IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO APR 8(b) AND ER 701

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ORDER NO. 25700-A-793

     The Washington State Bar Association having recommended the adoption of the proposed amendments to APR 8(b) and ER 701, and the Court having considered the amendments and comments submitted thereto, and having determined that the proposed amendments will aid in the prompt and orderly administration of justice;

     Now, therefore, it is hereby

     ORDERED:

     (a) That the amendments as attached hereto are adopted.

     (b) That the amendments and comment from the Superior Court Judges' Association on ER 701 will be published in the Washington Reports and will become effective on September 1, 2004.

     DATED at Olympia, Washington this 8th day of July 2004.

	Alexander, C. J.
Johnson, J.	Bridge, J.
Madsen, J.	Chambers, J.
	Owens, J.
Ireland, J.	Fairhurst, J.

     (b) Exception for Particular Action or Proceeding. A member in good standing of the Bar of any other state or territory of the United States or of the District of Columbia, who is a resident of and maintains a practice in such other state, territory, or District, may appear as a lawyer in the trial of any action or proceeding only (i) with the permission of the court or tribunal in which the action or proceeding is pending, and (ii) in association with an active member of the Washington State Bar Association, who shall be the lawyer of record therein, responsible for the conduct thereof, and present at all proceedings unless excused by the court or tribunal.

     (1) An application to appear as such a lawyer shall be made by written motion to the court or tribunal before whom the action or proceeding is pending, in a form approved by the Board of Governors, which shall include certification by the lawyer seeking admission under this rule and the associated Washington lawyer that the requirements of this rule have been complied with. The application motion shall be heard by the court or tribunal after such notice to the Washington State Bar Association as is required in part (2) below, together with the required fees, and to adverse parties as the court or tribunal shall direct. The court or tribunal shall enter an order granting or refusing the application motion, and, if the application motion is refused, the court or tribunal shall state its reasons.

     (2) The lawyer making the motion shall submit a copy of the motion to the Washington State Bar Association, accompanied by a fee in each case in an amount set by the Board of Governors with the approval of the Supreme Court. The associated Washington counsel shall be jointly responsible for payment of these fees. The Washington State Bar Association shall maintain a public record of all motions for admission pursuant to this rule.

     (2) (3) No member of the Bar Association shall lend his or her name for the purpose of, or in any way assist in, avoiding the effect of this rule.

     (c) Exception for Indigent Representation. [No change].

     (d) Exception for Educational Purposes. [No change].

     (e) Exception for Emeritus Membership. [No change].

     (f) Exception for House Counsel. [No change].

     (g) Exception for Military Lawyers. [No change].

     In several recent cases the Washington Supreme Court has cited section 401 of the Model Code of Evidence as controlling the admission of a lay opinion testimony in Washington. See Church v. West, 75 Wn.2d 502, 452 P.2d 265 (1969); 5 R. Meisenholder, Wash. Prac. section 341 (1975 Supp.). Section 401 would usually yield the same result as decisional law predating it. Some examples of admissible opinion testimony are: the speed of a vehicle, the mental responsibility of another, whether another was "healthy", the value of one's own property, and the identification of a person. Meisenholder section 341 (1975 Supp.). The 2004 amendment is not intended to affect the typical examples of admissible opinion testimony cited in the preceding sentence.

     Differences between existing Washington law and rule 701 are largely matters of form rather than substance. Although Model Code section 401 assumes that the witness may generally testify in terms of inference and opinion, the court may require the testimony to be stated in nonabstract detail if it finds that the witness is capable of doing so satisfactorily and that the statement by the witness of his conclusory inferences might mislead the trier of fact. Rule 701 approaches the problem in reverse. It assumes that the witness will give his testimony by stating his observations in as raw a form as practicable, but permits him to resort to inferences and opinions when this form of testimony will be helpful. Both rules give the trial court a wide latitude of discretion. As a practical matter, rule 701 is unlikely to change Washington law. See Meisenholder section 343.

     The subject matter of rule 701 is analyzed in greater detail in Powell & Burns, A Discussion of the New Federal Rules of Evidence, 8 Gonz. L. Rev. 1, 14-16 (1972).

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

     Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

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