WSR 19-23-018

RULES OF COURT

STATE SUPREME COURT

[November 6, 2019]

The Washington State Supreme Court Word Count Workgroup, having recommended the suggested amendments to RAP 4.2, RAP 4.3, RAP 10.4, RAP 10.7, RAP 10.8, RAP 10.10(b), RAP 12.4, RAP 13.4, RAP 13.5(c), RAP 13.7(e), RAP 16.7(c), RAP 16.10(d), RAP 16.16(e), RAP 16.17, RAP 16.21(c), RAP 16.22, RAP 17.4(g), RAP 18.13A(h), RAP 18.14(c), New RAP 18.17, RAP Forms 3, 4, 6, 9, 17, 18, 20, 23, and the Court having approved the suggested amendments for publication;

Now, therefore, it is hereby

(a) That pursuant to the provisions of GR 9(g), the suggested amendments as shown below are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites in January 2020.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2020. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

dated at Olympia, Washington this 6th day of November, 2019.

Name of Proponent: Word Count Workgroup (formed at the direction of the Washington State Supreme Court)

Purpose: An increasing number of trial and appellate courts across the country have switched from page limits to word count limits for court filings. Using word counts rather than page limits provides a level playing field, where the length of a document (and thus, how much legal argument can be made) is not determined by formatting decisions such as fonts, spacing, and use of footnotes. More courts are switching to word counts as it becomes simpler for users to apply. In an increasingly electronic world, it appears that word counts are the way of the future.

In light of this trend, the Washington State Supreme Court directed a small group of appellate judges and clerks to evaluate whether Washington State should consider making this switch. After initial research and discussion, the group concluded that the rule change was worthy of further exploration. Noting the likely interest from the appellate bar, the group recommended that stakeholders be included early in the process. The Supreme Court agreed with the recommendation and directed that a larger workgroup be formed to further explore the idea and draft a proposed rule. Organizations representing a variety of appellate practitioners were asked to nominate a representative to participate in the workgroup.

The workgroup consisted of the following volunteers:

The workgroup conducted an extensive review of the length limitation rules across the country in both state and federal courts. The workgroup specifically researched and discussed (1) the word count limits that would be analogous to the current page limits, (2) what parts of a filing should be excluded from the word count (e.g., cover page, table of contents, etc.), (3) how a filer would certify compliance with the word count, (4) whether any changes to the formatting requirements should accompany a switch to word count limitations, and (5) who should be exempt from word count limitations (e.g., self-represented litigants without access to word processing software). The proposed rule contains the work group's recommendations with respect to each of those issues.

The proposed rule is a single comprehensive rule that would be located in RAP Title 18 (we are proposing it be RAP 18.17). The comprehensive rule would cover all of the formatting and length limitations for documents filed in the appellate courts, including the Washington Supreme Court. The committee's goal was to craft a rule that allowed roughly equal length for briefs and other documents as is permitted under the current rules. Documents can be created by word-processing software, typewriter or even written by hand; documents produced by typewriter or written by hand will still use page counts instead of word counts. The committee assumed that documents produced by typewriter or written by hand would primarily be used by pro se litigants, including people who are incarcerated.

With respect to documents created by word-processing software, instead of prescribing a specific font and font size, the proposed rule requires that the font be a minimum of 14 points text using a serif font comparable to Times New Roman or a sans serif font comparable to Arial. The committee chose a minimum 14 point font for readability. Judges spend a substantial amount of time reading and the committee deemed 14 point fonts likely to make all documents easier to read. In addition, a review of word-count rules in other jurisdictions revealed that a 14 point font was the most widely required minimum size font. Documents produced by typewriter must use a minimum font size of 12 points.

To accompany the proposed comprehensive rule, the group proposes amending all current rules that contain formatting requirements and length limitations to remove those requirements and limitations and instead explicitly point to the new comprehensive rule for those requirements and limitations. The group also proposes to amend the forms in the appendix to the RAPs to add the new word count certification language at the end of each form to which it applies. Specifically, the following rules and forms would be amended:

RAP 4.2(c) and (d)

RAP 4.3(c) and (d)

RAP 10.4(a) and (b)

RAP 10.7

RAP 10.8

RAP 10.10(b)

RAP 12.4(a), (e) and (i)

RAP 13.4(e), (f) and (h)

RAP 13.5(c)

RAP 13.7(e)

RAP 16.7(c)

RAP 16.10(d)

RAP 16.16(e)

RAP 16.17

RAP 16.21(c)

RAP 16.22(c), (d), (e) and (f)

RAP 17.4(g)

RAP 18.13A(h)

RAP 18.14(c)

RAP Form 3

RAP Form 4

RAP Form 6

RAP Form 9

RAP Form 17

RAP Form 18

RAP Form 20

RAP Form 23

The group does not propose any changes to RAP 14.3, which calculates costs per page at an amount fixed by the Supreme Court (currently $2.00 per page). Calculating costs based on word count would complicate the process unnecessarily. The group recommends retaining the current system of calculating costs on a per page basis.

Hearing: The proponent does not believe a public hearing is necessary.

Expedited Consideration: The proponent does not believe that expedited consideration is necessary.

(a) – (b) [unchanged.]

(c) Form of Statement of Grounds for Direct Review. The statement should be captioned "Statement of Grounds for Direct Review," contain the title of the case as provided in rule 3.4, conform to the formatting requirements of RAP 18.17rule 10.4(a), and contain under appropriate headings and in the order here indicated:

(1) Nature of the Case and Decision. A short statement of the substance of the case below and the basis for the superior court decision;

(2) Issues Presented for Review. A statement of each issue the party intends to present for review; and

(3) Grounds for Direct Review. The grounds upon which the party contends direct review should be granted.

The statement of grounds for direct review should not exceed 15 pages, exclusive of appendices and the title sheet.comply with the length limitations of RAP 18.17.

(d) Answer to Statement of Grounds for Direct Review. A respondent may file an answer to the statement of grounds for direct review. In an appeal, the answer should be filed within 14 days after service of the statement on respondent. In a discretionary review, the answer should be filed with any response to the motion for discretionary review. The answer should comply with the formatting requirements and length limitations of RAP 18.17.conform to the formatting requirements of rule 10.4(a). The answer should not exceed 15 pages, exclusive of appendices and the title sheet.

(e) [unchanged.]

(a) - (b) [unchanged.]

(c) Form of Statement of Grounds for Direct Review. The statement should be captioned "Statement of Grounds for Direct Review," contain the title of the case as provided in rule 3.4, conform to the formatting requirements of rule 10.4(a)RAP 18.17, and contain under appropriate headings and in the order here indicated:

(1) Nature of Case and Decision. A short statement of the substance of the case below and the basis for the trial court decision;

(2) Issues Presented for Review. A statement of each issue the party intends to present for review; and

(3) Grounds for Direct Review. The grounds upon which the party contends direct review should be granted.

(4) Appendix. A copy of the trial court's written statement under Rule 4.3(a)(2). The statement of grounds for direct review should comply with the length limitations of RAP 18.17.not exceed 15 pages, exclusive of appendices and the title sheet.

(d)Answer to Statement of Grounds for Direct Review. A respondent may file an answer to the statement of grounds for direct review. The answer should be filed within 14 days after service of the statement on respondent. The answer should comply with the formatting requirements and length limitations of RAP 18.17.conform to the formatting requirements of rule 10.4(a). The answer should not exceed 15 pages, exclusive of appendices and the title sheet.

(e) [unchanged.]

(a) Typing or PrintingFormat of Brief. Briefs shall comply with the formatting requirements of RAP 18.17.conform to the following requirements:

(c) – (h) [unchanged.]

If a party submits a brief that fails to comply with the requirements of Title 10 and RAP 18.17, the appellate court, on its own initiative or on the motion of a party, may (1) order the brief returned for correction or replacement within a specified time, (2) order the brief stricken from the files with leave to file a new brief within a specified time, or (3) accept the brief. The appellate court will ordinarily impose sanctions on a party or counsel for a party who files a brief that fails to comply with these rules.

A party or amicus curiae may file a statement of additional authorities. The statement should not contain argument, but should identify the issue for which each authority is offered. The statement must be served and filed prior to the filing of the decision on the merits or, if there is a motion for reconsideration, prior to the filing of the decision on the motion. The statement should comply with the formatting requirements of RAP 18.17.

(a) [unchanged.]

(b) Length and Legibility. The statement, which shall be limited to no more than 50 pages, may be submitted in handwriting so long as it is legible and can be reproduced by the clerk. The statement should comply with the formatting requirements and length limitations of RAP 18.17.

(c) - (f) [unchanged.]

(a) Generally. A party may file a motion for reconsideration only of a decision by the judges (1) terminating review, or (2) granting or denying a personal restraint petition on the merits. The motion should be in the form and be served and filed as provided in rules 17.3(a), 17.4 (a) and (g), and 18.5, and 18.17 except as otherwise provided in this rule. A party may not file a motion for reconsideration of an order refusing to modify a ruling by the commissioner or clerk, nor may a party file a motion for reconsideration of a Supreme Court order denying a petition for review.

(b) - (d) [unchanged.]

(e) Length. The motion, answer, or reply should not exceed 25 pages in lengthcomply with the length limitations in RAP 18.17.

(f) - (h) [unchanged.]

(i) Amicus Curiae Memoranda. When a motion for reconsideration has been filed, the appellate court may grant permission to file an amicus curiae memorandum for the purpose of addressing the court regarding the soundness of legal principles announced in the course of the opinion. Absent a showing of particular justification, an amicus curiae memorandum should be received by the court and counsel of record for the parties and any other amicus curiae not later than 5 days after the motion for reconsideration has been filed. Rules 10.4 and 10.6 should govern generally disposition of a motion to file an amicus curiae memorandum, except that no answer to an amicus curiae memorandum should be filed unless requested by the court. An amicus curiae memorandum or answer should not exceed 10 pagescomply with the length limitations in RAP 18.17.

(a) – (d) [unchanged.]

(e) Form of Petition, Answer, and Reply. The petition, answer, and reply should comply with the requirements as to form for a brief as provided in rules 10.3,and 10.4, and 18.17, except as otherwise provided in this rule.

(f) Length. The petition for review, answer, or reply should comply with the length limitations of RAP 18.17.not exceed 20 pages double spaced, excluding appendices, title sheet, table of contents, and table of authorities.

(g) [unchanged.]

(h) Amicus Curiae Memoranda. The Supreme Court may grant permission to file an amicus curiae memorandum in support of or opposition to a pending petition for review. Absent a showing of particular justification, an amicus curiae memorandum should be received by the court and counsel of record for the parties and other amicus curiae not later than 60 days from the date the petition for review is filed. Rules 10.4 and 10.6 should govern generally disposition of a motion to file an amicus curiae memorandum. An amicus curiae memorandum or answer thereto should not exceed 10 pagescomply with the length limitations of RAP 18.17.

(i) [unchanged.]

(a) - (b) [unchanged.]

(c) Motion Procedure. The procedure for and the form of the motion for discretionary review is as provided in Title 17. A motion for discretionary review under this rule, and any response, should comply with the formatting requirements and length limitations of RAP 18.17.not exceed 20 pages double spaced, excluding appendices, title sheet, table of contents, and table of authorities.

(d) [unchanged.]

(a) - (d) [unchanged.]

(1) Form. Except as to length, a supplemental brief should conform to rules 10.3,and 10.4, and 18.17, and should be captioned "supplemental brief of (petitioner/respondent--name of party)."

(2) Length. A supplemental brief should comply with the length limitations in RAP 18.17.not exceed 20 double spaced pages. The title sheet, appendices, table of contents and table of authorities are not included in this page limitation. For compelling reasons the court may grant a motion to file an over-length brief.

(3) Filing and Service. A supplemental brief should be filed in the Supreme Court and served in accordance with rule 10.2.

(a) - (b) [unchanged.]

(c) Length of Petition. The petition should not exceed 50 pages.comply with the length limitations of RAP 18.17.

(a) – (c) [unchanged.]

(d) Content, Format, and Length and Style of Briefs. The content, format, and lengthand style of briefs is governed by rules 10.3,and 10.4, and 18.17.

(e) [unchanged.]

(a) - (d) [unchanged.].

(1) Procedure. The federal court shall designate who will file the first brief. The first brief should be filed within 30 days after the record is filed in the Supreme Court. The opposing party should file the opposing brief within 20 days after receipt of the opening brief. A reply brief should be filed within 10 days after the opposing brief is served. The briefs should be served in accordance with rule 10.2. The time for filing the record, the supplemental record, or briefs may be extended for cause.

(2) Form and Reproduction of Briefs. Briefs should be in the form provided by rules 10.3,and 10.4 and 18.17. Briefs will be reproduced by the clerk in accordance with rule 10.5.

(f) - (g) [unchanged.]

Rules 1.1, 1.2, 18.1, 18.3 through 18.10, 18.17 and 18.21 through 18.24 are applicable to the special proceedings in this title.

(a) – (b) [unchanged.]

(c) Attendance at Clerk's Conference. The attorneys for each party, if the notice requires it, shall attend the clerk's conference on the date, time, and place specified in the clerk's notice. Those in attendance should be ready to seriously consider the procedural issues attendant upon the case, including, but not limited to, settlement of the record, the briefing schedule, the pagelength limitations for briefs, oral argument, and other matters which may promote the prompt and fair disposition of the appeal.

(d) [unchanged.]

(a) – (b) [unchanged.]

(c) A brief of appellant or respondent, or a brief in support of or opposition to a personal restraint petition, shall not exceed 250 pages. Aa reply brief, a pro se supplemental brief, or the response to a pro se supplemental brief, shall not exceed 75 pagescomply with the length limitations in RAP 18.17.

(d) If legal arguments are included in a personal restraint petition or the response to a personal restraint petition, no separate brief may be filed. A petition or response that contains legal arguments may not exceed 300 pagesthe length limitations in RAP 18.17. The petition or response shall comply with RAP 10.4(a) and 18.17.

(e) The clerk will retain but not formally file a brief, petition, or response that exceeds these page limitsthe length limitations of RAP 18.17, except on prior order of the court. Such an order will only be granted for compelling reasons. The clerk will not file a brief, petition, or response that violates the format requirements of RAP 10.4(a) and 18.17, if a properly formatted brief would violate the page limitslength limitations. The clerk shall direct the party whose document has been rejected for formal filing to correct the deficiencies within a specified time period.

(a) – (f) [unchanged.]

(1) A motion,and answer or reply should not exceed the length limitations in RAP 18.17.20 pages, not including supporting papers. A reply should not exceed 10 pages, not including supporting papers, title sheets, table of contents, and table of authorities. For compelling reasons, the court may grant a motion to file an over-length motion, answer, or reply.

(2) All papers relating to motions or answers should comply with the formatting requirements of RAP 18.17be filed in the form provided for briefs in rule 10.4(a), provided an original only and no copy should be filed. The appellate court commissioner or clerk will reproduce additional copies that may be necessary for the appellate court and charge the appropriate party as provided in rule 10.5(a).

(a) – (g) [unchanged.]

(h) Briefing. Unless directed otherwise in a ruling granting discretionary review of an interim order entered in dependency and dependency guardianship cases, parties shall file briefs in accordance with rules 10.3,and 10.4 and 18.17.

(i) – (k) [unchanged.]

(a) – (b) [unchanged.]

(c) Content, Filing, and Service; Response. A motion on the merits should be a separate document and should not be included within a party's brief on the merits. The motion should comply with rule 17.3(a), except that material contained in a brief may be incorporated by reference and need not be repeated in the motion. A motion on the merits should not exceed the length limitations of RAP 18.17.25 pages, excluding attachments. The motion should be filed and served as provided in rule 17.4. A response may be filed and served as provided in rule 17.4(e) and may incorporate material in a brief by reference. Requests for attorney fees are governed by rule 18.1.

(d) - (k) [unchanged.]

Title Page: [unchanged.]

A. - E. [unchanged.]

F. CONCLUSION

(State the relief sought if review is granted. For example: "This court should accept review for the reasons indicated in Part E and modify the restraining order to permit defendant to use her assets to pay fees and costs incurred in defending plaintiff's suit for conversion.")

(Date)

Respectfully submitted,

_____________________________________

Signature

(Name of petitioner's attorney)

(See rule 17.3 (b)(8) for materials to include within the Appendix.)

(Rule 4.2(b))

No. (Supreme Court)

(Name of party) seeks direct review of the (describe the decision or part of the decision that the party wants reviewed) entered by the (name of court) on (date of entry.) The issues presented in the review are: (State issues presented for review. See Part II of Form 6 for suggestions for framing issues presented for review.)

The reasons for granting direct review are: (Briefly indicate and argue grounds for direct review. See rule 4.2.)

(Date)

Respectfully submitted,

____________________________________

Signature

(Name, address, telephone number, and

Washington State Bar Association

membership number of attorney)

[Title Page] [unchanged.]

TABLE OF CONTENTS [unchanged.]

TABLE OF AUTHORITIES [unchanged.]

I. – V [unchanged.]

Respectfully submitted,

_____________________________________

Signature

Attorney for [Appellant, Respondent, or Petitioner]

Washington State Bar Association membership number

VII. [unchanged.]

[Title Page]: [unchanged.]

TABLE OF CONTENTS [unchanged.]

TABLE OF AUTHORITIES [unchanged.]

A. - E. [unchanged.]

(State the relief sought if review is granted. See Part F of Form 3.)

(Date)

Respectfully submitted,

_______________________________________

Signature

(Name of attorney)

Attorney for (Petitioner or Respondent)

Washington State Bar Association membership number

APPENDIX [unchanged.]

[Title and Caption] [unchanged.]

A. – D. [unchanged.]

After being first duly sworn, on oath, I depose and say: That I am the petitioner, that I have read the petition, know its contents, and I believe the petition is true.

___________________________________

[sign here]

SUBSCRIBED AND SWORN to before me this ___ day of__________.

___________________________________

Notary Public in and for the State

of Washington, residing at ________

If a notary is not available, explain why none is available and indicate who can be contacted to help you find a notary: _____________

_______________________________________________________________

_______________________________________________________________

Then sign below:

I declare that I have examined this petition and to the best of my knowledge and belief it is true and correct.

_____________________________[date].

___________________________________

[sign here]

[Title Page]: [unchanged.]

1. - 3. [unchanged.]

Here state the grounds for the relief sought with authority and supporting argument. For example: "RAP 3.2(a) authorizes substitution of parties when the interest of a party in the subject matter of the review has been transferred. Substitution should be granted here as defendant has no claim against plaintiff-respondent and respondent no longer has an interest in the judgment which is the subject matter of this appeal".)

(Date)

Respectfully submitted,

_____________________________________

Signature

Attorney for (Appellant, Respondent,

or Petitioner)

(Name, address, telephone number, and

Washington State Bar Association

membership number of attorney)

[Caption and Header] [unchanged.]

1. – 3. [unchanged.]

(Here state the grounds for relief sought with authority and supporting argument. The grounds for relief set forth in the original motion may be incorporated by reference.)

(Date)

Respectfully submitted,

________________________________

Signature

Attorney for (Appellant, Respondent,

or Petitioner)

(Name, address, telephone number, and

Washington State Bar Association

membership number of attorney)

[Header and Caption] [unchanged.]

Additional Ground 1 [unchanged.]

Additional Ground 2 [unchanged.]

If there are additional grounds, a brief summary is attached to this statement.