IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO CR 1, CRLJ 1, CR 5, CRLJ 5, CR 11, CRLJ 11, CR 15, CRLJ 15, CR 27, CR 28, CR 30, CR 50, CRLJ 50, CR 52, CR 59, CRLJ 59, CR 62, CrR 4.7 AND CrRLJ 4.7

) ) ) ) ) )

ORDER NO. 25700-A-823

     The Washington State Bar Association having recommended the adoption of the proposed amendments to CR 1, CRLJ 1, CR 5, CRLJ 5, CR 11, CRLJ 11, CR 15, CRLJ 15, CR 27, CR 28, CR 30, CR 50, CRLJ 50, CR 52, CR 59, CRLJ 59, CR 62, CrR 4.7 and CrRLJ 4.7, 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 will be published in the Washington Reports and become effective September 1, 2005.

     DATED at Olympia, Washington this 2nd day of June 2005.

	Alexander, C.J.
C. Johnson, J.	Chambers, J.
Madsen, J.	Owens, J.
Sanders, J.	Fairhurst, J.
Bridge, J.	J. M. Johnson, J.

     (b) Service - How Made.

     (1) - (6) Unchanged.

     (7) Service by Other Means. Service under this rule may be made by delivering a copy by any other means, including facsimile or electronic means, consented to in writing by the person served. Service by facsimile or electronic means is complete on transmission when made prior to 5:00 p.m. on a judicial day. Service made on a Saturday, Sunday, holiday or after 5:00 p.m. on any other day shall be deemed complete at 9:00 a.m. on the first judicial day thereafter; sService by other consented means is complete when the person making service delivers the copy to the agency designated to make delivery. Service under this subsection is not effective if the party making service learns that the attempted service did not reach the person to be served.

     (c) - (g) Unchanged.

     (h) Service of Papers by Telegraph. Any writ or order in any civil suit or proceeding and all the papers requiring service may be transmitted by telegraph for service in any place, and the telegraphic copy of such writ or order or paper so transmitted may be served or executed by the office or person to whom it is sent for that purpose and returned by him, if any return be requisite, in the same manner, and with the same force and effect in all respects as the original thereof might be, if delivered to him, and the officer or person serving or executing the same shall have the same authority and be subject to the same liabilities as if the said copy were the original. The original, when a writ or order, shall also be filed in the court from which it was issued, and a certified copy thereof shall be preserved in the telegraph office from which it was sent. In sending it, either the original or certified copy may be used by the operator for that purpose. [Rescinded.]

     (i) - (j) Unchanged.

     (b) Service - How Made.

     (1) - (6) Unchanged.

     (7) Service by Other Means. Service under this rule may be made by delivering a copy by any other means, including facsimile or electronic means, consented to in writing by the person served. Service by facsimile or electronic means is complete on transmission when made prior to 5:00 p.m. on a judicial day. Service made on a Saturday, Sunday, holiday or after 5:00 p.m. on any other day shall be deemed complete at 9:00 a.m. on the first judicial day thereafter; sService by other consented means is complete when the person making service delivers the copy to the agency designated to make delivery. Service under this subsection is not effective if the party making service learns that the attempted service did not reach the person to be served.

     (c) - (g) Unchanged.

     (h) Service of Papers by Telegraph. Any writ or order in any civil suit or proceeding and all the papers requiring service may be transmitted by telegraph for service in any place, and the telegraphic copy of such writ or order or paper so transmitted may be served or executed by the office or person to whom it is sent for that purpose and returned by him, if any return be requisite, in the same manner, and with the same force and effect in all respects as the original thereof might be, if delivered to him, and the officer or person serving or executing the same shall have the same authority and be subject to the same liabilities as if the said copy were the original. The original, when a writ or order, shall also be filed in the court from which it was issued, and a certified copy thereof shall be preserved in the telegraph office from which it was sent. In sending it, either the original or certified copy may be used by the operator for that purpose. [Rescinded.]

     (i) Unchanged.

     (b) In helping to draft a pleading, motion or document filed by the otherwise self-represented person, the attorney certifies that the attorney has read the pleading, motion, or paper legal memorandum, and that to the best of the attorney's knowledge, information, and belief, formed after an reasonable inquiry reasonable under the circumstances: (1) it is well grounded in fact, (2) and it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, and that (3) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. The attorney in providing such drafting assistance may rely on the otherwise self-represented person's representation of facts, unless the attorney has reason to believe that such representations are false or materially insufficient, in which instance the attorney shall make an independent reasonable inquiry into the facts.

     (b) - (e) Unchanged.

     (b) - (e) Unchanged.

     (1) - (3) Unchanged.

     (4) Use of Deposition. If a deposition to perpetuate testimony is taken under these rules or if, although not so taken, it would be admissible in evidence in the courts of the state in which it is taken, it may be used in any action involving the same subject matter subsequently brought in a superior court of this state, in accordance with the provisions of rule 32(a).

     (b) - (c) Unchanged

     (a) Within the United States. Within the United States or within a territory or insular possession subject to the dominion of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of the United States or of the place where the examination is held, or before a person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony. The term "officer" as used in rules 30, 31, and 32 includes a person appointed by the court or designated by the parties under rule 29.

     (b) - (d) Unchanged.

     (b) Notice of Examination: General Requirements; Special Notice; Nonstenographic Recording; Production of Documents and Things; Deposition of Organization; Video Tape Recording.

     (1) - (4) Unchanged.

     (5) The notice to a party deponent may be accompanied by a request made in compliance with rule 34 for the production of documents and tangible things at the taking of the deposition. The procedure of rule 34 shall apply to the request, including the time established by rule 34(b) for the party to respond to the request.

     (c) - (h) Unchanged.

     (1) Nature and Effect of Motion. If, during a trial by jury, a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find or have found for that party with respect to that issue, the court may grant a motion for judgment as a matter of law against the party on any claim, counterclaim, cross claim, or third party claim that cannot under the controlling law be maintained without a favorable finding on that issue. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment. A motion for judgment as a matter of law which is not granted is not a waiver of trial by jury even though all parties to the action have moved for judgment as a matter of law. A motion for judgment as a matter of law shall state the specific ground therefor.

     (2) When Made. A motion for judgment as a matter of law may be made at any time before submission of the case to the jury, or in accordance with section (b) of this rule.

     (b) Renewing Motion for Judgment After Trial; Alternative Motion for New Trial. Not later than 10 days after the entry of judgment or after the jury is discharged if no verdict is returned, whether or not the party has moved previously for judgment as a matter of law and whether or not a verdict was returned, a party may move for judgment as a matter of law. A motion for a new trial under rule 59 may be joined with a motion for judgment as a matter of law under this section, or a new trial may be requested in the alternative. If a verdict was returned, the court may, in disposing of the motion for judgment as a matter of law, allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as a matter of law. If no verdict was returned, the court may, in disposing of the motion, direct the entry of judgment as a matter of law or may order a new trial. If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment -- and may alternatively request a new trial or join a motion for a new trial under rule 59. In ruling on a renewed motion, the court may:

     (1) if a verdict was returned:

     (A) allow the judgment to stand,

     (B) order a new trial, or

     (C) direct entry of judgment as a matter of law; or

     (2) if no verdict was returned;

     (A) order a new trial, or

     (B) direct entry of judgment as a matter of law.

     (c) Unchanged.

     (d) Same: Denial of Motion for Judgment as a Matter of Law. If the motion for judgment as a matter of law is denied, the party who prevailed on that motion may, as appellee, assert grounds entitling the party to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment. If the appellate court reverses the judgment, nothing in this rule precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.

     (1) Nature and Effect of Motion. If, during a trial by jury, a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find or have found for that party with respect to that issue, the court may grant a motion for judgment as a matter of law against that party on any claim, counterclaim, cross claim, or third party claim that cannot under the controlling law be maintained without a favorable finding on that issue. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to judgment. A motion for judgment as a matter of law which is not granted is not a waiver of trial by jury even though all parties to the action have moved for judgment as a matter of law. A motion for judgment as a matter of law shall state the specific ground therefor.

     (2) When Made. A motion for judgment as a matter of law may be made at any time before submission of the case to the jury, or in accordance with section (b) of this rule.

     (b) Renewing Motion for Judgment After Trial; Alternative Motion for New Trial. Not later than 10 days after the entry of judgment or after the jury is discharged if no verdict is returned, whether or not the party has moved previously for judgment as a matter of law and whether or not a verdict was returned, a party may move for judgment as a matter of law. A motion for a new trial under rule 59 may be joined with a motion for judgment as a matter of law under this section, or a new trial may be requested in the alternative. If a verdict was returned, the court may, in disposing of the motion for judgment as a matter of law, allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as a matter of law. If no verdict was returned, the court may, in disposing of the motion, direct the entry of judgment as a matter of law or may order a new trial. If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment -- and may alternatively request a new trial or join a motion for a new trial under rule 59. In ruling on a renewed motion, the court may:

     (1) if a verdict was returned:

     (A) allow the judgment to stand,

     (B) order a new trial, or

     (C) direct entry of judgment as a matter of law; or

     (2) if no verdict was returned;

     (A) order a new trial, or

     (B) direct entry of judgment as a matter of law.

     (c) Unchanged.

     (d) Same: Denial of Motion for Judgment as a Matter of Law. If the motion for judgment as a matter of law is denied, the party who prevailed on that motion may, as appellee, assert grounds entitling the party to a new trial in the event the superior court concludes that the trial court erred in denying the motion for judgment. If the superior court reverses the judgment, nothing in this rule precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.

     (b) Amendment of Findings. Upon motion of a party made filed not later than 5 10 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to rule 59. When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the court an objection to such findings or has made a motion to amend them or a motion for judgment.

     (c) - (e) Unchanged.

     (1) Irregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having a fair trial;

     (2) Misconduct of prevailing party or jury; and whenever any one or more of the jurors shall have been induced to assent to any general or special verdict or to a finding on any question or questions submitted to the jury by the court, other and different from his own conclusions, and arrived at by a resort to the determination of chance or lot, such misconduct may be proved by the affidavits of one or more of the jurors;

     (3) Accident or surprise which ordinary prudence could not have guarded against;

     (4) Newly discovered evidence, material for the party making the application, which he could not with reasonable diligence have discovered and produced at the trial;

     (5) Damages so excessive or inadequate as unmistakably to indicate that the verdict must have been the result of passion or prejudice;

     (6) Error in the assessment of the amount of recovery whether too large or too small, when the action is upon a contract, or for the injury or detention of property;

     (7) That there is no evidence or reasonable inference from the evidence to justify the verdict or the decision, or that it is contrary to law;

     (8) Error in law occurring at the trial and objected to at the time by the party making the application; or

     (9) That substantial justice has not been done.

     (b) Time for Motion; Contents of Motion. A motion for a new trial or for reconsideration shall be served and filed not later than 10 days after the entry of the judgment, order, or other decision. The motion shall be noted at the time it is filed, to be heard or otherwise considered within 30 days after the entry of the judgment, order, or other decision, unless the court directs otherwise.

     A motion for a new trial or for reconsideration shall identify the specific reasons in fact and law as to each ground on which the motion is based.

     (c) Time for Serving Affidavits. When a motion for new trial is based upon on affidavits, they shall be served filed with the motion. The opposing party has 10 days after such service within which to serve to file opposing affidavits, which but that period may be extended for an additional period not exceeding up to 20 days, either by the court for good cause shown or by the parties' by written stipulation. The court may permit reply affidavits.

     (d) On Initiative of Court. Not later than 10 days after entry of judgment, the court of on its own initiative may order a hearing on its proposed order for a new trial for any reason for which it might have granted a new trial on motion of a party, and in the order shall specify the grounds thereof. After giving the parties notice and an opportunity to be heard, the court may grant a timely motion for a new trial for a reason not stated in the motion. When granting a new trial on its own initiative or for a reason not stated in a motion, the court shall specify the grounds in its order.

     (e) Hearing on Motion. When a motion for reconsideration or for a new trial is served and filed, the judge by whom it is to be heard may on his the judge's own motion or on application determine:

     (1) Time of Hearing. Whether the motion shall be heard before the entry of judgment;

     (2) Consolidation of Hearings. Whether the motion shall be heard before or at the same time as the presentation of the findings and conclusions and/or judgment, and the hearing on any other pending motion; and/or

     (3) Nature of Hearing. Whether the motion or motions and presentation shall be heard on oral argument or submitted on briefs, and if on briefs, shall fix the time within which the briefs shall be served and filed.

     (f) Statement of Reasons. In all cases where the trial court grants a motion for a new trial, it shall, in the order granting the motion, state whether the order is based upon the record or upon facts and circumstances outside the record which that cannot be made a part thereof. If the order is based upon the record, the court shall give definite reasons of law and facts for its order. If the order is based upon matters outside the record, the court shall state the facts and circumstances upon which it relied.

     (g) Reopening Judgment. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.

     (h) Motion to Alter or Amend Judgment. A motion to alter or amend the judgment shall be served filed not later than 10 days after entry of the judgment.

     (i) Alternative Motions, etc. Alternative motions for judgment notwithstanding the verdict as a matter of law and for a new trial may be made in accordance with rule 50(c).

     (j) Limit on Motions. If a motion for reconsideration, or for a new trial, or for judgment notwithstanding the verdict as a matter of law, is made and heard before the entry of the judgment, no further motion may be made, without leave of the court first obtained for good cause shown: (1) for a new trial, (2) nor pursuant to sections (g), (h), and (i) of this rule, nor or (3) under rule 52(b), without leave of court first obtained for good cause shown.

     (1) Irregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having a fair trial;

     (2) Misconduct of prevailing party or jury; and whenever any one or more of the jurors shall have been induced to assent to any general or special verdict or to a finding on any question or questions submitted to the jury by the court, other and different from his own conclusions, and arrived at by a resort to the determination of chance or lot, such misconduct may be proved by the affidavits of one or more of the jurors;

     (3) Accident or surprise which ordinary prudence could not have guarded against;

     (4) Newly discovered evidence, material for the party making the application, which he could not with reasonable diligence have discovered and produced at the trial;

     (5) Damages so excessive or inadequate as unmistakably to indicate that the verdict must have been the result of passion or prejudice;

     (6) Error in the assessment of the amount of recovery whether too large or too small, when the action is upon a contract, or for the injury or detention of property;

     (7) That there is no evidence or reasonable inference from the evidence to justify the verdict or the decision, or that it is contrary to law;

     (8) Error in law occurring at the trial and objected to at the time by the party making the application; or

     (9) That substantial justice has not been done.

     (b) Time for Motion; Contents of Motion. A motion for a new trial or for reconsideration shall be served and filed not later than 10 days after the entry of the judgment, order, or other decision. The motion shall be noted at the time it is filed, to be heard or otherwise considered within 30 days after entry of the judgment, order, or other decision, unless the court directs otherwise.

     A motion for a new trial or for reconsideration shall identify the specific reasons in fact and law as to each ground on which the motion is based.

     (c) Time for Serving Affidavits. When a motion for new trial is based upon on affidavits, they shall be served filed with the motion. The opposing party has 10 days after such service within which to serve to file opposing affidavits, which but that period may be extended for an additional period not exceeding up to 20 days, either by the court for good cause shown or by the parties' by written stipulation. The court may permit reply affidavits.

     (d) On Initiative of Court. Not later than 10 days after entry of judgment, the court of on its own initiative may order a hearing on its proposed order for a new trial for any reason for which it might have granted a new trial on motion of a party, and in the order shall specify the grounds thereof. After giving the parties notice and an opportunity to be heard, the court may grant a timely motion for a new trial for a reason not stated in the motion. When granting a new trial on its own initiative or for a reason not stated in the motion, the court shall specify the grounds in its order.

     (e) Hearing on Motion. When a motion for reconsideration or for a new trial is served and filed, the judge by whom it is to be heard may on his the judge's own motion or on application determine:

     (1) Time of Hearing. Whether the motion shall be heard before the entry of judgment;

     (2) Consolidation of Hearings. Whether the motion shall be heard before or at the same time as the presentation of the findings and conclusions and/or judgment, and the hearing on any other pending motion; and

     (3) Nature of Hearing. Whether the motion or motions and presentation shall be heard on oral argument or submitted on briefs, and if on briefs, shall fix the time within which the briefs shall be served and filed.

     (f) Statement of Reasons. In all cases where the trial court grants a motion for a new trial, it shall, in the order granting the motion, state whether the order is based upon the record or upon facts and circumstances outside the record which that cannot be made a part thereof. If the order is based upon the record, the court shall give definite reasons of law and facts for its order. If the order is based upon matters outside the record, the court shall state the facts and circumstances upon which it relied.

     (g) Reopening Judgment. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law, and direct the entry of a new judgment.

     (h) Motion to Alter or Amend Judgment. A motion to alter or amend the judgment shall be served filed not later than 10 days after entry of the judgment.

     (i) Alternative Motions, etc. Alternative motions for judgment notwithstanding the verdict as a matter of law and for a new trial may be made in accordance with rule 50(c).

     (j) Limit on Motions. If a motion for reconsideration, or for a new trial, or for judgment notwithstanding the verdict as a matter of law, is made and heard before the entry of the judgment, no further motion may be made, without leave of the court first obtained for good cause shown: (1) for a new trial, or (2) nor pursuant to sections (g), (h), and (i) of this rule, nor under CR 52(b), without leave of court first obtained for good cause shown.

     (b) - (h) Unchanged.

     (h) Regulation of Discovery.

     (1) - (2) Unchanged.

     (3) Custody of Materials. Any materials furnished to a lawyer pursuant to these rules shall remain in the exclusive custody of the attorney and be used only for the purposes of conducting the party's side of the case, unless otherwise agreed by the parties or ordered by the court, and shall be subject to such other terms and conditions as the parties may agree or the court may provide. Further, a defense attorney shall be permitted to provide a copy of the materials to the defendant after making appropriate redactions which are approved by the prosecuting authority or order of the court.

     (4) - (7) Unchanged.

     (g) Regulation of Discovery.

     (1) - (2) Unchanged.

     (3) Custody of Materials. Any materials furnished to a lawyer pursuant to these rules shall remain in the exclusive custody of the lawyer and be used only for the purposes of conducting the party's side of the case, unless otherwise agreed by the parties or ordered by the court, and shall be subject to such other terms and conditions as the parties may agree or the court may provide. Further, a defense lawyer shall be permitted to provide a copy of the materials to the defendant after making appropriate redactions which are approved by the prosecuting authority or order of the court.

     (4) - (7) Unchanged.

     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.

     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.

© Washington State Code Reviser's Office