IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO CR 28(d), CR 35, CR 49, MAR 1.2, MAR 3.2, MAR 4.1 AND MAR 7.1

) ) ) )

ORDER NO. 25700-A-695

     The Washington State Bar Association having recommended the adoption of the proposed amendments to CR 28(d), CR 35, CR 49, MAR 1.2, MAR 3.2, MAR 4.1 and MAR 7.1, and the Court having approved the proposed amendments for publication;

     Now, therefore, it is hereby

     ORDERED:

     (a) That pursuant to the provisions of GR 9(f), the proposed amendments as attached hereto are to be published for comment in the Washington Reports, the Washington Register, Washington State Bar Association and Office of the Administrator for the Court's websites in January 2001.

     (b) The purpose statement as required by GR 9(d), 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, 2001. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Lisa.Bausch@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 7th day of December 2000.

	Richard P. Guy
	CHIEF JUSTICE

     (1) Background: The Court Rules and Procedures Committee drafted the proposed amendment in response to a suggestion from the Washington Shorthand Reporters Association.

     (2) Purpose: The committee received a suggested rule change from the Washington Shorthand Reporters Association that raised the issue of equal treatment by court reporters of all parties in a lawsuit. The Association was concerned about a practice occurring both in Washington and around the country whereby certain parties contract with a court reporting service for exclusive arrangements in the preparation or delivery of transcripts, preferred fees for such services, or similar special treatment. In the view of the Association, a member entering into such a contract would violate the Association's ethical code requirement to deal impartially and equally with all parties.

     The committee agreed that such practices raised two important issues: (a) that court reporters be impartial, and (b) that non-contracting parties not "subsidize" special fee arrangements made by a contracting party. The proposed amendment thus requires that any arrangement or agreement concerning court reporting services, or the fees for those services, be offered to all parties in a case on equal terms.

     (3) Washington State Bar Association Action: The Board of Governors recommends the amendment.

     (4) Supporting Materials: Correspondence between Karen Larsen, of the Washington Shorthand Reporters Association, and the WSBA Court Rules and Procedures Committee or members thereof; report of the subcommittee addressing the issues raised by the Reporters Association.

     (5) Spokespersons: Susan Mindenbergs, Chair, WSBA Court Rules and Procedures Committee.

     (6) Hearing: Not recommended.

     (a) Unchanged.

     (b) Unchanged.

     (c) Unchanged.

     (d) Equal Terms Required. Any arrangement concerning court reporting services or fees in a case shall be offered to all parties on equal terms. This rule applies to any arrangement or agreement between the person before whom a deposition is taken or a court reporting firm, consortium or other organization providing a court reporter, and any party or any person arranging or paying for court reporting services in the case, including any attorney, law firm, person or entity with a financial interest in the outcome of the litigation, or person or entity paying for court reporting services in the case.

     (1) Background: The Court Rules and Procedures Committee drafted the proposed amendments. The subcommittee that prepared the proposal submitted it for comment to the Executive Board of the WSBA Litigation Section as well as to the Washington State Trial Lawyers Association and the Washington Defense Trial Lawyers Association.

     (2) Purpose: The WSBA Court Rules and Procedures Committee proposed several amendments to this rule. A few are intended to improve the structure of the rule, clarify language, or eliminate language believed to be unnecessary in light of relevant legislation. Others are more substantive.

     Section (a) is retitled simply "examination" and is subdivided into three parts: (1) order for examination, (2) representative at examination, and (3) recording of examination. The language of the current rule is retained, with minor changes for clarification. The proposed addition would allow a videotape of the examination "on agreement of the parties."

     The WSBA Court Rules and Procedures Committee debated the videotape provision at length. In general, proponents of videotaping argued that it would ultimately benefit both sides of a case. Parties being examined would have one more assurance of professionalism and objectivity, while the party for whom the exam is conducted would have the added "authority" of a pictorial record showing the impartiality, safety and thoroughness of the exam.

     Opponents expressed concern about examined parties possibly exaggerating or "playing to the camera," especially if videotaping were allowed solely at that party's option. They also suggested that this would increase the distrust between the legal and medical professions, and that fewer doctors would be willing to conduct examinations if they knew they were going to be videotaped.

     Finally, some committee members argued that privacy was a major concern and that the examinee's wishes should govern whether or not there was a videotape.

     In the end, the committee voted to recommend this change along with the others. The proposal is ultimately a modest one, giving voice to what the parties may already do - agree to a video recording. Nevertheless, the committee believed that incorporation of this language would enhance the bar's experience with this tool in this setting.

     The amendment to section (b) would require the party causing the examination to deliver the examiner's report to the party or person examined, so that the latter would not need to request a copy as under the present rule. The amendment goes on to require delivery "within 45 days of the examination and in no event less than 30 days prior to trial."

     The intent is to give the party against whom the examination is ordered a reasonable opportunity to schedule depositions or otherwise prepare for trial. However, these deadlines may be "altered by agreement of the parties or by order of the court." The sanction for failure to deliver the report in conformance with the rule is stiffened by requiring the court to exclude the examiner's testimony "unless good cause for noncompliance is shown."

     The "reciprocity" provision was deleted for a variety of reasons. It has infrequent application and any report which describes occurrence-related care is already available under RCW 5.60.060 (4)(b).

     Existing section (b)(2) would be deleted under the amendments. RCW 5.60.060 (4)(b) already addresses the question of privilege and its waiver.

     Existing section (b)(3) is renumbered as section (c) and modified to be consistent with other proposed amendments. The last sentence is deleted because it is superfluous under RCW 5.60 and the existing discovery provided for under the current court rules. See CR 26 (b)(5) and (6).

     (3) Washington State Bar Association Action: The Board of Governors recommends the amendments.

     (4) Supporting Materials: Excerpts of minutes of meeting at which proposed changes were discussed and adopted; copy of RCW 5.60.060.

     (5) Spokespersons: Susan Mindenbergs, Chair, WSBA Court Rules and Procedures Committee.

     (6) Hearing: Not recommended.

     (a) Order for Examination.

     (1) Order for Examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical examination by a physician, or mental examination by a physician or psychologist or to produce for examination the person in the party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

     (2) Representative at Examination. The party being examined may have a representative present at the examination, who may observe the examination but not interfere with or obstruct the examination.

     (3) Recording of Examination. Unless otherwise ordered by the court, the party being examined or the that party's representative may make an audiotape recording of the examination which shall be made in an unobtrusive manner. A videotape recording of the examination may be made on agreement of the parties.

     (b) Report of Examining Physician or Psychologist.

     (1) If requested by the party against whom an order is made under rule 35(a) or the person examined, tThe party causing the examination to be made shall deliver to the requesting party or person examined a copy of a detailed written report of the examining physician or psychologist setting out the examiner's findings, including results of all tests made, diagnosis and conclusions, together with like reports of all earlier examinations of the same condition, regardless of whether the examining physician or psychologist will be called to testify at trial.

     The report shall be delivered within 45 days of the examination and in no event less than 30 days prior to trial. These deadlines may be altered by agreement of the parties or by order of the court. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that the party is unable to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and iIf a physician or psychologist fails or refuses to make a report in compliance herewith the court shall may exclude the examiner's testimony if offered at the trial, unless good cause for noncompliance is shown.

     (2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy regarding the testimony of every other person who has examined or may thereafter examine him in respect if the same mental or physical condition.

     (3c) Examination by Agreement. This subsection Subsections (a)(2) and (3) and (b) applyies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subsection does not preclude discovery of a report of an examining physician or the taking of a deposition of the physician in accordance with the provisions of any other rule.

     (1) Background: The Court Rules and Procedures Committee drafted the proposed amendment in response to a request from the Washington Pattern Jury Instruction Committee to consider drafting a rule addressing the use of special interrogatories in civil cases. In addition to proposing an amendment to CR 49, the Committee recommends that WPI 1.11 either be eliminated or be amended to conform to proposed new CR 49(l). The purpose statement set forth below incorporates some of the research and analysis provided to the Court Rules and Procedures Committee by WPI Committee staff.

     (2) Purpose: The existing version of WPI 1.11 allows the court to choose between what is referred to as the "any juror" rule or the "same juror" rule when instructing the jury on special verdicts. Jurors may be instructed that ten out of twelve (or five out of six) of them must agree on the first question (perhaps whether a defendant is liable for negligence) and then proceed to the second question (such as the percentage of fault to be allocated to that defendant). Under the "same juror" rule, a core group of the same ten (or five) jurors must agree on both questions. Under the "any juror" rule, any ten (or five) may agree on any question.

     Case law in Washington has not clearly settled the issue of whether this is a "same juror" or "any juror" state. Bullock v. Yakima Tranportation, 108 Wash. 413 (1919), seemed to adopt the "any juror" rule. While Bullock has not been expressly overruled or distinguished, the decision in Devoni v. Department of Lab. & Ind., 36 Wn.2d 218 (1950) appeared to require a "same juror" rule. Later cases have suggested that the issue has not been resolved. Hence, WPI 1.11 was drafted to allow the trial court to choose.

     Until the late 1960's, Washington was the only state using the "any juror" rule. All the other states addressing the issue had adopted the "same juror" rule. A number of states have since reconsidered and adopted an "any juror" approach. Legal commentators have suggested that the modern trend is toward the "any juror" rule, although which is the majority rule is a matter of conjecture. Our neighboring state of Oregon uses the "same juror" rule when questions are "interdependent" but uses the "any juror" rule when the questions are "independent and separate."

     The Washington Pattern Jury Instruction Committee asked both the Washington State Bar Association and the Superior Court Judges Association to consider drafting a rule that would clearly resolve the question on way or another. The WSBA Court Rules and Procedures Committee considered this matter and elected to propose an "any juror" rule.

     Although it does allow for inconsistencies (e.g., a juror who believed a defendant was not negligent at all could then vote to find that defendant guilty of some percentage of negligence), an "any juror" rule would also allow more verdicts to be achieved. The "same juror" rule would, in the committee's estimation, result in more hung juries. In fact, a New Jersey superior court suggested that the "any juror" rule avoided several problems: (1) preventing unjust verdicts because of recalcitrant jurors, (2) preventing loss of litigants' and judicial resources because of mistrials, and (3) alleviating court congestion and unfairness resulting from prolonged delays in jury deliberations. Internal Consistency of Ohio Interrogatories: O'Connell v. Chesapeake & Ohio Railroad, 61 U. Cin. L. Rev. 365, 378 (1992).

     The WSBA Committee rejected the Oregon approach; a major concern was that it would generate litigation over whether issues were "interdependent" or "independent and separate."

     (3) Washington State Bar Association Action: The Board of Governors recommends the amendment.

     (4) Supporting Materials: Correspondence and research memorandum from Washington Pattern Jury Instruction Committee; report of subcommittee of WSBA Court Rules and Procedures Committee.

     (5) Spokespersons: Susan Mindenbergs, Chair, WSBA Court Rules and Procedures Committee.

     (6) Hearing: Not recommended.

     (--) Unchanged.

     (a) - (k). Unchanged.

     (l) Any Juror Verdict. When a jury decides a verdict any juror may vote on any of the questions posed.

     (1) Background: The Court Rules and Procedures Committee drafted the proposed amendment in response to a suggestion from Judge William Downing of the King County Superior Court.

     (2) Purpose: In 1998, the Legislature amended RCW 12.36.050, which governs appeals of small claims to the superior court. The relevant new language provided that "[a]ny mandatory superior court procedures such as arbitration or other dispute resolution will apply as if the cause was originally filed in superior court."

     The proposed amendment is intended to bring MAR 1.2 in line with this recent statutory enactment.

     (3) Washington State Bar Association Action: The Board of Governors recommends the amendment.

     (4) Supporting Materials: None.

     (5) Spokespersons: Susan Mindenbergs, Chair, WSBA Court Rules and Procedures Committee.

     (6) Hearing: Not recommended.

     A civil action, other than an appeal from a court of limited jurisdiction that is not a small claims appeal subject to RCW 12.36.050, is subject to arbitration under these rules if the action is at issue in a superior court in a county which has authorized mandatory arbitration under RCW 7.06, if (1) the action is subject to mandatory arbitration as provided in RCW 7.06, (2) all parties, for purposes of arbitration only, waive claims in excess of the amount authorized by RCW 7.06, exclusive of attorney fees, interest and costs, or (3) the parties have stipulated to arbitration pursuant to rule 8.1.

     (1) Background: The Court Rules and Procedures Committee drafted the proposed amendment in response to a suggestion from Yakima attorney Blaine Gibson.

     (2) Purpose: MAR 3.2 sets forth the authority of the arbitrator. Though a number of items are listed, the rule is silent on the authority of the arbitrator to impose sanctions or award attorney's fees in an appropriate case. It has been suggested that it incongruous to give an arbitrator the authority to issue procedural rulings without giving him or her the authority to enforce those rulings. In fact, a number of Washington counties that have adopted mandatory arbitration have also adopted a local rule giving the arbitrator the authority to impose sanctions and award attorney's fees.

     The WSBA Committee determined that the statewide rule should be amended to give arbitrators this additional authority. While the local rule adopted in such counties as King, Pierce, and Spokane was the model for the proposal, the Committee made what it believed were several improvements.

     First, sanctions may be awarded for a failure to obey "any rule of court," in addition to "an order of the arbitrator."

     Second, the arbitrator must file a "short statement demonstrating the reasons for awarding sanctions."

     Third, the award of sanctions is to be filed "at the same time the arbitration award is filed," rather than as a special award as provided in the local rules. The aggrieved party then has ten days to file a motion asking the court to review the award. The court may overturn the award only on a showing that the award "was not substantially justified or that other circumstances make such award of sanctions unjust." This procedure, the Committee believed, would avoid "interlocutory" review of sanctions awards.

     Note, finally, that a request for review of sanctions "is not affected by the request or failure to request a trial de novo."

     (3) Washington State Bar Association Action: The Board of Governors recommends the amendment.

     (4) Supporting Materials: Letter from Blaine Gibson; copy of local rule adopted in King, Pierce, Spokane and a number of other counties; copies of letters sent to judges in Mandatory Arbitration counties without such a rule asking their opinion, along with the few responses received.

     (5) Spokespersons: Susan Mindenbergs, Chair, WSBA Court Rules and Procedures Committee.

     (6) Hearing: Not recommended.

     An arbitrator has the authority to:

     (1) Decide procedural issues arising before or during the arbitration hearing, except issues relating to the qualifications of an arbitrator;

     (2) Invite, with reasonable notice, the parties to submit trial briefs;

     (3) Examine any site or object relevant to the case;

     (4) Issue a subpoena under rule 4.3;

     (5) Administer oaths or affirmations to witnesses;

     (6) Rule on the admissibility of evidence under rule 5.3;

     (7) Determine the facts, decide the law, and make an award;

     (8) Require a party or attorney or both to pay sanctions, including reasonable costs and attorney's fees, caused by the failure of such party or attorney or both to obey an order of the arbitrator or any rule of court. The arbitrator shall make a special award for such sanctions and shall file such award with the clerk of the superior court at the same time the arbitration award is filed, along with proof of service on the party or attorney against whom sanctions are awarded. The arbitrator shall set forth a short statement demonstrating the reasons for awarding sanctions. The aggrieved party shall have ten days thereafter to file a motion with the court asking for review of the award of sanctions. The court may overturn the award of sanctions only upon a showing that the award was not substantially justified or that other circumstances make such award of sanctions unjust. The court shall enter judgment on the award of sanctions pursuant to rule 6.3 if the aggrieved party does not request review within ten days after the award is filed or if the court upholds the award of sanctions. A request for review of an award of sanctions is not affected by the request or failure to request a trial de novo under rule 7.1.

     (9) Award attorney's fees as authorized by these rules, by contract, or by law.

     (8 10) Perform other acts as authorized by these rules or local rules adopted and filed under rule 8.2. Motions for involuntary dismissal, motions to change or add parties to the case, and motions for summary judgment shall be decided by the court and not by the arbitrator.

     (1) Background: The Court Rules and Procedures Committee drafted the proposed amendment in response to a letter from attorney Morton Tytler.

     (2) Purpose: MAR 4.1 currently provides, in part, that

     Neither counsel nor a party may communicate with the arbitrator except in the presence of, or on reasonable notice to, all other parties.

     The committee agreed that, interpreted literally, the rule was unduly restrictive and particularly problematic in smaller counties. It forbids casual social contact. A sole practitioner doing arbitration, perhaps working part-time and with little or no staff support, could not provide a party with directions to his or her office without violating the rule. Likewise, a lawyer may get a call from another lawyer who is an arbitrator in one case but opposing counsel in a second, unrelated case. They could not discuss the latter case without technically violating the rule.

     The committee's proposed solution is to insert the phrase "regarding the merits of the case" after the word "arbitrator" in the sentence quoted above. This amendment would carry out what the committee believes to be the intent of the rule without making possible rule violations out of truly innocent conduct.

     (3) Washington State Bar Association Action: The Board of Governors recommends the amendment.

     (4) Supporting Materials: Letter from Morton Tytler.

     (5) Spokespersons: Susan Mindenbergs, Chair, WSBA Court Rules and Procedures Committee.

     (6) Hearing: Not recommended.

     No disclosure of any offers of settlement made by any party shall be made to the arbitrator prior to the announcement of the award. Neither counsel nor a party may communicate with the arbitrator regarding the merits of the case except in the presence of, or on reasonable notice to, all other parties.

     (1) Background: The Court Rules and Procedures Committee drafted the proposed amendment.

     (2) Purpose: MAR 7.1 currently provides that the request for a trial de novo "shall be in the following form [the form set forth in the rule]."

     The committee was concerned that if a party deviated even slightly from the form set out in the rule, even because of a typographical error, an argument could be made that there had been no valid request for a trial de novo. The Supreme Court's narrow interpretation of the rule in Nevers v. Fireside, 133 Wn.2d 804, 947 P.2d 721 (1997), although focused on proof of service, was part of the impetus for the suggested rule change.

     The formulation of current MAR 7.1 is also an exception to that employed elsewhere in the court rules, where the requirement is that the form used be "substantially" the same as the one actually printed in the rule. For example, see the plea of guilty form in CrR 4.2(g), the summary memorandum form in CrR 4.5(h), or RAP 18.10, which provides that a person may use "any form which substantially complies with these rules" and that the forms set forth in the Appendix to the RAPs are "only illustrative."

     The committee thus proposes that the rule be amended to provide that the request for a trial de novo "...shall be in substantially the form set forth below [followed by the form currently printed in the rule]."

     (3) Washington State Bar Association Action: The Board of Governors recommends the amendment.

     (4) Supporting Materials: None.

     (5) Spokespersons: Susan Mindenbergs, Chair, WSBA Court Rules and Procedures Committee.

     (6) Hearing: Not recommended.

     (a) Service and Filing. Within 20 days after the arbitration award is filed with the clerk, any aggrieved party not having waived the right to appeal may serve and file with the clerk a written request for a trial de novo in the superior court along with proof that a copy has been served upon all other parties appearing in the case. The 20-day period within which to request a trial de novo may not be extended. The request for a trial de novo shall not refer to the amount of the award and shall be in substantially the following form set forth below:

     [Form unchanged]

     (b) Unchanged.

Reviser's note: The brackets and enclosed material in the text above 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 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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