WSR 03-23-017

RULES OF COURT

STATE SUPREME COURT


[ November 6, 2003 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO ER 405, ER 407, ER 608, ER 701 AND APR 8(b) )

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ORDER

NO. 25700-A-783


The Washington State Bar Association having recommended the adoption of the proposed amendments to ER 405, ER 407, ER 608, ER 701 and APR 8(b), and the Court having approved the proposed amendments for publication;

Now, therefore, it is hereby

ORDERED:

(a) That pursuant to the provisions of GR 9(f), the proposed amendments as attached hereto are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Courts' websites in January 2004.

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

(c) Comments are to be submitted to te Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2004. 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 6th day of November 2003.

For the Court

Gerry L. Alexander

CHIEF JUSTICE

GR 9 Cover Sheet

Proposal to Amend

Evidence Rule 405

Concerning Proving Character


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




Purpose: The amendment would conform the Washington rule to Federal Rule 405, by permitting opinion testimony concerning character or a trait of character in addition to testimony as to reputation. It was noted that opinions frequently come in under the guise of "reputation," or as one committee member put it, it seems that reputation evidence is "my opinion of others' opinions."

The Advisory Committee's note to the Federal Rule, 56 F.R.D. 183, 222, advocated the use of opinion evidence (based on "personal knowledge and belief") as preferable to the "'secondhand, irresponsible product of multiplied guesses and gossip which we term reputation,'" quoting 7 Wigmore 1986. The note went on to say that it "seems likely that the persistence of reputation evidence is due to its largely being opinion in disguise."

Notwithstanding the arguments made in the comment to the 1979 adoption of this rule in Washington, the committee believed that allowing opinion evidence would result in a more "honest" rule. Conforming to the Federal Rule would also make available a substantially broader body of case law.


ER 405

METHODS OF PROVING CHARACTER



(a) Reputation or Opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific Instances of Conduct. Unchanged.

GR 9 Cover Sheet

Proposal to Amend Evidence Rule 407

Concerning Subsequent Remedial Measures


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




(C) Purpose: The amendment would conform the Washington rule to Federal Rule 407 as amended in 1997. It would make evidence of subsequent measures inadmissible to prove "a defect in a product, a defect in a product's design, or a need for a warning or instruction."

This amendment would codify the holding in Hyjek v. Anthony Industries, 133 Wn.2d 414, 944 P.2d 1036 (1997). In Hyjek, the Supreme Court adopted the reasoning of a majority of federal courts that had considered the issue before the rule amendment, arguing:

While the historical use of relevancy as the basis for excluding evidence of subsequent remedial measures as evidence of negligence is well established, the more widely accepted basis for exclusion appears to be the social policy rationale of encouraging safety precautions. 5 KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE 131, at 471 (3d ed. 1989); see also Codd v. Stevens Pass, Inc., 45 Wn. App. 393, 725 P.2d 1008 (1986). The federal advisory committee note to Rule 407 specifically indicates a distinct preference for this rationale. FED. R. EVID. 407 advisory committee note. The expressed concern is that the introduction of such evidence may provide a disincentive for people to take safety precautions. Rule 407 seeks to advance the public policy of encouraging people to take steps in furtherance of added safety by freeing them from the fear that such steps will be used against them in a future lawsuit. Carter v. City of Seattle, 21 Wash. 585, 59 P. 500 (1899); see also WASH. EVID. R. 407 advisory committee note.

133 Wn.2d at 418-19. The Court also took note of the then-pending amendment to the federal rule. Hyjek, 133 Wn.2d at 421.


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


ER 407

SUBSEQUENT REMEDIAL MEASURES



When, after an injury or harm allegedly caused by an event, measures are taken which, if taken previously, would have made the injury or harm event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, or culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

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.

GR 9 Cover Sheet

Proposal to Amend Evidence Rule 608

Concerning Evidence of Character of Witness


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




Purpose: The amendment would conform section (a) of the Washington rule to Federal Rule 608(a), by allowing opinion as well as reputation evidence. It is proposed for the same reason as the amendment to Rule 405.

The unlettered paragraph of Federal Rule 608, concerning waiver of the privilege against self-incrimination, is not recommended, for reasons stated in the comment to the current Washington rule.


ER 608

EVIDENCE OF CHARACTER AND CONDUCT OF WITNESS



(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to the these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(b) Specific Instances of Conduct. Unchanged.

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

GR 9 Cover Sheet

Proposal to Amend Evidence Rule 701

Concerning Opinion Testimony by Lay Witness


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




Purpose: The amendment would conform Washington's Rule of Evidence 701 to the federal rule, as amended in 2000. It would add a new section (c) providing that opinion testimony by a lay witness must not be "based on scientific, technical, or other specialized knowledge within the scope of rule 702."

According to the Advisory Committee note, the purpose of this amendment was to "eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing. Under the amendment, a witness' testimony must be scrutinized under the rules regulating expert opinion to the extent that the witness is providing testimony based on scientific, technical, or other specialized knowledge within the scope of Rule 702."

The Advisory Committee note goes on to point out that the amendment "does not distinguish between expert and lay witnesses, but rather between expert and lay testimony. Certainly it is possible for the same witness to provide both lay and expert testimony in a single case." By channeling testimony that is actually expert testimony to rule 702, the amendment also lessens the possibility that a party can evade the expert witness disclosure requirements set forth in Civil Rule 26 by simply calling an expert in the guise of a lay person.

The amendment is not intended to affect the typical examples of the kinds of evidence contemplated by the adoption of rule 701, such as the appearance of persons or things, the apparent "health" of another, the speed of a vehicle, or the value of one's own property.


ER 701

OPINION TESTIMONY BY LAY WITNESSES



If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of rule 702.

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

GR 9 Cover Sheet

Suggested Amendment

ADMISSION TO PRACTICE RULES (APR)

Rule 8: SPECIAL ADMISSIONS

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

(REVISED April 2003)




Purpose: Admission to Practice Rule (APR) 8(b) provides for the special admission of lawyers from other jurisdictions to appear before courts and tribunals in the state of Washington for the purpose of a particular action or proceeding, sometimes called pro hac vice admission. Application is made to the court or tribunal where the matter is proceeding, and the out-of-state lawyer must associate with a Washington lawyer who shall be the attorney of record and who, under the current rule, must be present at all proceedings. Lawyers admitted under this rule are subject to the disciplinary authority of this state. Rules for Enforcement of Lawyer Conduct (ELC) 1.2.

Lawyer mobility and multijurisdictional practice are issues gaining increased importance on both the state and national levels. Every United States jurisdiction has some form of pro hac vice admission. Most jurisdictions require association with an admitted attorney who is the attorney of record in the matter. In addition to admission by the court or tribunal before whom the matter is pending, several jurisdictions require registration and payment of an application or admission fee to the jurisdiction's lawyer regulatory agency.

Currently, in Washington there is no way to know who is seeking admission under this special admission rule, the frequency and number of admissions, and how often any individual seeks this form of special admission. The suggested amendments to APR 8(b) will provide the public and the bar with a record and system of oversight of admissions under this rule. Lawyers admitted under this rule will pay the administrative costs of maintaining the record of admissions as well as supporting the lawyer disciplinary system to which they are subject.

The suggested amendments also clarify that an application under this rule shall be in the form of a written motion to the tribunal before which the matter is pending. The rule requires that the lawyer seeking admission under this rule must associate with Washington counsel who shall be the attorney of record. It will change the present requirement that the Washington lawyer must be present at all proceedings, and provide that he or she will be present unless excused by the court or tribunal. The motion shall be made in a form approved by the Board of Governors, which will include certification by the lawyer seeking admission and the associated Washington lawyer that the requirements of APR 8(b) have been complied with.

This suggested rule is modeled on similar rules in Idaho, Oregon, Montana and


SUGGESTED AMENDMENT

ADMISSION TO PRACTICE RULES (APR)

APR 8. SPECIAL ADMISSIONS




(a) In General. [No change].

(b) Exception for Particular Action or Proceeding. A member in good standing of the Bar of any other state or territory of the United States or of the District of Columbia, who is a resident of and maintains a practice in such other state, territory, or District, may appear as a lawyer in the trial of any action or proceeding only (i) with the permission of the court or tribunal in which the action or proceeding is pending, and (ii) in association with an active member of the Washington State Bar Association, who shall be the lawyer of record therein, responsible for the conduct thereof, and present at all proceedings unless excused by the court or tribunal.

(1) An application to appear as such a lawyer shall be made by written motion to the court or tribunal before whom the action or proceeding is pending, in a form approved by the Board of Governors, which shall include certification by the lawyer seeking admission under this rule and the associated Washington lawyer that the requirements of this rule have been complied with. The application motion shall be heard by the court or tribunal after such notice to the Washington State Bar Association as is required in part (2) below, together with the required fees, and to adverse parties as the court or tribunal shall direct. The court or tribunal shall enter an order granting or refusing the application motion, and, if the application motion is refused, the court or tribunal shall state its reasons.

(2) The lawyer making the motion shall submit a copy of the motion to the Washington State Bar Association, accompanied by a fee in each case in an amount set by the Board of Governors with the approval of the Supreme Court. The associated Washington counsel shall be jointly responsible for payment of these fees. The Washington State Bar Association shall maintain a public record of all motions for admission pursuant to this rule.

(2) (3) No member of the Bar Association shall lend his or her name for the purpose of, or in any way assist in, avoiding the effect of this rule.

(c) Exception for Indigent Representation. [No change].

(d) Exception for Educational Purposes. [No change].

(e) Exception for Emeritus Membership. [No change].

(f) Exception for House Counsel. [No change].

(g) Exception for Military Lawyers. [No change].

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.

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.

Legislature Code Reviser 

Register

Washington State Code Reviser's Office