RAP - 4.2, 4.3, 10.4, 10.8, 10.10, 12.4, 13.4, 13.5, 13.7, 16.7, 16.10, 16.16, 16.17, 16.21, 16.22, 17.4, 18.13A, 18.14

• Proposed Changes to RAP - 4.2, 4.3, 10.4, 10.8, 10.10, 12.4, 13.4, 13.5, 13.7, 16.7, 16.10, 16.16, 16.17, 16.21, 16.22, 17.4, 18.13A, 18.14 (in Word Format)
• No comments are available at this time.

GR 9 Cover Sheet

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

Spokesperson: Justice Charlie Wiggins, Washington State Supreme Court

Erin Lennon, Washington State Supreme Court Deputy Clerk

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

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

The workgroup consisted of the following volunteers:

n Justice Charles Wiggins, Washington State Supreme Court

n Chief Judge Brad Maxa, Court of Appeals Division II

n Acting Chief Judge David Mann, Court of Appeals Division I

n Acting Chief Judge Rebecca Pennell, Court of Appeals Division III

n Judge Kevin Korsmo, Court of Appeals, Division III

n Erin Lennon, Washington State Supreme Court Deputy Clerk (workgroup chair)

n Renee Townsley, Court of Appeals Division III Clerk/Administrator

n Ian Cairns (King County Bar Association Appellate Practice Section nominee)

n Claire Carden (Washington State Bar Association Rules Committee nominee)

n Shelby R. Frost Lemmel (Washington Appellate Lawyers Association co-nominee)

n Chris Love (Washington State Association for Justice nominee)

n Gideon Newmark (Office of Public Defense nominee)

n Rachael Rogers (Washington Association of Prosecuting Attorneys nominee)

n Lila J. Silverstein (Washington Association of Criminal Defense Lawyers nominee)

n Valerie A. Villacin (Washington Appellate Lawyers Association co-nominee)

n Melissa O’Loughlin White (Washington Defense Trial Lawyers nominee)

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

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

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

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

RAP 4.2(c) and (d)

RAP 4.3(c) and (d)

RAP 10.4(a) and (b)

RAP 10.7

RAP 10.8

RAP 10.10(b)

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

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

RAP 13.5(c)

RAP 13.7(e)

RAP 16.7 (c)

RAP 16.10(d)

RAP 16.16(e)

RAP 16.17

RAP 16.21(c)

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

RAP 17.4(g)

RAP 18.13A(h)

RAP 18.14(c)

RAP Form 3

RAP Form 4

RAP Form 6

RAP Form 9

RAP Form 17

RAP Form 18

RAP Form 20

RAP Form 23

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

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

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