WSR 05-01-044

RULES OF COURT

STATE SUPREME COURT


[ December 6, 2004 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO CR 1, CR 5, CR 11, CR 15, CR 27, CR 28, CR 30, CR 50, CR 52, CR 59, CR 62, CRLJ 1, CRLJ 5, CRLJ 11, CRLJ 15, CRLJ 50, CRLJ 59, CrR 4.7 AND CrRLJ 47 )

)

)

)

)

)

ORDER

NO. 25700-A-807


The Washington State Bar Association having recommended the adoption of the proposed amendments to CR 1, CR 5, CR 11, CR 15, CR 27, CR 28, CR 30, CR 50, CR 52, CR 59, CR 62, CRLJ 1, CRLJ 5, CRLJ 11, CRLJ 15, CRLJ 50, CRLJ 59, CrR 4.7 and CrRLJ 47, 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(g), the proposed amendments as attached hereto 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 2005.

(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 29, 2005. 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 2nd day of December 2004.
For the Court
Gerry L. Alexander
CHIEF JUSTICE



GR 9 Cover Sheet



Suggested Amendment to Civil Rule (CR) 1

concerning Scope of Rules



Submitted by the Board of Governors of the Washington State Bar Association


Purpose: The suggested amendment adds the words "and administered" to the last sentence of the rule, so that CR 1 will conform to Federal Rule of Civil Procedure (Fed. R. Civ. P.) 1. This language was added to the federal rule in 1993. The comment to the federal amendment explains the rationale as follows:

The purpose of this revision, adding the words "and administered" to the second sentence, is to recognize the affirmative duty of the court to exercise the authority conferred by these rules to ensure that civil litigation is resolved not only fairly, but also without undue cost or delay. As officers of the court, attorneys share this responsibility with the judge to whom the case is assigned.



GR 9 Cover Sheet


Suggested Amendment to Civil Rule (CR) 5

concerning Service and Filing of Pleadings and Other Papers

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: The suggested amendment to CR 5 (b)(7) provides for electronic service where the parties consent in writing. This change incorporates an analogous amendment to Fed. R. Civ. P. 5 (b)(2)(D) and 5 (b)(3) made in 2001. As a practical matter, many lawyers already communicate and transmit pleadings and papers electronically. The suggested amendment authorizes counsel to agree to such electronic service. Consent to such service must be in writing. The comments to the corresponding changes to the federal rule indicate that parties are encouraged to specify the scope and duration of the consent. The specification also should include at least the persons to whom service should be made, the appropriate address or location for such service, and the format for attachments.

In addition, the suggested amendment addresses the issue of time of service. Ordinarily, service is complete upon transmission pursuant to the terms of the written consent. Thus, the risk of non-receipt falls on the person being served. However, when the person serving pleadings or papers learns that attempted service failed, service is not effected. Facsimile and email transmissions customarily show if transmission has failed.

Adoption of the suggested amendment to CR 5 (b)(7) eliminates the need for archaic subsection (h), which is rescinded. To the extent that service by telegraph remains viable, it can occur under the suggested amendment.

The suggested amended rule does not address electronic filing, which is governed by GR 17.


CIVIL RULE 5

SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS


(a) Unchanged.

(b) Service How Made.

(1) (6) Unchanged.

(7) Service by Other Means. Service under this rule may be made by delivering a copy by any other means, including facsimile or electronic means, consented to in writing by the person served. Service by facsimile or electronic means is complete on transmission; service by other consented means is complete when the person making service delivers the copy to the agency designated to make delivery. Service under this subsection is not effective if the party making service learns that the attempted service did not reach the person to be served.

(c) - (g) Unchanged.

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

(i) - (j) Unchanged.


CIVIL RULE 11

SIGNING AND DRAFTING OF PLEADINGS, MOTIONS, AND LEGAL MEMORANDA; SANCTIONS


(a) Every pleading, motion, and legal memorandum of a party represented by an attorney shall be dated and signed by at least one attorney of record in the attorney's individual name, whose address and Washington State Bar Association membership number shall be stated. A party who is not represented by an attorney shall sign and date the party's pleading, motion, or legal memorandum and state the party's address. Petitions for dissolution of marriage, separation, declarations concerning the validity of a marriage, custody, and modification of decrees issued as a result of any of the foregoing petitions shall be verified. Other pleadings need not, but may be, verified or accompanied by affidavit. The signature of a party or of an attorney constitutes a certificate by the party or attorney that the party or attorney has read the pleading, motion, or legal memorandum;, and that to the best of the party's or attorney's knowledge, information, and belief, formed after an inquiry reasonable inquiry under the circumstances: (1) it is well grounded in fact and; (2) it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law;, and that (3) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. If a pleading, motion, or legal memorandum is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or legal memorandum is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or legal memorandum, including a reasonable attorney fee.



GR 9 Cover Sheet


Suggested Amendment to Civil Rule (CR) 15

concerning Amended and Supplemental Pleadings

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: The suggested amendment to CR 15(a) clarifies the procedure for service and filing of amended pleadings. Currently, the rule does not provide for filing of an amended pleading once a motion to amend is granted.

The amendment requires that a motion to amend must attach the proposed amended pleading. If the motion to amend is granted, the moving party must file the amended pleading and serve it on all parties pursuant to rule 5. The suggested amendment codifies a procedure recently mandated by judicial decision. See Will v. Frontier Contractors, Inc., 121 Wn.App. 119, 89 P.3d 242 (2004).

The suggested amendment also makes the rule gender neutral.



GR 9 Cover Sheet


Suggested Amendment to Civil Rule (CR) 27

concerning Perpetuation of Testimony

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: The suggested amendment adds the following phrase to the end of the last sentence of CR 27 (a)(4): "...in accordance with the provisions of rule 32(a)." This revision clarifies that use of a perpetuation deposition offered in a subsequent action is governed by CR 32(a) (Use of Depositions in Court Proceedings). The suggested amendment conforms CR 27 (a)(4) to Fed. R. Civ. P. 27 (a)(4).



GR 9 Cover Sheet


Suggested Amendment to Civil Rule (CR) 28

concerning Persons Before Whom Depositions May Be Taken

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: The suggested amendment adds the following sentence to CR 28(a): "The term officer as used in rules 30, 31 and 32 includes a person appointed by the court or designated by the parties under rule 29." This suggested amendment conforms CR 28(a) to Fed. R. Civ. P. 28(a).



GR 9 Cover Sheet


Suggested Amendment to Civil Rule (CR) 30

concerning Depositions Upon Oral Examination

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: The suggested amendment to the last sentence in CR 30 (b)(5) clarifies that the time limits on CR 34 requests for production (ordinarily 30 days) also apply to requests for production served with notices of deposition. This will preclude a party from attempting to circumvent the notice requirements of CR 34 by serving another party with a CR 30 (b)(5) notice of deposition accompanied by a CR 34 request for production (or a subpoena duces tecum) without providing the full notice period set forth in CR 34.



GR 9 Cover Sheet


Suggested Amendment to Civil Rule (CR) 50

concerning Motions for Judgment as a Matter of Law and Motions for New Trial

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: The suggested amendments to CR 50 seek to make Washington's practice with respect to motions for judgment as a matter of law more comparable to federal practice under Fed. R. Civ. P. 50. This is accomplished in a number of ways.

First, it is suggested that the caption of the rule be changed to be the same as Fed. R. Civ. P. 50. In addition, the caption of subsection (b) will be changed to conform to Fed. R. Civ. P. 50(b).

Second, the last sentence of existing Fed. R. Civ. P. 50 (a)(1) is deleted and replaced with the language from Fed. R. Civ. P. 50 (a)(2). This change makes CR 50(a) substantively the same as Fed. R. Civ. P. 50(a) with respect to motions for judgment as a matter of law before submission of a case to the jury.

Third, the suggested amendments to CR 50(b) replace the existing section with the language of Fed. R. Civ. P. 50(b) regarding motions for judgment as a matter of law after trial. This suggested amendment changes Washington practice and requires that a motion for judgment as a matter of law be made before submission of the case to the jury as a condition to renewing the motion post-verdict. The Committee concluded that requiring a motion for judgment as a matter of law before the case is submitted to the jury enhances the administration of justice because the parties and/or the court can correct possible errors before verdict. Absent such a motion before submission of the case to the jury, a party may not bring a motion for judgment as a matter of law thereafter. In addition, it is beneficial in this situation to have Washington and federal practice be the same.

Fourth, the suggested amendments add a new section (d), which is identical to Fed. R. Civ. P. 50(d). This section addresses the rights of party who prevailed on a motion for judgment as a matter of law with respect to preserving issues on appeal.


CIVIL RULE 50

MOTION FOR JUDGMENT AS A MATTER OF LAW IN ACTIONS TRIED BY JURY JUDGMENT AS A MATTER OF LAW IN JURY TRIALS; ALTERNATIVE MOTION FOR NEW TRIAL; CONDITIONAL RULINGS


of judgment as a matter of law. If no verdict was returned, the court may, in disposing of the motion, direct the entry of judgment as a matter of law or may order a new trial. If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment -- and may alternatively request a new trial or join a motion for a new trial under rule 59. In ruling on a renewed motion, the court may:

(1) if a verdict was returned:

(A) allow the judgment to stand,

(B) order a new trial, or

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

(2) if no verdict was returned;

(A) order a new trial, or

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

(c) Unchanged.

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


CIVIL RULE 52

DECISIONS, FINDINGS AND CONCLUSIONS


(a) Unchanged.

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

(c) - (e) Unchanged.

The suggested amendments to CR 59(j) allow the court to consider more than one motion for reconsideration, motion for new trial, or motion for judgment as a matter of law in some circumstances.

Finally, the other suggested amendments to CR 59 delete references to superseded provisions relating to judgments notwithstanding the verdict, substitute gender neutral terminology, and improve the grammar of the rule.


CIVIL RULE 59

NEW TRIAL, RECONSIDERATION, AND AMENDMENT OF JUDGMENTS


application; or

(9) That substantial justice has not been done.

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

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

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

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

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

judgment, no further motion may be made, without leave of the court first obtained for good cause shown: (1) for a new trial, (2) nor pursuant to sections (g), (h), and (i) of this rule, nor or (3) under rule 52(b), without leave of court first obtained for good cause shown.


CIVIL RULE 62

STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT


(a) Automatic Stays. Except as to a judgment of a district court filed with the superior court pursuant to RCW 4.56.200, no execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of 5 10 days after its entry. Upon the filing of a notice of appeal, enforcement of judgment is stayed until the expiration of 14 days after entry of judgment. Unless otherwise ordered by the trial court or appellate court, an interlocutory or final judgment in an action for an injunction or in a receivership action, shall not be stayed during the period after its entry and until appellate review is accepted or during the pendency of appellate review.

(b) - (h) Unchanged.


COURT OF LIMITED JURISDICTION CIVIL RULE 1

SCOPE OF RULES


These rules govern the procedure in all trial courts of limited jurisdiction in all suits of a civil nature, with the exceptions stated in rule 81. They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.


COURT OF LIMITED JURISDICTION CIVIL RULE 5

SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS


(a) Unchanged.

(b) Service - How Made.

(1) - (6) Unchanged.

(7) Service by Other Means. Service under this rule may be made by delivering a copy by any other means, including facsimile or electronic means, consented to in writing by the person served. Service by facsimile or electronic means is complete on transmission; service by other consented means is complete when the person making service delivers the copy to the agency designated to make delivery. Service under this subsection is not effective if the party making service learns that the attempted service did not reach the person to be served.

(c) (g) Unchanged.

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

(i) Unchanged.


COURT OF LIMITED JURISDICTION CIVIL RULE 11

SIGNING AND DRAFTING OF PLEADINGS, MOTIONS, AND LEGAL MEMORANDA; SANCTIONS


(a) Every pleading, motion, and legal memorandum of a party represented by an attorney shall be dated and signed by at least one attorney of record in the attorney's individual name, whose address and Washington State Bar Association membership number shall be stated. A party who is not represented by an attorney shall sign and date the party's pleading, motion, or legal memorandum and state the party's address. Pleadings need not, but may be, verified or accompanied by affidavit. The signature of a party or of an attorney constitutes a certificate by the party or attorney that the party or attorney has read the pleading, motion, or legal memorandum;, and that to the best of the party's or attorney's knowledge, information, and belief, formed after an inquiry reasonable inquiry under the circumstances: (1) it is well grounded in fact and; (2) it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law;, and that (3) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. If a pleading, motion, or legal memorandum is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or legal memorandum is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or legal memorandum, including a reasonable attorney fee.



GR 9 Cover Sheet


Suggested Amendment to Civil Rule for Courts of Limited Jurisdiction (CRLJ) 15

concerning Amended and Supplemental Pleadings

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: Please see the statement of purpose for the suggested amendment to CR 15.



GR 9 Cover Sheet


Suggested Amendment to Civil Rule for Courts of Limited Jurisdiction (CRLJ) 50

concerning Motions for Judgment as a Matter of Law and Motions for New Trial

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: Please see the statement of purpose for the suggested amendment to CR 50. Note, however, that in new section CRLJ 50(d), the term "superior court" is used in lieu of "appellate court." This is because, as noted in the last sentence of CRLJ 50(c), the superior court hears appeals in cases tried under CRLJ.


COURT OF LIMITED JURISDICTION CIVIL RULE 50

MOTION FOR JUDGMENT AS A MATTER OF LAW IN ACTIONS TRIED BY JURY JUDGMENT AS A MATTER OF LAW IN JURY TRIALS; ALTERNATIVE MOTION FOR NEW TRIAL; CONDITIONAL RULINGS


is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment -- and may alternatively request a new trial or join a motion for a new trial under rule 59. In ruling on a renewed motion, the court may:

(1) if a verdict was returned:

(A) allow the judgment to stand,

(B) order a new trial, or

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

(2) if no verdict was returned;

(A) order a new trial, or

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

(c) Unchanged

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


COURT OF LIMITED JURISDICTION CIVIL RULE 50

MOTION FOR JUDGMENT AS A MATTER OF LAW IN ACTIONS TRIED BY JURY JUDGMENT AS A MATTER OF LAW IN JURY TRIALS; ALTERNATIVE MOTION FOR NEW TRIAL; CONDITIONAL RULINGS


is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment -- and may alternatively request a new trial or join a motion for a new trial under rule 59. In ruling on a renewed motion, the court may:

(1) if a verdict was returned:

(A) allow the judgment to stand,

(B) order a new trial, or

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

(2) if no verdict was returned;

(A) order a new trial, or

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

(c) Unchanged

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


COURT OF LIMITED JURISDICTION CIVIL RULE 59

NEW TRIAL, RECONSIDERATION, AND AMENDMENT OF JUDGMENTS


(a) Grounds for New Trial or Reconsideration. On the motion of the party aggrieved, The a verdict or other decision may be vacated and a new trial granted to all or any of the parties, and on all or part of the issues, or on some of the issues when such issues are clearly and fairly separable and distinct, on the motion of the party aggrieved or any other decision or order may be vacated and reconsideration granted. Such motion may be granted for any one of the following causes materially affecting the substantial rights of such parties:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



GR 9 Cover Sheet


Suggested Amendment to Superior Court Criminal Rule (CrR) 4.7

concerning Custody of Discovery Materials

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: The suggested amendment to section (h)(3) would permit a prosecuting attorney and a lawyer for a criminal defendant to agree upon, or the court to order, an exception to the current requirement that discovery materials remain in the "exclusive custody" of the defense lawyer. The amended rules would expressly permit a defense lawyer to provide a copy of discovery materials to the defendant, but only after making appropriate redactions of sensitive information as approved by the prosecuting attorney or the court.

A prosecuting attorney may determine in some instances that there is no harm in letting a defendant have copies of discovery materials, while in other circumstances a prosecuting attorney may be willing to agree to only very limited dissemination, or none at all. This amendment would thus allow flexibility, depending on the nature of the case, that the current rule does not permit.

The suggested amendment is intended to help relieve a burden on defense counsel, while recognizing the need to protect victims and witnesses from possible harassment or embarrassment. Under the existing rule, as usually interpreted, a defense lawyer may not provide copies of discovery documents to his or her client for review. Rather, the lawyer must remain with the client in a conference room (or in a custodial facility with an incarcerated client). Yet there appears to be no restriction on the client reading the material, taking notes, or even making a verbatim copy of the information contained in the documents.

Proponents have argued that changing the rule would enhance the preparation of an effective defense. Not only could the lawyer's time be used more effectively, but the client would have the opportunity to review and reflect upon the documents. Increasing familiarity with the information in the documents may result in new insights or improved recollections. Defense lawyers also report that trial courts routinely grant motions that allow redacted copies to be given to clients. Allowing the parties to agree to the same thing would, it is hoped, eliminate motions to the court in a number of cases.

An increased opportunity to review all the evidence may result in additional guilty pleas, reducing the trial burden on the courts. Defendants who feel that evidence is not being hidden from them, or who see the full panoply of evidence against them and have it sink in, may be less likely to insist on a trial. When trials do occur, they may well be more expeditious, with all parties fully prepared from a pretrial review of documents.

Moreover, a pro se defendant is entitled to the actual documents under the current discovery rules. Some defense counsel have expressed concern that certain defendants may currently be motivated to become "co-counsel" in their own cases in order to gain access to discovery materials, an approach not favored by the courts. Changing the current rule would hopefully discourage this practice, by


CrR 4.7 DISCOVERY

(a) (g) Unchanged.

(h) Regulation of Discovery.

(1) - (2) Unchanged.

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

(4) - (7) Unchanged.


CrRLJ 4.7 DISCOVERY

(a) (f) Unchanged.

(g) Regulation of Discovery.

(1) - (2) Unchanged.

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

(4) - (7) Unchanged.



GR 9 Cover Sheet



Suggested Amendment to Civil Rule (CR) 1

concerning Scope of Rules



Submitted by the Board of Governors of the Washington State Bar Association


Purpose: The suggested amendment adds the words "and administered" to the last sentence of the rule, so that CR 1 will conform to Federal Rule of Civil Procedure (Fed. R. Civ. P.) 1. This language was added to the federal rule in 1993. The comment to the federal amendment explains the rationale as follows:

The purpose of this revision, adding the words "and administered" to the second sentence, is to recognize the affirmative duty of the court to exercise the authority conferred by these rules to ensure that civil litigation is resolved not only fairly, but also without undue cost or delay. As officers of the court, attorneys share this responsibility with the judge to whom the case is assigned.


CIVIL RULE 1

SCOPE OF RULES


These rules govern the procedure in the superior court in all suits of a civil nature whether cognizable as cases at law or in equity with the exceptions stated in rule 81. They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.



GR 9 Cover Sheet


Suggested Amendment to Civil Rule (CR) 5

concerning Service and Filing of Pleadings and Other Papers

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: The suggested amendment to CR 5 (b)(7) provides for electronic service where the parties consent in writing. This change incorporates an analogous amendment to Fed. R. Civ. P. 5 (b)(2)(D) and 5 (b)(3) made in 2001. As a practical matter, many lawyers already communicate and transmit pleadings and papers electronically. The suggested amendment authorizes counsel to agree to such electronic service. Consent to such service must be in writing. The comments to the corresponding changes to the federal rule indicate that parties are encouraged to specify the scope and duration of the consent. The specification also should include at least the persons to whom service should be made, the appropriate address or location for such service, and the format for attachments.

In addition, the suggested amendment addresses the issue of time of service. Ordinarily, service is complete upon transmission pursuant to the terms of the written consent. Thus, the risk of non-receipt falls on the person being served. However, when the person serving pleadings or papers learns that attempted service failed, service is not effected. Facsimile and email transmissions customarily show if transmission has failed.

Adoption of the suggested amendment to CR 5 (b)(7) eliminates the need for archaic subsection (h), which is rescinded. To the extent that service by telegraph remains viable, it can occur under the suggested amendment.

The suggested amended rule does not address electronic filing, which is governed by GR 17.


CIVIL RULE 5

SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS


(a) Unchanged.

(b) Service - How Made.

(1) - (6) Unchanged.

(7) Service by Other Means. Service under this rule may be made by delivering a copy by any other means, including facsimile or electronic means, consented to in writing by the person served. Service by facsimile or electronic means is complete on transmission; service by other consented means is complete when the person making service delivers the copy to the agency designated to make delivery. Service under this subsection is not effective if the party making service learns that the attempted service did not reach the person to be served.

(c) - (g) Unchanged.

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

(i) - (j) Unchanged.


CIVIL RULE 5

SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS


(a) Unchanged.

(b) Service - How Made.

(1) - (6) Unchanged.

(7) Service by Other Means. Service under this rule may be made by delivering a copy by any other means, including facsimile or electronic means, consented to in writing by the person served. Service by facsimile or electronic means is complete on transmission; service by other consented means is complete when the person making service delivers the copy to the agency designated to make delivery. Service under this subsection is not effective if the party making service learns that the attempted service did not reach the person to be served.

(c) - (g) Unchanged.

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

(i) - (j) Unchanged.



GR 9 Cover Sheet


Suggested Amendment to Civil Rule (CR) 11

concerning Signing of Pleadings; Sanctions

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: The suggested amendments to CR 11 (a) and (b) are intended to make the criteria for the certification of counsel or a pro se litigant more closely parallel those in Fed. R. Civ. P. 11. Thus, the phrase "reasonable inquiry" is changed to "inquiry that is reasonable under the circumstances." According to the comments to the 1993 amendments to Fed. R. Civ. P. 11, this change clarifies that the standard for evaluating the certification is objective and not subjective.

The addition of the phrase "or the establishment of new law" conforms the state rule to the amendment of Fed. R. Civ. P. 11 in 1993. Similarly, the addition of a new fourth criterion ("the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief") also conforms the state rule to the corresponding criterion in Fed. R. Civ. P. 11. The fourth criterion is intended to clarify that a defendant, who may have had less opportunity to investigate a claim than a plaintiff, may deny allegations based upon lack of information or belief without violation of rule 11.


CIVIL RULE 11

SIGNING AND DRAFTING OF PLEADINGS, MOTIONS, AND LEGAL MEMORANDA; SANCTIONS


(a) Every pleading, motion, and legal memorandum of a party represented by an attorney shall be dated and signed by at least one attorney of record in the attorney's individual name, whose address and Washington State Bar Association membership number shall be stated. A party who is not represented by an attorney shall sign and date the party's pleading, motion, or legal memorandum and state the party's address. Petitions for dissolution of marriage, separation, declarations concerning the validity of a marriage, custody, and modification of decrees issued as a result of any of the foregoing petitions shall be verified. Other pleadings need not, but may be, verified or accompanied by affidavit. The signature of a party or of an attorney constitutes a certificate by the party or attorney that the party or attorney has read the pleading, motion, or legal memorandum;, and that to the best of the party's or attorney's knowledge, information, and belief, formed after an inquiry reasonable inquiry under the circumstances: (1) it is well grounded in fact and; (2) it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law;, and that (3) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. If a pleading, motion, or legal memorandum is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or legal memorandum is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or legal memorandum, including a reasonable attorney fee.

(b) In helping to draft a pleading, motion or document filed by the otherwise self-represented person, the attorney certifies that the attorney has read the pleading, motion, or

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



GR 9 Cover Sheet


Suggested Amendment to Civil Rule (CR) 15

concerning Amended and Supplemental Pleadings

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: The suggested amendment to CR 15(a) clarifies the procedure for service and filing of amended pleadings. Currently, the rule does not provide for filing of an amended pleading once a motion to amend is granted.

The amendment requires that a motion to amend must attach the proposed amended pleading. If the motion to amend is granted, the moving party must file the amended pleading and serve it on all parties pursuant to rule 5. The suggested amendment codifies a procedure recently mandated by judicial decision. See Will v. Frontier Contractors, Inc., 121 Wn.App. 119, 89 P.3d 242 (2004).

The suggested amendment also makes the rule gender neutral.


CIVIL RULE 15

AMENDED AND SUPPLEMENTAL PLEADINGS


(a) Amendments. A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served, or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise, a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. If a party moves to amend a pleading, a copy of the proposed amended pleading, denominated "proposed" and unsigned, shall be attached to the motion. If a motion to amend is granted, the moving party shall thereafter file the amended pleading and, pursuant to rule 5, serve a copy thereof on all other parties. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

(b) - (e) Unchanged.



GR 9 Cover Sheet


Suggested Amendment to Civil Rule (CR) 27

concerning Perpetuation of Testimony

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: The suggested amendment adds the following phrase to the end of the last sentence of CR 27 (a)(4): "...in accordance with the provisions of rule 32(a)." This revision clarifies that use of a perpetuation deposition offered in a subsequent action is governed by CR 32(a) (Use of Depositions in Court Proceedings). The suggested amendment conforms CR 27 (a)(4) to Fed. R. Civ. P. 27 (a)(4).


CIVIL RULE 27

PERPETUATION OF TESTIMONY


(a) Perpetuation Before Action.

(1) - (3) Unchanged.

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

(b) - (c) Unchanged.



GR 9 Cover Sheet


Suggested Amendment to Civil Rule (CR) 28

concerning Persons Before Whom Depositions May Be Taken

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: The suggested amendment adds the following sentence to CR 28(a): "The term officer as used in rules 30, 31 and 32 includes a person appointed by the court or designated by the parties under rule 29." This suggested amendment conforms CR 28(a) to Fed. R. Civ. P. 28(a).


CIVIL RULE 28

PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN


(-) Within the State. Unchanged.

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

(b) - (d) Unchanged.



GR 9 Cover Sheet


Suggested Amendment to Civil Rule (CR) 30

concerning Depositions Upon Oral Examination

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: The suggested amendment to the last sentence in CR 30 (b)(5) clarifies that the time limits on CR 34 requests for production (ordinarily 30 days) also apply to requests for production served with notices of deposition. This will preclude a party from attempting to circumvent the notice requirements of CR 34 by serving another party with a CR 30 (b)(5) notice of deposition accompanied by a CR 34 request for production (or a subpoena duces tecum) without providing the full notice period set forth in CR 34.


CIVIL RULE 30

DEPOSITIONS UPON ORAL EXAMINATION


(a) Unchanged.

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

(1) - (4) Unchanged.

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

(c) - (h) Unchanged.



GR 9 Cover Sheet


Suggested Amendment to Civil Rule (CR) 50

concerning Motions for Judgment as a Matter of Law and Motions for New Trial

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: The suggested amendments to CR 50 seek to make Washington's practice with respect to motions for judgment as a matter of law more comparable to federal practice under Fed. R. Civ. P. 50. This is accomplished in a number of ways.

First, it is suggested that the caption of the rule be changed to be the same as Fed. R. Civ. P. 50. In addition, the caption of subsection (b) will be changed to conform to Fed. R. Civ. P. 50(b).

Second, the last sentence of existing Fed. R. Civ. P. 50 (a)(1) is deleted and replaced with the language from Fed. R. Civ. P. 50 (a)(2). This change makes CR 50(a) substantively the same as Fed. R. Civ. P. 50(a) with respect to motions for judgment as a matter of law before submission of a case to the jury.

Third, the suggested amendments to CR 50(b) replace the existing section with the language of Fed. R. Civ. P. 50(b) regarding motions for judgment as a matter of law after trial. This suggested amendment changes Washington practice and requires that a motion for judgment as a matter of law be made before submission of the case to the jury as a condition to renewing the motion post-verdict. The Committee concluded that requiring a motion for judgment as a matter of law before the case is submitted to the jury enhances the administration of justice because the parties and/or the court can correct possible errors before verdict. Absent such a motion before submission of the case to the jury, a party may not bring a motion for judgment as a matter of law thereafter. In addition, it is beneficial in this situation to have Washington and federal practice be the same.

Fourth, the suggested amendments add a new section (d), which is identical to Fed. R. Civ. P. 50(d). This section addresses the rights of party who prevailed on a motion for judgment as a matter of law with respect to preserving issues on appeal.


CIVIL RULE 50

MOTION FOR JUDGMENT AS A MATTER OF LAW IN ACTIONS TRIED BY JURY JUDGMENT AS A MATTER OF LAW IN JURY TRIALS; ALTERNATIVE MOTION FOR NEW TRIAL; CONDITIONAL RULINGS


(a) Judgment as a Matter of Law.

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

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

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

(1) if a verdict was returned:

(A) allow the judgment to stand,

(B) order a new trial, or

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

(2) if no verdict was returned;

(A) order a new trial, or

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

(c) Unchanged

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



GR 9 Cover Sheet


Suggested Amendment to Civil Rule (CR) 52

concerning Findings by the Court

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: The suggested amendment conforms Washington's time requirement for a motion to amend or make additional findings to the time requirement of Fed. R. Civ. P. 52. Under the current provision, CR 52(b) requires that such a motion be "made" not later than 5 days after entry of the judgment. To conform this rule to other provisions relating to post-trial motions (such as CR 50 and CR 59) and to Fed. R. Civ. P. 52(b), the suggested amendment requires that a motion to amend or make additional findings must be "filed no later than 10 days after entry of judgment...."


CIVIL RULE 52

DECISIONS, FINDINGS AND CONCLUSIONS


(a) Unchanged.

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

(c) - (e) Unchanged.



GR 9 Cover Sheet


Suggested Amendment to Civil Rule (CR) 59

concerning New Trial, Reconsideration, and Amendment of Judgments

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: The suggested amendments to CR 59 are intended to more clearly distinguish motions for new trial and motions for reconsideration and to conform Washington practice regarding requirements for bringing the motion with federal practice under Fed. R. Civ. P. 59.

The suggested amendments to CR 59(a) are intended to distinguish motions for a new trial from motions for reconsideration. The title to the existing rule refers to "reconsideration," but the text of existing CR 59(a) authorizes relief only as a new trial. The proposed amendments separate motions for new trial, which result in orders granting a new trial, from motions for reconsideration, which result in the vacation of previous orders.

The most important substantive changes in the suggested amendments to CR 59 relate to the manner in which a party initiates motions for new trial (and, by reference, post-trial motions for judgment as a matter of law). Currently, Washington law under CR 59 differs from federal practice; in Washington, CR 59 provides that a motion for new trial must be served and filed not later than 10 days after entry of judgment. Fed. R. Civ. P. 59 provides that such motions must be filed no later than 10 days after entry of judgment. The federal rule was changed in 1995 to require only filing in order to eliminate inconsistencies with other rules related to post-judgment time periods and to establish an easily ascertainable deadline.

The present requirement for service and filing of a motion for new trial under CR 59(b) can create significant problems and inconsistencies. CR 6(b) provides that the 10 day deadline in CR 59(b) cannot be extended by the court. Thus, failure to properly serve within 10 days of judgment will preclude consideration of the motion, even though a companion motion under CR 50 may be considered. This issue was addressed in Kaech v. Lewis Country PUD No. 1, 106 Wn. App. 260 (2001), review denied, 145 Wn.2d 1020 (2002); Division II of the Court of Appeals held that failure to serve a CR 59 motion within 10 days was fatal to the motion for new trial although a motion under CR 50 was timely.

The Committee concluded that the requirement for both service and filing creates an unnecessary risk for practitioners. Moreover, the current Washington practice is an anachronistic carryover from the original adoption of the Civil Rules. In light of past amendments to the federal rule and the problems raised by Kaech, the Committee recommends deletion of the service requirement in CR 59. This requires amendments to sections (b), (c), (e), and (h).

In addition to the suggested amendments relating to filing of the motion, the proposal also adds two new sentences at the end of CR 59(d) requiring notice and an opportunity to be heard if a court determines on its own initiative that a motion for new trial is necessary. The suggested language is identical to the last two sentences of Fed. R. Civ. P. 59(d).

The suggested amendments to CR 59(j) allow the court to consider more than one motion for reconsideration, motion for new trial, or motion for judgment as a matter of law in some circumstances.

Finally, the other suggested amendments to CR 59 delete references to superseded provisions relating to judgments notwithstanding the verdict, substitute gender neutral terminology, and improve the grammar of the rule.


CIVIL RULE 59

NEW TRIAL, RECONSIDERATION, AND AMENDMENT OF JUDGMENTS


(a) Grounds for New Trial or Reconsideration. On the motion of the party aggrieved, The a verdict or other decision may be vacated and a new trial granted to all or any of the parties, and on all or part of the issues, or on some of the issues when such issues are clearly and fairly separable and distinct, on the motion of the party aggrieved or any other decision or order may be vacated and reconsideration granted. Such motion may be granted for any one of the following causes materially affecting the substantial rights of such parties:

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

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

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

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

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

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

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

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

(9) That substantial justice has not been done.

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

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

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

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

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

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

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

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

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

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

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

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

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



GR 9 Cover Sheet


Suggested Amendment to Civil Rule (CR) 62

concerning Stay of Proceedings to Enforce a Judgment

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: The suggested amendment to CR 62(a) increases the time of an automatic stay from execution on a judgment from 5 days to 10 days. This suggested amendment conforms the time of the automatic stay under state law to that in federal court under Fed. R. Civ. P. 62(a). The suggested amendment also makes the automatic stay consistent with the 10-day time requirements for post-trial motions under CR 50 and CR 59, as well as the suggested amendment to CR 52(a).


CIVIL RULE 62

STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT


(a) Automatic Stays. Except as to a judgment of a district court filed with the superior court pursuant to RCW 4.56.200, no execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of 5 10 days after its entry. Upon the filing of a notice of appeal, enforcement of judgment is stayed until the expiration of 14 days after entry of judgment. Unless otherwise ordered by the trial court or appellate court, an interlocutory or final judgment in an action for an injunction or in a receivership action, shall not be stayed during the period after its entry and until appellate review is accepted or during the pendency of appellate review.

(b) - (h) Unchanged.



GR 9 Cover Sheet


Suggested Amendment to Civil Rule for Courts of Limited Jurisdiction (CRLJ) 1

concerning Scope of Rules

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: Please see the statement of purpose for the suggested amendment to CR 1.


COURT OF LIMITED JURISDICTION CIVIL RULE 1

SCOPE OF RULES


These rules govern the procedure in all trial courts of limited jurisdiction in all suits of a civil nature, with the exceptions stated in rule 81. They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.



GR 9 Cover Sheet


Suggested Amendment to Civil Rule for Courts of Limited Jurisdiction (CRLJ) 5

concerning Service and Filing of Pleadings and Other Papers

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: Please see the statement of purpose for the suggested amendment to CR 5.


COURT OF LIMITED JURISDICTION CIVIL RULE 5

SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS


(a) Unchanged.

(b) Service - How Made.

(1) - (6) Unchanged.

(7) Service by Other Means. Service under this rule may be made by delivering a copy by any other means, including facsimile or electronic means, consented to in writing by the person served. Service by facsimile or electronic means is complete on transmission; service by other consented means is complete when the person making service delivers the copy to the agency designated to make delivery. Service under this subsection is not effective if the party making service learns that the attempted service did not reach the person to be served.

(c) - (g) Unchanged.

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

(i) Unchanged.



GR 9 Cover Sheet


Suggested Amendment to Civil Rule for Courts of Limited Jurisdiction (CRLJ) 11

concerning Signing of Pleadings; Sanctions

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: Please see the statement of purpose for the suggested amendment to CR 11.


COURT OF LIMITED JURISDICTION CIVIL RULE 11

SIGNING AND DRAFTING OF PLEADINGS, MOTIONS, AND LEGAL

MEMORANDA; SANCTIONS


(a) Every pleading, motion, and legal memorandum of a party represented by an attorney shall be dated and signed by at least one attorney of record in the attorney's individual name, whose address and Washington State Bar Association membership number shall be stated. A party who is not represented by an attorney shall sign and date the party's pleading, motion, or legal memorandum and state the party's address. Pleadings need not, but may be, verified or accompanied by affidavit. The signature of a party or of an attorney constitutes a certificate by the party or attorney that the party or attorney has read the pleading, motion, or legal memorandum;, and that to the best of the party's or attorney's knowledge, information, and belief, formed after an inquiry reasonable inquiry under the circumstances: (1) it is well grounded in fact and; (2) it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law;, and that (3) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. If a pleading, motion, or legal memorandum is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or legal memorandum is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or legal memorandum, including a reasonable attorney fee.

(b) In helping to draft a pleading, motion or document filed by the otherwise self-represented person, the attorney certifies that the attorney has read the pleading, motion, or

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



GR 9 Cover Sheet


Suggested Amendment to Civil Rule for Courts of Limited Jurisdiction (CRLJ) 15

concerning Amended and Supplemental Pleadings

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: Please see the statement of purpose for the suggested amendment to CR 15.


COURT OF LIMITED JURISDICTION CIVIL RULE 15

AMENDED AND SUPPLEMENTAL PLEADINGS


(a) Amendments. A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served, or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise, a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. If a party moves to amend a pleading, a copy of the proposed amended pleading, denominated "proposed" and unsigned, shall be attached to the motion. If a motion to amend is granted, the moving party shall thereafter file the amended pleading and, pursuant to rule 5, serve a copy thereof on all other parties. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service or notice of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

(b) - (e) Unchanged.



GR 9 Cover Sheet


Suggested Amendment to Civil Rule for Courts of Limited Jurisdiction (CRLJ) 50

concerning Motions for Judgment as a Matter of Law and Motions for New Trial

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: Please see the statement of purpose for the suggested amendment to CR 50. Note, however, that in new section CRLJ 50(d), the term "superior court" is used in lieu of "appellate court." This is because, as noted in the last sentence of CRLJ 50(c), the superior court hears appeals in cases tried under CRLJ.


COURT OF LIMITED JURISDICTION CIVIL RULE 50

MOTION FOR JUDGMENT AS A MATTER OF LAW IN ACTIONS TRIED BY JURY JUDGMENT AS A MATTER OF LAW IN JURY TRIALS; ALTERNATIVE MOTION FOR NEW TRIAL; CONDITIONAL RULINGS


(a) Judgment as a Matter of Law.

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

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

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

(1) if a verdict was returned:

(A) allow the judgment to stand,

(B) order a new trial, or

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

(2) if no verdict was returned;

(A) order a new trial, or

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

(c) Unchanged

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

(a) Judgment as a Matter of Law.

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

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

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

(1) if a verdict was returned:

(A) allow the judgment to stand,

(B) order a new trial, or

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

(2) if no verdict was returned;

(A) order a new trial, or

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

(c) Unchanged

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



GR 9 Cover Sheet


Suggested Amendment to Civil Rule for Courts of Limited Jurisdiction (CRLJ) 59

concerning New Trial, Reconsideration, and Amendment of Judgments

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: Please see the statement of purpose for the suggested amendment to CR 59. Note, however, that it is suggested that the following additional sentence be added to CRLJ 59(b): "The motion shall be noted at the time it is filed, to be heard or otherwise considered within 30 days after the entry of the judgment, order, or other decision unless the court directs otherwise." This sentence (as modified by a current suggested amendment to CR 59) was added to CR 59(b) in 1989, but no conforming amendment to CRLJ 59(b) was proposed at that time. In addition, the reference to CR 52(b) in section (j), which was a scrivener's error at the time of the adoption of CRLJ 59, is deleted.


COURT OF LIMITED JURISDICTION CIVIL RULE 59

NEW TRIAL, RECONSIDERATION, AND AMENDMENT OF JUDGMENTS


(a) Grounds for New Trial or Reconsideration. On the motion of the party aggrieved, The a verdict or other decision may be vacated and a new trial granted to all or any of the parties, and on all or part of the issues, or on some of the issues when such issues are clearly and fairly separable and distinct, on the motion of the party aggrieved or any other decision or order may be vacated and reconsideration granted. Such motion may be granted for any one of the following causes materially affecting the substantial rights of such parties:

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

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

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

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

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

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

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

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

(9) That substantial justice has not been done.

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

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

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

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

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

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

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

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

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

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

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

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

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



GR 9 Cover Sheet


Suggested Amendment to Superior Court Criminal Rule (CrR) 4.7

concerning Custody of Discovery Materials

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: The suggested amendment to section (h)(3) would permit a prosecuting attorney and a lawyer for a criminal defendant to agree upon, or the court to order, an exception to the current requirement that discovery materials remain in the "exclusive custody" of the defense lawyer. The amended rules would expressly permit a defense lawyer to provide a copy of discovery materials to the defendant, but only after making appropriate redactions of sensitive information as approved by the prosecuting attorney or the court.

A prosecuting attorney may determine in some instances that there is no harm in letting a defendant have copies of discovery materials, while in other circumstances a prosecuting attorney may be willing to agree to only very limited dissemination, or none at all. This amendment would thus allow flexibility, depending on the nature of the case, that the current rule does not permit.

The suggested amendment is intended to help relieve a burden on defense counsel, while recognizing the need to protect victims and witnesses from possible harassment or embarrassment. Under the existing rule, as usually interpreted, a defense lawyer may not provide copies of discovery documents to his or her client for review. Rather, the lawyer must remain with the client in a conference room (or in a custodial facility with an incarcerated client). Yet there appears to be no restriction on the client reading the material, taking notes, or even making a verbatim copy of the information contained in the documents.

Proponents have argued that changing the rule would enhance the preparation of an effective defense. Not only could the lawyer's time be used more effectively, but the client would have the opportunity to review and reflect upon the documents. Increasing familiarity with the information in the documents may result in new insights or improved recollections. Defense lawyers also report that trial courts routinely grant motions that allow redacted copies to be given to clients. Allowing the parties to agree to the same thing would, it is hoped, eliminate motions to the court in a number of cases.

An increased opportunity to review all the evidence may result in additional guilty pleas, reducing the trial burden on the courts. Defendants who feel that evidence is not being hidden from them, or who see the full panoply of evidence against them and have it sink in, may be less likely to insist on a trial. When trials do occur, they may well be more expeditious, with all parties fully prepared from a pretrial review of documents.

Moreover, a pro se defendant is entitled to the actual documents under the current discovery rules. Some defense counsel have expressed concern that certain defendants may currently be motivated to become "co-counsel" in their own cases in order to gain access to discovery materials, an approach not favored by the courts. Changing the current rule would hopefully discourage this practice, by increasing trust between clients and their lawyers, and indeed reducing clients' distrust of the legal system in general.

Finally, it should be noted that the sections of the rule providing for protective orders and sanctions would still be available in cases where further restrictions or limitations are deemed necessary.


CrR 4.7 DISCOVERY

(a) - (g) Unchanged.

(h) Regulation of Discovery.

(1) - (2) Unchanged.

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

(4) - (7) Unchanged.



GR 9 Cover Sheet


Suggested Amendment to Criminal Rule for Courts of Limited Jurisdiction (CrRLJ) 4.7

concerning Custody of Discovery Materials

Submitted by the Board of Governors of the Washington State Bar Association



Purpose: Please see the statement of purpose for the suggested amendment to CrR 4.7.


CrRLJ 4.7 DISCOVERY

(a) - (f) Unchanged.

(g) Regulation of Discovery.

(1) - (2) Unchanged.

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

(4) - (7) Unchanged.

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

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

Washington State Code Reviser's Office