

I've previously posted about Va. Code § 38.2-2226, which states that in order to disclaim coverage based on an insured’s breach of a policy condition, an insurer has to give notice to the claimant or claimant’s counsel within 45 days after discovery by the insurer of the breach of the condition. Failure to give such notice within 45 days will result in a statutory waiver of the defense. 

The importance of compliance with this statute cannot be overstated in a Virginia claim involving a potential late notice defense. 45 days has a way of slipping past.

This same statute came up in a relatively recent decision from the Virginia Supreme Court, Dabney v. Augusta Mutual Insurance Co., which is discussed here.

The Dabney opinion was also usefully discussed in Zalma on Insurance, from a different perspective.