On January 25th the Supreme Court’s Advisory Committee on Rules of Civil Procedure approved amendments to Rule 35 that make clear a report is required for all medical examinations and that the examination must be done during fact discovery. Here is the text of the proposed rule.

Read my earlier comments here and here.

The recommended amendments now go to the Supreme Court for review. It’s unlikely that the Court will make further changes or reject the proposed amendments but of course it might. However, assuming no further bumps in the road, the amendments will be effective as of May 1st.

A suggestion- how not to win friends and influence people

Any rules amendment goes through a process of careful consideration and vetting. (For example, read this.) That includes comments from the public and members of the bar and sometimes–as in this case–more than once. I sat on the rules committee for years and was occasionally appalled at the lack of judgment displayed by some lawyers in submitting their comments. Here’s an example from the recent Rule 35 comments:

From a defense lawyer: “Just a comment about this rule change from the defense perspective that you can share with the Rules Committee, who are mostly commercial litigators or judges and don’t work with this rule.”

From a plaintiffs’ lawyer: “As written, it appears that someone on the defense bar closely linked with the insurance industry has added some very favorable pro-insurance/pro-defense language to URCP Rule 35. If this proposal stemmed from recommendations from a defense attorney, sitting on the rules committee, who is in-house counsel for a major insurance company, I would request that the rules committee more fully analyze this major change from former URCP Rule 35.”

As you might expect, these sorts of comments do nothing to advance the point the writer wishes to press. They tend to have just the opposite effect. These are dedicated and intelligent lawyers and judges donating their time to come up with the best possible expression of Rule 1– “the just, speedy, and inexpensive determination of every action.” Denigrating the experience or objectivity of the committee members is hardly the way to be taken seriously. As Trump might tweet, Not Smart!

Salt Lake Personal Injury Attorney