If a judge conducting a hearing or trial is unable to proceed, any other judge may proceed upon certifying familiarity with the record and determining that the case may be completed without prejudice to the parties. In a hearing or a nonjury trial, the successor judge must, at a party's request, recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness.
Rule 63 was amended, effective March 1, 1990; March 1, 1994; March 1, 2011.
Rule 63 is derived from Fed.R.Civ.P. 63.
Rule 63 was amended, effective March 1, 1990, to follow the 1987 amendment to the federal rule. The amendment is technical in nature and no substantive change is intended.
Rule 63 was amended, effective March 1, 1994, to track the 1991 federal amendment by expanding the situations in which a new judge may take over a case. The amendment provides for substitution of a new judge during proceedings. Formerly, substitution was only allowed in cases of disability after the verdict was returned or findings of fact and conclusions of law were filed. To avoid injustice, the successor judge is required to certify familiarity with the record and to determine that the case may be completed before the judge without prejudice to the parties. This will necessarily require that there be available a transcript or a videotape of the proceedings prior to substitution.
Rule 63 was amended, effective March 1, 2011, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Sources: Joint Procedure Committee Minutes of January 28-29, 2010, pages 12-13; January 28-29, 1993, page 10; April 20, 1989, page 2; December 3, 1987, page 11; November 29-30, 1979, page 20; Fed.R.Civ.P. 63.