NOTE: THE SUPREME COURT ACCEPTED REVIEW AND AFFIRMED THIS OPINION

The court tells us that this is an original issue about the substitution of real parties in interest under Rule 17(a).

Preston, while in bankruptcy, died in Kindred Hospital. His sisters sued it for malpractice. The hospital moved to dismiss, arguing that the bankruptcy trustee owned the claim. The sisters admitted this and moved under Rule 17(a) to join or substitute the trustee as plaintiff.

That rule says that “no action shall be dismissed on the ground that it is not prosecuted in the name of the real party interest until a reasonable time has been allowed after objection for . . . joinder or substitution of the real party in interest.” But the trial court granted the dismissal, reasoning that the rule must refer to situations is which the real party in interest is, basically, unknown or uncertain. That is the gloss that the federal rule has acquired and it is what a State Bar Committee note, parroting the corresponding federal note, suggests.

The Court of Appeals reverses. It says that this is an issue of first impression. What it apparently means is that 17(a) has never been brought up on these exact facts, for it then goes on to cite, among others, its own earlier case holding – in a case where the real-party-in-interest wasn’t unknown or uncertain – that the trial court can’t immediately dismiss without allowing time for joinder or substitution. The case suggested that prejudice might be a factor but that wasn’t argued here so the court “declines to consider” whether it is or not.

We’ve waited for a case like this. We knew one had to come. The practice of making, printing, and paying any attention to State Bar Committee notes is a lousy idea. The notion that the committee members are experts on a particular rule or subject matter – or, for that matter, on any – is a flattering myth; as here, they’re as often as not cribbing from another source, one that might or might not itself have been more knowledgeable than they and one that they might or might not have given much consideration to. And to the extent that they make a substantive, original contribution, they shouldn’t. The language required to understand what the rule means belongs in the rule. The rest belongs in the rulings; judges should tell us what rules mean, not anonymous nobodies trying to steer the law in one direction or another. (Yes, we’re anonymous, and you can assume that we’re nobodies, but we’re not trying to make law or decide your case.) As for strictly factual/historical matters, lawyers and judges can read; whether a 1970 rule was intended to change, or not, the result of a 1966 opinion they can figure out by seeing that the later rule differs, or not, from the earlier case.

Why are the notes made? Because they’re printed. And why are they printed? Mostly to stroke the egos of the committee members. Have you ever met a member of a Bar committee (other than yourself, of course) whose ego needed to be stroked? Most need to be tied up in a box and kept in a cool, dark place.

(link to opinion)