WSR 98-13-020

RULES OF COURT

STATE SUPREME COURT

[June 4, 1998]

The Washington State Bar Association having recommended the adoption of the proposed amendments to RPC 7.5(a); RAP 2.2, RAP 2.3, RAP 2.4, RAP 3.2, RAP 3.3, RAP 4.3, RAP 5.1, RAP 5.2, RAP 5.3 (c) and (j), RAP 5.4, RAP 5.5, RAP 7.2, RAP 9.2, RAP 9.5, RAP 9.6, RAP 9.7, RAP 9.8, RAP 9.10, RAP 10.1, RAP 10.2, RAP 10.3, RAP 10.4, RAP 10.5, RAP 11.3, RAP 12.4, RAP 12.5, RAP 12.7, RAP 13.4, RAP 13.7, RAP 14.2, RAP 14.3(a), RAP 14.6, RAP 16.9, RAP 16.10, RAP 16.11, RAP 17.4, RAP 17.5, RAP 18.3, RAP 18.6, RAP 18.9, RAP 18.23; RALJ 8.1, RALJ 9.1, RALJ 9.3, RALJ 10.2 and New RALJ 10.3, 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 will become effective September 1, 1998.

DATED at Olympia, Washington this 4th day of June, 1998.

proposed amendment to rules of

professional conduct

RPC 7.5

firm names and designations

(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1 or Rule 7.4. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or charitable legal services organization and is not otherwise in violation of Rule 7.1 or Rule 7.4. A trade name may not be used by a lawyer in private practice except that the use of the words "legal clinic" may be used in private practice except that the use of the words "legal clinic" may be used alone or in conjunction with a geographical designation or the name of one or more of the lawyers connected with the practice so long as the name is not otherwise in violation of rule 7.1 and except if otherwise lawful a firm may use as, or continue to include in, its name the name or names of one or more deceased or retired members of the firm of a predecessor firm in a continuing line of succession.

proposed amendments to rules of

appellate procedure

RAP 2.2

decisions of the superior court which may be appealed

(a) Unchanged.

(b) Appeal by State or a Local Government in Criminal Case. Except as provided in section (c), the State or a local government may appeal in a criminal case only from the following superior court decisions and only if the appeal will not place the defendant in double jeopardy:

(1) - (5) Unchanged.

(6) Sentence in Criminal Case. A sentence in a criminal case which is below outside the standard range for the offense or which the state or local government believes involves a miscalculation of the standard range.

(c) - (d) Unchanged.

RAP 2.3

decisions of the trial court which may be reviewed by

discretionary review

(a) Unchanged.

(b) Considerations Governing Acceptance of Review. Except as provided in section (d), discretionary review will be accepted only:

(1) If the superior court has committed an obvious error which would render further proceedings useless;

(2) If the superior court has committed probable error and the decision of the superior court substantially alters the status quo or substantially limits the freedom of a party to act; or

(3) If the superior court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by an inferior court or administrative agency, as to call for review by the appellate court.

The appellate court may consider that the superior court has certified, or that all parties to the litigation have stipulated, that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and that immediate review of the order may materially advance the ultimate termination of the litigation.

(c) - (d) Unchanged.

RAP 2.4

scope of review of a trial court decision

(a) - (f) Unchanged.

(g) Award of Attorney Fees. An appeal from a decision on the merits of a case brings up for review an award of attorney fees entered after the appellate court accepts review of the decision on the merits, if the party seeking review files within the time provided in RAP 5.2 an amended notice of appeal or an amended notice for discretionary review as provided in rule 7.2(d).

RAP 3.2

substitution of parties

(a) - (b) Unchanged.

(c) Where to Make Motion. The motion to substitute parties must be made in the appellate court if the motion is made after review is accepted the notice of appeal was filed or discretionary review was granted. In other cases, the motion should be made in the trial court.

(d) - (f) Unchanged.

RAP 3.3

consolidation of cases

(a) Cases Tried Together. If two or more cases have been tried together or consolidated for trial, the cases are consolidated for the purpose of review unless the appellate court otherwise directs.

(b) Unchanged.

RAP 4.3

transfer of cases by supreme court

The Supreme Court, to promote the orderly administration of justice may, on its own initiative, upon certification by the Court of Appeals, or on motion of a party, transfer a case from the Court of Appeals to the Supreme Court or from one division to another division of the Court of Appeals. The Court of Appeals, on its own initiative or on motion of a party, may transfer a case from one division to another division pursuant to CAR 21(a).

RAP 5.1

review initiated by filing of appeal or notice for

discretionary review

(a) Unchanged.

(b) Filing Fee. The first party to file a notice of appeal or notice for discretionary review must, at the time the notice is filed, pay the statutory filing fee to the clerk of the superior court in which the notice is filed. For cases that were tried together or consolidated for trial, only one filing fee need be paid, notwithstanding that separate notices are filed for each case.

(c) - (f) Unchanged.

RAP 5.2

time allowed to file notice

(a) Notice of Appeal. Except as provided in rules 3.2(e), and 5.2(d) and (f), and 15.2(a), a notice of appeal must be filed in the trial court within the longer of (1) 30 days after the entry of the decision of the trial court which the party filing the notice wants reviewed, or (2) the time provided in section (e).

(b) Notice for Discretionary Review. Except as provided in rules 3.2(e), and 5.2(d) and (f), and 15.2(a), a notice for discretionary review must be filed in the trial court within 30 days after the act of the trial court which the party filing the notice wants reviewed.

(c) - (g) Unchanged.

RAP 5.3

content of notice--filing

(a) Content of Notice of Appeal. A notice of appeal must (1) be titled a notice of appeal, (2) specify the party or parties seeking the review, (3) designate the decision or part of decision which the party wants reviewed, and (4) name the appellate court to which the review is taken.

The party filing the notice of appeal should attach to the notice of appeal a copy of the signed order or judgment from which the appeal is made, and, in a criminal case in which two or more defendants were joined for trial by order of the trial court, provide the names and superior court cause numbers of all codefendants.

(b) Unchanged.

(c) Identification of Parties, Counsel, and Address of Defendant in Criminal Case. The party seeking review should advise the trial court clerk of include on the notice of appeal the name and address of the attorney for each of the parties by placing this information on the notice. In a criminal case the attorney for the defendant should also notify the appellate court clerk of the defendant's address, by placing this information on the notice. The attorney for a defendant in a criminal case must also keep the appellate court clerk advised of any changes in defendant's address during review.

(d) - (i) Unchanged.

(j) Assistance to Defendant in Criminal Case. The trial court clerk shall, if requested by a defendant in a criminal case in open court or in writing, supply a notice of appeal form, or a notice for discretionary review form, or a form for a motion for order of indigency, and file it the forms upon completion by the defendant.

RAP 5.4

filing and service of notice

(a) Filing of Notice by Clerk of Trial Court. The clerk of the trial court shall immediately upon within 14 days of the filing of a notice of appeal or notice for discretionary review file a copy of the notice with the appellate court designated in the notice and transmit the filing fee to notify that court whether the filing fee has been paid. The clerk shall indicate on the notice in the clerk's file, or on a separate paper, the date the notice was mailed to the appellate court. Failure by the clerk to file the notice with the appellate court has no effect on the rights of any party to review.

(b) Unchanged.

RAP 5.5

settlement conference in court of appeals

(a) Unchanged.

(b) Settlement Conference. A settlement conference may be held in a civil appeal when directed by the Court of Appeals or when all parties to the appeal agree that a conference would be beneficial. The parties should direct a request for a settlement conference in writing to the clerk of the court. If a settlement conference is requested by all parties, or directed by the Court of Appeals, the clerk of the court will then give notice to the parties of the date, time, and place of conference; the name of the judge, judge pro tempore, or commissioner who will conduct the conference; and whether the parties are required to attend the conference. The clerk will also advise the parties if a civil appeal statement or answer is required and, if so, the date by which the document should be filed.

(c) Form of Civil Appeal Statement. The statement should be captioned "Civil Appeal Statement," contain the title of the case as provided in rule 3.4, and contain under appropriate headings and in the order here indicated:

(1) - (12) Unchanged.

(13) Certificate of Counsel. A statement signed by counsel for the party filing the statement certifying that the appeal is taken in good faith; the appeal is not taken for the purpose of delay; and that the party represented by counsel is or is not prepared to immediately take all steps immediately to complete the appeal. If the statement indicates the party is not prepared to immediately take all steps immediately to complete the appeal, the certificate of counsel must state the reason(s) why the party is not immediately prepared to complete the appeal.

(d) - (f) Unchanged.

(g) Attendance at Settlement Conference. The attorney for each party, and the party if the notice requires it, must attend the settlement conference on the date, time, and place specified in the clerk's notice. Those in attendance should be ready to seriously consider seriously the possibility of settlement, limitation of the issues to be presented for review, and other matters which that may promote the prompt and fair disposition of the appeal.

(h) - (j) Unchanged.

RAP 7.2

authority of trial court after

review accepted

(a) - (c) Unchanged.

(d) Attorney Fees and Litigation Expenses. The trial court has authority to award attorney fees and litigation expenses for an appeal in a marriage dissolution, a legal separation, a declaration of invalidity proceeding, or an action to modify a decree in any of these proceedings, and in any other action in which applicable law gives the trial court authority to do so. To obtain review of a trial court decision on attorney fees and litigation expenses in the same review proceeding as that challenging the judgment, a party must file an amended notice of appeal or an amended notice for discretionary review in the trial court.

(e) - (l) Unchanged.

RAP 9.2

verbatim report of proceedings

(a) Transcription and Statement of Arrangements. If the party seeking review intends to provide a verbatim report of proceedings, the party should arrange for transcription of and payment for an original and one copy of the verbatim report of proceedings within 45 days after acceptance of review the notice of appeal was filed or discretionary review was granted. If the proceeding being reviewed was recorded on videotape, transcription of the videotapes shall be completed by a court-approved transcriber in accordance with procedures developed by the Office of the Administrator for the Courts. Copies of these procedures are available at the court administrator's office in each county where there is a courtroom that videotapes proceedings or through the Office of the Administrator for the Courts. The party seeking review must file with the appellate court and serve on all parties of record and all named court reporters a statement that arrangements have been made for the transcription of the report and file proof of service with the appellate court. The statement must be filed within 45 days after acceptance of review the notice of appeal was filed or discretionary review was granted. The party must indicate the date that the report of proceedings was ordered, the financial arrangements which have been made for payment of transcription costs, the name of each court reporter or other person authorized to prepare a verbatim report of proceedings who will be preparing the transcript, the hearing dates, and the trial court judge. If the party seeking review does not intend to provide a verbatim report of proceedings, a statement to that effect should be filed in lieu of a statement of arrangements within 45 days after acceptance of review the notice of appeal was filed or discretionary review was granted and served on all parties of record.

(b) Content. A party should arrange for the transcription of only all those portions of the verbatim report of proceedings necessary to present the issues raised on review. A verbatim report of proceedings provided at public expense will not include the voir dire examination or opening statement unless so ordered by the trial court. If the party seeking review intends to urge that a verdict or finding of fact is not supported by the evidence, the party should include in the record all evidence relevant to the disputed verdict or finding. If the party seeking review intends to urge that the court erred in giving or failing to give an instruction, the party should include in the record all of the instructions given, the relevant instructions proposed, the party's objections to the instructions given, and the court's ruling on the objections.

(c) Notice of Partial Report of Proceedings and Issues. If a party seeking review arranges for less than all of the verbatim report of proceedings, the party should include in the statement of arrangements file and serve on all other parties within 45 days after review is accepted a description of the parts of the verbatim report of proceedings which the party intends to include in the record and a statement of the issues the party intends to present on review. Any other party who wishes to add to the verbatim report of proceedings should within 10 days after service of the description and notice statement of arrangements file and serve on all other parties and the court reporter a designation of additional parts of the verbatim report of proceedings and file proof of service with the appellate court. If the party seeking review refuses to provide the additional parts of the verbatim report of proceedings, the party seeking the additional parts may provide them at the party's own expense or apply to the trial court for an order requiring the party seeking review to pay for the additional parts of the verbatim report of proceedings.

(d) Payment of Expenses. Unchanged.

(e) Title Page and Table of Contents. The court reporter or other authorized transcriber shall include at the beginning of each volume of the verbatim report of proceedings should include a title page and a table of contents.

(1) The title page should include the following:

(A) cCase name,

(B) tTrial court and appellate cause numbers,

(C) dDate(s) of hearings,

(D) tTrial court judge(s),

(E) Names of attorneys at trial of record on appeal, and the (F) nName, business address and telephone number of each court reporter or other authorized person transcriber.

(2) The table of contents should shall follow the title page and shall indicate, under the headings listed below, the pages where the following appear:

(1A) Proceedings. The beginning of each proceeding and the nature of that proceeding;

(2B) Witnesses Testimony. The testimony of each witness, the page where it begins, and the type of examination, i.e., direct, cross, re-direct, re-cross, and the page where the plaintiff rests and the defendant rests;

(3C) Exhibits. The marking and admission into evidence of exhibits and depositions;

(4) Motions. All motions and decisions of motions;

(5D) Argument. The pages where opening statements Opening and closing arguments occur, except as otherwise provided in rule 9.2(b) for verbatim reports of proceedings provided at public expense;

(6E) Instructions. All instructions proposed and given. Any other events should be listed under a suitable heading which would help the reviewing court locate separate parts of the verbatim report of proceedings.

(F) Multiple Days. If a volume includes hearings from more than one day, there shall be a separate table of contents for each day.

(f) Form Generally.

(1) Generally. The verbatim report of proceedings must shall be on 8-1/2-by 11-inch paper. Margins should shall be lined 1-3/8 inches from the left and 5/8 inches from the right side of each page. The type should fill the space between the lines. Indentations from the left lined margin should be: 1 space for "Q" and "A"; 3 5 spaces for the body of the testimony; 8 spaces for commencement of a paragraph; and 10 spaces for quoted authority. Typing should be double spaced or 1-1/2 spaced except that comments by the reporter should be single spaced. If double spaced, the The page should have 25 lines of type. If 1-1/2 spaced, the page should have 33 lines of type. Type must be pica type or its equivalent with no more than 10 characters an inch.

(A) Witnesses Designated/Examination. Indicate at the top or bottom of each page the name of the witness and whether the examination is on direct, cross, re-direct, re-cross, or rebuttal.

(B) Jury In/Out. Indicate when the jury is present, when the jury leaves, and when the jury returns.

(C) Bench/Side Bar Conferences. Designate whether a bench/side bar conference is on or off the record.

(D) Chamber Conferences. If the conference is recorded, note the presence or absence of persons participating in chamber conferences.

(E) Speaker/Event Identification. Identify speakers and events that occur throughout the proceedings in capital letters centered on the appropriate line. For example: recess/court reconvene; direct examination, cross examination, re-direct examination, re-cross examination, plaintiff rests; defendant's evidence: direct examination, cross examination, re-direct examination, re-cross examination, defense rests; instructions, conference, closing arguments: for plaintiff, for defense, and rebuttal.

(2) Volume and Pages.

(A) Pages in each volume of the verbatim report of proceedings shall be numbered consecutively.

(B) Each volume shall include no more than 200 pages. The volumes shall be either bound or fastened securely.

(3) Copies. The verbatim report of proceedings should be legible, clean and reproducible.

RAP 9.5

filing and service of report of proceedings --

objections

(a) Generally. The party seeking review must file an agreed or narrative report of proceedings with the clerk of the trial court within 90 45 days after review is accepted by the appellate court the statement of arrangements is filed. The court reporter or person authorized to prepare the verbatim report of proceedings must file it a verbatim report of proceedings within 90 45 days after review is accepted the statement of arrangements is filed and all named court reporters are served. If the proceeding being reviewed was recorded on videotape, the transcript must be filed by the transcriber with the clerk of the trial court within 90 45 days after review is accepted by the appellate court the statement of arrangements is filed and all named court reporters are served. The party who caused a report of proceedings to be filed should at the time of filing the report of proceedings serve one copy on an adverse party and serve notice that the report of proceedings has been filed and file proof of the service on all other parties.

(1) A party filing a brief must promptly forward a copy of the verbatim report of proceedings with a copy of the brief to the party with the right to file the next brief. If more than one party has the right to file the next brief, the parties must cooperate in the use of the report of proceedings. The party who files the last brief should return the copy of the report of proceedings to the party who paid for it.

(2) If the transcript was computer-generated, one diskette (using ASCII format with hard page returns) shall be filed with the original verbatim report of proceedings and a second diskette shall be provided to the party who receives the verbatim report of proceedings. The party who files the last brief should return the diskette to the party who paid for the verbatim report of proceedings.

(b) Filing and Service of Verbatim Report of Proceedings. If a verbatim report of proceedings cannot be completed within 90 45 days after review is accepted by the appellate court the statement of arrangements is filed, the court reporter or video transcriber or authorized person shall, no later than 10 days before the report of proceedings is due to be filed, submit an affidavit stating the reasons for the delay to the party who filed the statement of arrangements, the ordered the report of proceedings stating the reasons for the delay. The party who requested the verbatim report of proceedings should move for an extension of time from the appellate court. The clerk will notify the parties of the action taken on the motion. When the court reporter or video transcriber or authorized person files the verbatim report of proceedings, a copy shall be provided to the party who arranged for transcription and either the reporter or video transcriber or authorized person shall serve and file notice of the filing on all other parties. Failure to timely file the verbatim report of proceedings may subject the court reporter or video transcriber or authorized person to sanctions as provided in rule 18.9.

(c) - (d) Unchanged.

(e) Use of Copy of Report of Proceedings. The party who has the right to file the next brief must be given the use of the copy of the report of proceedings. If more than one party has the right to file the next brief, the parties must cooperate in the use of the report of proceedings. When all briefs are filed, the copy of the report of proceedings should be returned to the party who paid for it.

RAP 9.6

designations of clerk's papers and exhibits

(a) Generally. The party seeking review should, within 15 days after review is accepted the notice of appeal is filed or discretionary review is granted, serve on all other parties and file with the trial court clerk and the appellate court clerk a designation of those clerk's papers and exhibits the party wants the trial court clerk to transmit to the appellate court. Any party may supplement the designation of clerk's papers and exhibits prior to or with the filing of the party's last brief. Thereafter, a party may supplement the designation only by order of the appellate court, upon motion. Each party is encouraged to designate only clerk's papers and exhibits needed to review the issues presented to the appellate court.

(b) - (c) Unchanged.

RAP 9.7

preparing clerk's papers and exhibits for appellate

court

(a) Clerk's Papers. The clerk of the trial court shall make copies at cost, not to exceed 50 cents a page, of those portions of the clerk's papers designated by the parties and prepare them for transmission to the appellate court. The clerk shall assemble the copies and number each page of the clerk's papers in chronological order of filing, and bind in volumes of no more than 200 pages. The clerk shall prepare a cover sheet for the papers with the title "Clerk's Papers" and prepare an alphabetical index to the papers. The clerk shall promptly send a copy of the index to each party. The reproduction costs must be paid to the trial court clerk within 14 days of receipt of the index. Failure to do so may result in sanctions under rule 18.9. Upon receipt of payment, the clerk shall forward the clerk's papers to the appellate court.

(b) - (c) Unchanged.

RAP 9.8

transmitting record on review

(a) Unchanged.

(b) Cumbersome Exhibits. The clerk of the trial court shall transmit to the appellate court exhibits which are difficult or unusually expensive to transmit only if the appellate court directs or if a party makes arrangements with the clerk to transmit the exhibits at the expense of the party requesting the transfer of the exhibits. No weapons, controlled substances, or currency shall be forwarded unless directed by the appellate court.

(c) Unchanged.

RAP 9.10

correcting or supplementing record after

transmittal to appellate court

If a party has made a good faith effort to provide those portions of the record required by rule 9.2(b), the appellate court will not ordinarily dismiss a review proceeding or affirm, reverse, or modify a trial court decision or administrative adjudicative order certified for direct review by the superior court because of the failure of the party to provide the appellate court with a complete record of the proceedings below. If the record is not sufficiently complete to permit a decision on the merits of the issues presented for review, the appellate court may, on its own initiative or on the motion of a party (1) direct the transmittal of additional clerk's papers and exhibits or administrative records and exhibits certified by the administrative agency, or (2) correct, or direct the supplementation or correction of, the report of proceedings. The appellate court may impose sanctions as provided in rule 18.9(a) as a condition to correcting or supplementing the record on review. The party directed or permitted to supplement the record on review must file either a designation of clerk's papers as provided in rule 9.6 or a statement of arrangements as provided in rule 9.2 within the time set by the appellate court.

RAP 10.1

briefs which may be filed

(a) - (c) Unchanged.

(d) Pro Se Supplemental Brief in Criminal Case. A defendant/appellant in a review of a criminal case may file a brief supplementing the brief filed by the defendant/appellant's counsel, but only if the defendant/appellant files a notice of intention to file a pro se supplemental brief. The court will not accept a pro se supplemental brief from a defendant/respondent. The notice of intent should be filed within 30 days after the defendant/appellant has received the brief prepared by defendant/appellant's counsel, a notice from the clerk of the appellate court advising the defendant/appellant of the substance of this section, rules 10.2(e), and 10.3(d), and a form of notice of intention to file a pro se supplemental brief. The clerk will advise all parties if the defendant/appellant files the notice of intention. If a defendant/appellant files a notice of intent to file a pro se supplemental brief, the appellate court will provide a copy of the verbatim report of proceedings to the defendant/appellant. The cost for reproducing the verbatim report of proceedings for an indigent defendant/appellant will be reimbursed to the appellate court from the appellate indigent defense fund.

(e) Unchanged.

(f) Briefs in Cases Involving Cross Review. If a cross review is filed, the party first filing a notice of appeal or notice of discretionary review is deemed the appellant or petitioner for the purpose of this title, unless the parties otherwise agree or the appellate court otherwise orders. The following briefs may be filed in cases involving cross review: (1) brief of appellant, (2) brief of respondent/cross appellant, (3) reply brief of appellant/cross respondent, and (4) reply brief of cross respondent.

(g) Unchanged.

(h) Other Briefs. The appellate court may in a particular case, on its own motion or on motion of a party, authorize or direct the filing of briefs on the merits other than those listed in this rule.

RAP 10.2

time for filing briefs

(a) - (c) Unchanged.

(d) Reply Brief. A reply brief of an appellant or petitioner should be filed with the appellate court within the sooner of 30 days after service of the brief of respondent or unless oral argument is set fewer than 30 days after the brief of respondent is filed. In that instance, the reply brief must be filed at least 14 days before oral argument.

(e) Pro Se Supplemental Brief in Criminal Case. A pro se supplemental brief in a criminal case should be filed with the appellate court within 60 days after the defendant/appellant has received been served with a verbatim the respondent's brief and has had the opportunity to review the report of proceedings.

(f) - (g) Unchanged.

(h) Service of Briefs. At the time a party files a brief, the party should serve one copy on every other party and on any amicus curiae, and file proof of service with the appellate court. In a criminal case in which the defendant is the appellant, appellant's counsel shall serve the appellant and file proof of service with the appellate court. Service and proof of service should be made in accordance with rules 18.5 and 18.6.

(i) Unchanged.

RAP 10.3

content of briefs

(a) Brief of Appellant or Petitioner. The brief of the appellant or petitioner should contain under appropriate headings and in the order here indicated:

(1) - (6) Unchanged.

(7) Appendix. An appendix to the brief if deemed appropriate by the party submitting the brief. An appendix may not include materials not contained in the record on review without permission from the appellate court, except as provided in rule 10.4(c).

(b) - (c) Unchanged.

(d) Pro Se Supplemental Brief in Criminal Case. The pro se supplemental brief in a criminal case should be limited to those matters which defendant/appellant believes have not been adequately covered by the brief filed by the defendant/appellant's counsel.

(e) Amicus Curiae Brief. The brief of amicus curiae should conform to section (a), except assignments of error are not required and the brief should set forth a separate section regarding the identity and interest of amicus and be limited to the issues of concern to amicus. Amicus must review all briefs on file and avoid repetition of matters in other briefs.

(f) - (h) Unchanged.

RAP 10.4

preparation and filing of brief by party

(a) Typing or Printing Brief. Briefs shall conform to the following requirements:

(1) One An original and one legible, clean, and reproducible copy of the brief must be filed with the appellate court. The original brief should be printed or typed in black on 20-pound substance 8-1/2- by 11-inch white paper. Margins should be at least 2 inches on the left side and 1-1/2 inches on the right side and on the top and bottom of each page.

(2) The text of any brief typed or printed in a proportionally spaced typeface must appear in print as 12 point or larger type with no more than 10 characters per inch and double spaced. The same typeface and print size should be standard throughout the brief, except that footnotes may appear in print as 10 point or larger type and be the equivalent of single spaced. and quotations Quotations may be the equivalent of single spaced. Except for material in an appendix, the typewritten or printed material in the brief shall not be reduced or condensed by photographic or other means.

(3) The text of any brief typed or printed in a monospaced typeface shall be done in pica type or the equivalent at no more than 10 characters per inch. The lines must be double spaced. Quotations and footnotes may be single spaced. Except for material in an appendix, the typewritten or printed material in the brief shall not be reduced or condensed by photographic or other means.

(b) Length of Brief. A brief of appellant, petitioner, or respondent, and a pro se brief in a criminal case should not exceed 50 pages. A Appellant's reply brief should not exceed 25 pages. An amicus curiae brief, or answer thereto, should not exceed 20 pages. In a cross-appeal, the brief of appellant, brief of respondent/cross appellant, and reply brief of appellant/cross respondent should not exceed 50 pages and the reply brief of the cross respondent should not exceed 25 pages. For the purpose of determining compliance with this rule appendices, the title sheet, table of contents, and table of authorities are not included. For compelling reasons the court may grant a motion to file an over-length brief.

(c) Text of Statute, Rule, Jury Instruction, or the Like. If a party presents an issue which requires study of a statute, rule, regulation, jury instruction, finding of fact, exhibit, or the like, the party should type the material portions of the text out verbatim or include them by copy in the text or in an appendix to the brief.

(d) Motion in Brief. A party may include in a brief only a motion which, if granted, would preclude hearing the case on the merits.

(e) Reference to Party. References to parties by such designations as "appellant" and "respondent" should be kept to a minimum. It promotes clarity to use the designations used in the lower court, the actual names of the parties, or descriptive terms such as "the employee," "the injured person," and "the taxpayer."

(f) Reference to Record. A reference to the record should designate the page and part of the record. Exhibits should be referred to by number. The clerk's papers should be abbreviated as "CP"; exhibits should be abbreviated as "Ex"; and the report of proceedings should be abbreviated as "RP." Suitable abbreviations for other recurrent references may be used.

(g) Citations. Citations must be in conformity with the form used in current volumes of the Washington Reports. Decisions of the Supreme Court and of the Court of Appeals must be cited to the official report thereof and should include the national reporter citation and the year of the decision. The citation of other state court decisions should include both the state and national reporter citations. The citation of a United States Supreme Court decision should include the United States Reports, the United States Supreme Court Reports Lawyers' Edition, and the Supreme Court Reporter. The citation of a decision of any other federal court should include the federal reporter citation and the district of the district court or circuit of the court of appeals deciding the case. Any citation should include the year decided and a reference to and citation of any subsequent decision of the same case.

(h) Unpublished Opinions. A party may not cite as an authority an unpublished opinion of the Court of Appeals. Unpublished opinions of the Court of Appeals are those opinions not published in the Washington Appellate Reports.

RAP 10.5

reproduction and service of briefs by clerk

(a) Reproduction of Brief. The appellate court commissioner or clerk will arrange for the economical reproduction of each brief and bill the party or amicus filing the brief for the cost of reproduction. Each brief will be reproduced in the number of copies deemed necessary by the commissioner or clerk. The party or amicus must pay the cost of reproduction of the brief within 10 days after receiving the bill from the clerk. The appellate court commissioner or clerk may permit, under appropriate standards, a governmental party to reproduce and directly supply to the commissioner or clerk the number of copies required by the court in lieu of reproduction of the briefs being made by the court.

(b) Distribution of Brief. A party filing a brief must serve it in accordance with rules 10.2(h) and 18.5(a). The time for filing the next brief shall run from the time the preceding brief is served. In addition, after the briefs filed by the parties are reproduced, the clerk will send two copies of each brief to each party and one each to the defendant in a criminal case and to any amicus curiae. The state law librarian shall determine how many copies of briefs from the Supreme Court and the Court of Appeals are to be transmitted to the State Law Library. The briefs will be transmitted by the clerks and provided at no cost to the State Law Library.

(c) Service and Notice to Defendant Appellant in Criminal Case when Defendant is Appellant. In a criminal case, the clerk will, at the time of filing of the defendant/appellant's brief, serve the defendant/appellant with a notice and form as provided in rule 10.1(d).

RAP 11.3

date of argument

(a) Unchanged.

(b) Postponement Rescheduling. A request to postpone reschedule oral argument must be made by motion filed reasonably in advance of within 15 days of receipt of the letter setting the date fixed for oral argument, except upon a showing of good cause.

RAP 12.4

motions for reconsideration of decision terminating

review

(a) - (d) Unchanged.

(e) Length -- One Copy. The motion, answer, or reply should not exceed 25 pages in length if double spaced or 20 pages if one and one-half spaced unless additional length is authorized under rule 18.8. Only one legible copy should be filed.

(f) - (h) Unchanged.

RAP 12.5

mandate

(a) Unchanged.

(b) When Mandate Issued by Court of Appeals. The clerk of the Court of Appeals will issues the mandate for a Court of Appeals decision terminating review upon stipulation of the parties that no motion for reconsideration or petition for review will be filed. In the absence of that stipulation, and except to the extent the mandate is stayed as provided in rule 12.6, the clerk will issues the mandate:

(1) Thirty (30) days after the decision is filed, unless (i) a motion for reconsideration of the decision has been earlier filed, (ii) a petition for review to the Supreme Court has been earlier filed, or (iii) the decision is a ruling of the commissioner or clerk and a motion to modify the ruling has been earlier filed.

(2) - (3) Unchanged.

(c) - (d) Unchanged.

(e) Certificate of Finality. A Certificate of Finality is the written notification by the clerk of the appellate court to the trial court and to the parties of the completion of the proceeding in the appellate court when review is not accepted. The clerk of the Court of Appeals will issue the Certificate of Finality 30 days after the decision is filed unless (i) a motion to modify has been earlier filed or (ii) a motion for discretionary review to the Supreme Court has been earlier filed.

RAP 12.7

finality of decision

(a) Unchanged.

(b) Supreme Court. The Supreme Court loses the power to change or modify a decision of the Court of Appeals upon issuance of the mandate of the Court of Appeals in accordance with rule 12.5, except when the mandate is recalled as provided in rule 12.9. The Supreme Court loses the power to change or modify a Supreme Court decision upon issuance of the mandate of the Supreme Court in accordance with rule 12.5, except when the mandate is recalled as provided in rule 12.9.

(c) - (d) Unchanged.

RAP 13.4

discretionary review of decision terminating review

(a) How to Seek Review. A party seeking discretionary review by the Supreme Court of a Court of Appeals decision terminating review must file a petition for review or an answer to the petition which raises new issues. The petition for review must be filed in the Court of Appeals within 30 days after an order is filed denying a timely motion for reconsideration of all or any part of that decision. If the petition for review is filed prior to the Court of Appeals determination on the motion for reconsideration or on a motion to publish, the petition will not be forwarded to the Supreme Court until the Court of Appeals files an order on all such motions. If no motion for reconsideration of all or part of the Court of Appeals decision is made, a petition for review must be filed within 30 days after the decision is filed. The first party to file a petition for review must, at the time the petition is filed, pay the statutory filing fee to the clerk of the Court of Appeals in which the petition is filed.

(b) - (i) Unchanged.

RAP 13.7

proceedings after acceptance of review

(a) - (d) Unchanged.

(e) Supplemental Briefs, Special Requirements.

(1) - (2) Unchanged.

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

RAP 14.2

who is entitled to costs

A commissioner or clerk of the appellate court will award costs to the party that substantially prevails on review, unless the appellate court directs otherwise in its decision terminating review. If there is no substantially prevailing party on review, the commissioner or clerk will not award costs to any party. An award of costs will specify the party who must pay the award. In a criminal case involving an indigent juvenile or adult offender, an award of costs will apportion the money owed between the county and the State. A party who is a nominal party only will not be awarded costs and will not be required to pay costs. A "nominal party" is one who is named but has no real interest in the controversy.

RAP 14.3

expenses allowed as costs

(a) Generally. Only statutory attorney fees and the reasonable expenses actually incurred by a party for the following items which were reasonably necessary for review may be awarded to a party as costs: (1) preparation of the original and one copy of the report of proceedings, (2) copies of the clerk's papers, (3) preparation of a brief or other original document to be reproduced by the clerk, as provided in rule 14.3(b), (4) transmittal of the record on review, (5) expenses incurred in superseding the decision of the trial court, but not ordinarily greater than the usual cost of a commercial surety bond, (6) the lesser of the charges of the clerk for reproduction of briefs, petitions, and motions, or the costs incurred by the party reproducing brief as authorized under rule 10.5(a), and (7) the filing fee, and (8) such other sums as provided by statute. If a party has incurred an expense for one of the designated items, the item is presumed to have been reasonably necessary for review, which presumption is rebuttable. The amount paid by a party for the designated item is presumed reasonable, which presumption is rebuttable.

(b) Unchanged.

RAP 14.6

award of costs

(a) - (b) Unchanged.

(c) Transmitting Judgment for Costs. The commissioner or clerk will award costs in the mandate or in a supplemental post-mandate judgment ruling or order. An award of costs may be enforced as part of the judgment in the trial court.

RAP 16.9

personal restraint petition -- response to petition

The respondent must, within 20 30 days after the petition is served, unless the time is extended by the commissioner or clerk for good cause shown, serve and file a response to the petition. The response must answer the allegations in the petition. The response must state the authority for the restraint of petitioner by respondent and, if the authority is in writing, include a conformed copy of the writing. If an allegation in the petition can be answered by reference to a record of another proceeding, the response should so indicate and include a copy of those parts of the record which are relevant. Respondent should also identify in the response all material disputed questions of fact.

RAP 16.10

personal restraint petition--briefs

(a) Briefs Allowed. The following briefs may be, but need not be, filed:

(1) Unchanged.

(2) Petitioner's Reply Brief. Petitioner's reply brief, which should be filed within 20 30 days after the answering brief is served on petitioner. If the brief is mailed, it must be mailed within 17 days after the answering brief is served on petitioner.

(b) - (e) Unchanged.

RAP 16.11

personal restraint petition--consideration of

petition

(a) Generally. The Chief Judge will consider the petition promptly after the time has expired to file petitioner's reply brief. The Chief Judge determines at the initial consideration if the petition will be retained by the appellate court for determination on the merits or transferred to a superior court for determination on the merits or for a reference hearing. For the purpose of rules in this Title 16, "Chief Judge" includes "Acting Chief Judge."

(b) - (c) Unchanged.

RAP 17.4

filing and service of motion -- answer to motion

(a) Unchanged.

(b) Emergency Motion. In an emergency, a person may present a motion to the commissioner or clerk on notice less than that required by section (a) and at any time and place the commissioner or clerk will make available to hear the motion. The movant shall notify all parties, amicus, and other persons entitled to notice of the date, time, and place the motion will be heard. The notice may be written or oral. The person presenting the motion must, at the time the motion is heard made, file an affidavit stating the type of notice given and the time and date the notice was given to each person. The court will notify the parties and other persons entitled to notice of the date, time, and place the motion will be heard. The commissioner or clerk may decide the motion only if satisfied (1) that adequate relief cannot be given if a decision of the motion is delayed to permit the notice required by section (a), and (2) the movant has taken reasonable steps under the circumstances to give notice to persons who would be affected by the ruling sought.

(c) Summary Determination.

(1) The commissioner or clerk may summarily determine without oral argument, and without awaiting a response, a motion which, in the judgment of the commissioner or clerk, does not affect a substantial right of a party. The commissioner or clerk may also hear and decide verbal ex parte motions which, in the judgment of the commissioner or clerk, involve minor matters and seek relief which would be routinely granted without sanctions.

(2) If the commissioner or clerk makes a summary determination granting a motion under subsection (c)(1) of this rule, and a party files and serves a timely responsive pleading after the ruling has been entered, the commissioner or clerk will treat the responsive pleading as a motion for reconsideration of the ruling. If such a responsive pleading is filed, the commissioner or clerk may permit the moving party to file a reply and may allow oral argument on the motion.

(g) Form of Papers and Number of Copies. All papers relating to motions or responses should be filed in duplicate 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).

RAP 17.5

oral argument of motions

(a) - (c) Unchanged.

(d) Time Allowed, Order, and Conduct of Oral Argument. If oral argument is held, each side is allowed 10 minutes for argument of a motion. The Supreme Court and each division of the Court of Appeals will define by general order the amount of time each side is allowed for oral argument. If there is more than one party to a side in a single review or in a consolidated review, the parties on that side will share the allotted time equally, unless the parties on that side agree to some other allocation. The appellate court may grant additional time for oral argument upon motion of a party. The moving party is entitled to open and conclude oral argument. Rule 11.5 applies to the conduct of argument of motions.

(e) Telephone Argument. The appellate court may direct the parties to conduct oral argument of a motion to the commissioner or clerk or to the court by means of a conference telephone call. The expense of the call will be shared equally paid by the parties moving party, unless the appellate court directs otherwise in the ruling or decision on the motion. A party may request telephone conference argument by letter or telephone call to the appellate court clerk.

RAP 18.3

withdrawal by counsel

(a) Criminal Cases.

(1) Counsel for a defendant in a criminal case may withdraw only with the permission of the appellate court on a showing of good cause. The appellate court will not ordinarily grant permission to withdraw after the opening brief has been filed. A motion to withdraw must be served on all parties and on the defendant personally. Counsel must serve the motion to withdraw on all parties, and may serve the defendant by mail at the last known address. An affidavit of service must be filed with the motion to withdraw.

(2) - (4) Unchanged.

(b) Unchanged.

RAP 18.6

computation of time

(a) - (b) Unchanged.

(c) Filing by Mail. A brief authorized by Title 10 or Title 13 is timely filed if mailed to the appellate court within the time permitted for filing. Except as provided in rule 17.4, any other paper is timely filed only if it is received by the appellate court within the time permitted for filing.

RAP 18.9

violation of rules

(a) Sanctions. The appellate court on its own initiative or on motion of a party may order a party or counsel, or a court reporter or other authorized person preparing a verbatim report of proceedings, who uses these rules for the purpose of delay, files a frivolous appeal, or fails to comply with these rules to pay terms or compensatory damages to any other party who has been harmed by the delay or the failure to comply or to pay sanctions to the court. The appellate court may condition a party's right to participate further in the review on compliance with terms of an order or ruling including payment of an award which is ordered paid by the party. If an award is not paid within the time specified by the court, the appellate court will transmit the award to the superior court of the county where the case arose and direct the entry of a judgment in accordance with the award.

(b) - (d) Unchanged.

RAP 18.23

mail addressed to appellate courts

All briefs and other papers submitted to the Supreme Court and the Court of Appeals to be filed or considered in a case should be addressed to the clerk of the appropriate court and should clearly show, in the brief or paper itself or in a cover letter, (1) the name of the court to which the brief or paper is being submitted, (2) the caption of the case, and (3) the docket number of the case in the appellate court or, if none, the docket number of the case in the trial court and the name of the trial court.

A pleading will be considered timely filed by the Supreme Court and the Court of Appeals if it is timely filed in any Division of the Court of Appeals or in the Supreme Court.

proposed amendments to rules for appeal

of decisions of courts of limited

jurisdiction

RALJ 8.1 [RESERVED]

who may present argument

A party of record who has failed to file a brief may present oral argument only with leave of court.

RALJ 9.1

basis for decision on appeal

(a) - (b) Unchanged.

(c) Limitation on Scope of Review. The superior court will ordinarily limit its consideration of issues to those asserted in the notice of appeal or in an amending statement filed pursuant to rule 2.6(d). [Reserved.]

(d) - (h) Unchanged.

RALJ 9.3

costs

(a) - (b) Unchanged.

(c) Expenses Allowed as Costs. Only the reasonable expenses actually incurred by a party for the following items which were reasonably necessary for review may be awarded to a party as costs: (1) statutory attorney fees allowed for a superior court nonjury trial, (2) the superior court filing fee, (3) the expense of obtaining a copy of the record of proceedings and the log for the record as provided in rule 6.3, (4) the cost of preparing the transcript as required by rule 6.3A, and (5) the expense of bonds given in connection with the appeal, and (6) such other sums as provided by statute.

(d) - (g) Unchanged.

RALJ 10.2

dismissal of appeal

(a) Unchanged.

(b) Extension of Time; Restrictions. The superior court may, on its own initiative or on motion of a party, extend the time for filing a notice of appeal, but only in extraordinary circumstances and to prevent a gross miscarriage of justice. The superior court will ordinarily hold that the desirability of finality of decisions outweighs the privilege of a litigant to obtain an extension of time under this section. A motion to extend time is determined by the superior court to which the untimely notice of appeal is directed. [Reserved.]

(c) Unchanged.

RALJ 10.3

[new rule]

extension and reduction of time

(a) Generally. The superior court may, on its own initiative or on motion of a party, enlarge or shorten the time within which an act must be done in a particular case in order to serve the ends of justice, subject to the restrictions in section (c).

(b) Procedure for Motion. A party moving to extend or reduce time shall file a written motion with the Superior Court and serve it upon all non-moving parties. The motion shall state (1) the date the act is scheduled or required to occur; (2) the new date requested; and (3) the specific reasons for the motion. The motion shall be considered without oral argument unless called for by the superior court. A non-moving party may respond to the motion in writing. A response must be filed with the superior court and served upon the moving party within five days after service of the motion to extend or reduce time.

(c) Restrictions on Extension of Time.

(1) The superior court will only in extraordinary circumstances and to prevent a gross miscarriage of justice extend the time within which a party must file a notice of appeal. The superior court will ordinarily hold that the desirability of finality of decisions outweighs the privilege of a litigant to obtain an extension of time under this section. A motion to extend time is determined by the superior court to which the untimely notice of appeal is directed.

(2) The superior court will not enlarge the time provided in rule 9.2 within which the superior court enters and transmits its decision.

(d) Terms. The remedy for violation of these rules is set forth in rule 10.1. The superior court may condition the exercise of its authority under this rule by imposing terms as provided in rule 10.1.

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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