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Law School Case Brief

In re Proposed N.H. Rules of Civil Procedure - 139 N.H. 512, 659 A.2d 420 (1995)


N.H. Const. pt. II, art. 73-a, provides that the chief justice of the state supreme court shall, with the concurrence of a majority of the supreme court justices, make rules governing the practice and procedure to be followed in all courts in the state. The supreme court's supervisory and rulemaking authority over the courts in the state derives primarily from the state constitution, pt. II, art. 73-a, and from the common law. When the law commands a thing to be done, it puts in requisition the means of executing its command. The judiciary is in charge of the courtroom. The power is a necessary incident to the exercise of judicial power inherent in the functioning of the court system.


The New Hampshire Bar Association (NHBA) and the Supreme Court Advisory Committee on Rules (Committee) worked together to produce, propose and recommend  a new system of rules of civil procedure for the state of New Hampshire. The NHBA and the Committee based their proposed rules on the Federal Rules of Civil Procedure. After the Supreme Court of New Hampshire invited NHBA members to comment, the court then prepared to consider the proposed rules for adoption. 


Should the state supreme court grant the Committee's proposal to adopt the new rules of civil procedure?




The state supreme court declined to adopt the proposed new rules of civil procedure that the NHBA and the Committee had recommended. The court observed that the current system was unwieldy in some respects, but noted that any perceived need for change could be addressed either by a reorganization of provisions or by amendment rather than by the current rules' wholesale displacement. The court was not convinced that the present system failed to bring results or had ceased to work. The court conceded that the present system imposed a burden on New Hampshire practitioners, especially those new to the practice of law, but considered the burden to be a reasonable one. The court was not convinced that a full revision would make the process any simpler for new lawyers. Stability, even in procedure, was highly desirable. Basing the state's rules on the federal rules would render variable and uncertain law.

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