SUPERIOR COURT CIVIL RULES (CR)
TABLE OF RULES
1. INTRODUCTORY
Rule
1 Scope of Rules
2 One Form of Action
2A Stipulations
2. COMMENCEMENT OF ACTION; SERVICE OF PROCESS,
PLEADINGS, MOTIONS, AND ORDERS
3 Commencement of Action
4 Process
4.1 Process--Domestic Relations Actions
4.2 Process--Limited Representation
5 Service and Filing of Pleadings and Other Papers
6 Time
3. PLEADINGS AND MOTIONS
7 Pleadings Allowed; Form of Motions
8 General Rules of Pleading
9 Pleading Special Matters
10 Form of Pleadings and Other Papers
11 Signing and Drafting of Pleadings, Motions, and Legal Memoranda: Sanctions
12 Defenses and Objections
13 Counterclaim and Cross Claim
14 Third Party Practice
15 Amended and Supplemental Pleadings
16 Pretrial Procedure and Formulating Issues
4. PARTIES
17 Parties Plaintiff and Defendant; Capacity
18 Joinder of Claims and Remedies
19 Joinder of Persons Needed for Just Adjudication
20 Permissive Joinder of Parties
21 Misjoinder and Nonjoinder of Parties
22 Interpleader
23 Class Actions
23.1 Derivative Actions by Shareholders
23.2 Actions Relating to Unincorporated Associations
24 Intervention
25 Substitution of Parties
5. DEPOSITIONS AND DISCOVERY
26 General Provisions Governing Discovery
27 Perpetuation of Testimony
28 Persons Before Whom Depositions May Be Taken
29 Stipulations Regarding Discovery Procedure
30 Depositions Upon Oral Examination
31 Depositions Upon Written Questions
32 Use of Depositions in Court Proceedings
33 Interrogatories to Parties
34 Production of Documents and Things and Entry Upon Land for Inspection
and Other Purposes
35 Physical and Mental Examination of Persons
36 Requests for Admission
37 Failure To Make Discovery: Sanctions
6. TRIALS
38 Jury Trial of Right
39 Trial by Jury or by the Court
40 Assignment of Cases
41 Dismissal of Actions
42 Consolidation; Separate Trials
43 Taking of Testimony
44 Proof of Official Record
44.1 Determination of Foreign Law
45 Subpoena
46 Exceptions Unnecessary
47 Jurors
48 Juries of Less Than Twelve
49 Verdicts
50 Judgment as a Matter of Law in Jury Trials; Alternative Motion for New Trial; Conditional Rulings
51 Instructions to Jury and Deliberation
52 Decisions, Findings and Conclusions
53 Masters (Reserved)
53.1 Referees
53.2 Court Commissioners
53.3 Appointment Of Masters In Discovery Matters
53.4 Procedures for Mandatory Mediation of Health Care Claims
7. JUDGMENT
54 Judgments and Costs
55 Default and Judgment
56 Summary Judgment
57 Declaratory Judgments
58 Entry of Judgment
59 New Trial, Reconsideration, and Amendment of Judgments
60 Relief From Judgment or Order
61 Harmless Error Reserved
62 Stay of Proceedings To Enforce a Judgment
63 Judges
8. PROVISIONAL AND FINAL REMEDIES
64 Seizure of Person or Property
65 Injunctions
65.1 Security--Proceedings Against Sureties
66 Receivership Proceedings
67 Deposit in Court
68 Offer of Judgment
69 Execution
70 Judgment for Specific Acts; Vesting Title
70.1 Appearance by Attorney
71 Withdrawal by Attorney
9. APPEALS
RESERVED
10. SUPERIOR COURTS AND CLERKS
77 Superior Courts and Judicial Officers
78 Clerks
79 Books and Records Kept by the Clerk
80 Court Reporters
11. GENERAL PROVISIONS
81 Applicability in General
82 Venue
82.5 Tribal Court Jurisdiction
83 Local Rules of Court
84 Forms (Reserved)
85 Title of Rules
86 Effective Dates
RULE CR 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.
[Adopted effective July 1, 1967; amended effective September 1, 2005.]
RULE 2
ONE FORM OF ACTION
There shall be one form of action to be known as "civil action."
RULE 2A
STIPULATIONS
No agreement or consent between parties or attorneys in respect to the
proceedings in a cause, the purport of which is disputed, will be regarded
by the court unless the same shall have been made and assented to in open
court on the record, or entered in the minutes, or unless the evidence
thereof shall be in writing and subscribed by the attorneys denying the
same.
RULE 3
COMMENCEMENT OF ACTION
(a) Methods. Except as provided in rule 4.1, a civil action is
commenced by service of a copy of a summons together with a copy of a
complaint, as provided in rule 4 or by filing a complaint. Upon written
demand by any other party, the plaintiff instituting the action shall pay
the filing fee and file the summons and complaint within 14 days after
service of the demand or the service shall be void. An action shall not be
deemed commenced for the purpose of tolling any statute of limitations
except as provided in RCW 4.16.170.
(b) Tolling Statute. (Reserved. See RCW 4.16.170.)
(c) Obtaining Jurisdiction. (Reserved. See RCW 4.28.020.)
(d) Lis Pendens. (Reserved. See RCW 4.28.320 and 4.28.160.)
RULE 4
PROCESS
(a) Summons--Issuance.
(1) The summons must be signed and dated by the plaintiff or his
attorney, and directed to the defendant requiring him to defend the action
and to serve a copy of his appearance or defense on the person whose name
is signed on the summons.
(2) Unless a statute or rule provides for a different time requirement,
the summons shall require the defendant to serve a copy of his defense
within 20 days after the service of summons, exclusive of the day of
service. If a statute or rule other than this rule provides for a different
time to serve a defense, that time shall be stated in the summons.
(3) A notice of appearance, if made, shall be in writing, shall be
signed by the defendant or his attorney, and shall be served upon the
person whose name is signed on the summons. In condemnation cases a notice
of appearance only shall be served on the person whose name is signed on
the petition.
(4) No summons is necessary for a counterclaim or cross claim for any
person who previously has been made a party. Counterclaims and cross claims
against an existing party may be served as provided in rule 5.
(b) Summons.
(1) Contents. The summons for personal service shall contain:
(i) the title of the cause, specifying the name of the court in which
the action is brought, the name of the county designated by the plaintiff
as the place of trial, and the names of the parties to the action,
plaintiff and defendant;
(ii) a direction to the defendant summoning him to serve a copy of his
defense within a time stated in the summons;
(iii) a notice that, in case of failure so to do, judgment will be
rendered against him by default. It shall be signed and dated by the
plaintiff, or his attorney, with the addition of his post office address,
at which the papers in the action may be served on him by mail.
(2) Form. Except in condemnation cases, and except as provided in rule
4.1, the summons for personal service in the state shall be substantially
in the following form:
SUPERIOR COURT OF WASHINGTON
FOR (_______________) COUNTY
_______________, )
Plaintiff, ) No. ______
v. )
_______________, ) SUMMONS (20 days)
Defendant. )
TO THE DEFENDANT: A lawsuit has been started against you in the above
entitled court by _______________, plaintiff. Plaintiff's claim is stated
in the written complaint, a copy of which is served upon you with this
summons.
In order to defend against this lawsuit, you must respond to the
complaint by stating your defense in writing, and by serving a copy upon
the person signing this summons within 20 days after the service of this
summons, excluding the day of service, or a default judgment may be entered
against you without notice. A default judgment is one where plaintiff is
entitled to what he asks for because you have not responded. If you serve a
notice of appearance on the undersigned person, you are entitled to notice
before a default judgment may be entered.
You may demand that the plaintiff file this lawsuit with the court. If
you do so, the demand must be in writing and must be served upon the person
signing this summons. Within 14 days after you serve the demand, the
plaintiff must file this lawsuit with the court, or the service on you of
this summons and complaint will be void.
If you wish to seek the advice of an attorney in this matter, you
should do so promptly so that your written response, if any, may be served
on time.
This summons is issued pursuant to rule 4 of the Superior Court Civil
Rules of the State of Washington.
(signed)______________________________
______________________________________
Print or Type Name
( ) Plaintiff ( ) Plaintiff's Attorney
P. O. Address ________________________
Dated _____________________ Telephone Number _____________________
(c) By Whom Served. Service of summons and process, except when service
is by publication, shall be by the sheriff of the county wherein the
service is made, or by his deputy, or by any person over 18 years of age
who is competent to be a witness in the action, other than a party.
Subpoenas may be served as provided in rule 45.
(d) Service.
(1) Of Summons and Complaint. The summons and complaint shall be served
together.
(2) Personal in State. Personal service of summons and other process
shall be as provided in RCW 4.28.080-.090, 23B.05.040, 23B.15.100,
46.64.040, and 48.05.200 and .210, and other statutes which provide for
personal service.
(3) By Publication. Service of summons and other process by publication
shall be as provided in RCW 4.28.100 and .110, 13.34.080, and 26.33.310,
and other statutes which provide for service by publication.
(4) Alternative to Service by Publication. In circumstances justifying
service by publication, if the serving party files an affidavit stating
facts from which the court determines that service by mail is just as
likely to give actual notice as service by publication, the court may order
that service be made by any person over 18 years of age, who is competent
to be a witness, other than a party, by mailing copies of the summons and
other process to the party to be served at his last known address or any
other address determined by the court to be appropriate. Two copies shall
be mailed, postage prepaid, one by ordinary first class mail and the other
by a form of mail requiring a signed receipt showing when and to whom it
was delivered. The envelopes must bear the return address of the sender.
The summons shall contain the date it was deposited in the mail and shall
require the defendant to appear and answer the complaint within 90 days
from the date of mailing. Service under this subsection has the same
jurisdictional effect as service by publication.
(5) Appearance. A voluntary appearance of a defendant does not preclude
his right to challenge lack of jurisdiction over his person, insufficiency
of process, or insufficiency of service of process pursuant to rule 12(b).
(e) Other Service.
(1) Generally. Whenever a statute or an order of court thereunder
provides for service of a summons, or of a notice, or of an order in lieu
of summons upon a party not an inhabitant of or not found within the state,
service may be made under the circumstances and in the manner prescribed by
the statute or order, or if there is no provision prescribing the manner of
service, in a manner prescribed by this rule.
(2) Personal Service Out of State--Generally. Although rule 4 does not
generally apply to personal service out of state, the prescribed form of
summons may, with the modifications required by statute, be used for that
purpose. See RCW 4.28.180.
(3) Personal Service Out of State--Acts Submitting Person to
Jurisdiction of Courts. (Reserved. See RCW 4.28.185.)
(4) Nonresident Motorists. (Reserved. See RCW 46.64.040.)
(f) Territorial Limits of Effective Service. All process other than a
subpoena may be served anywhere within the territorial limits of the state,
and when a statute or these rules so provide beyond the territorial limits
of the state. A subpoena may be served within the territorial limits as
provided in rule 45 and RCW 5.56.010.
(g) Return of Service. Proof of service shall be as follows:
(1) If served by the sheriff or his deputy, the return of the sheriff
or his deputy endorsed upon or attached to the summons;
(2) If served by any other person, his affidavit of service endorsed
upon or attached to the summons; or
(3) If served by publication, the affidavit of the publisher, foreman,
principal clerk, or business manager of the newspaper showing the same,
together with a printed copy of the summons as published; or
(4) If served as provided in subsection (d)(4), the affidavit of the
serving party stating that copies of the summons and other process were
sent by mail in accordance with the rule and directions by the court, and
stating to whom, and when, the envelopes were mailed.
(5) The written acceptance or admission of the defendant, his agent or
attorney;
(6) In case of personal service out of the state, the affidavit of the
person making the service, sworn to before a notary public, with a seal
attached, or before a clerk of a court of record.
(7) In case of service otherwise than by publication, the return,
acceptance, admission, or affidavit must state the time, place, and manner
of service. Failure to make proof of service does not affect the validity
of the service.
(h) Amendment of Process. At any time in its discretion and upon such
terms as it deems just, the court may allow any process or proof of service
thereof to be amended, unless it clearly appears that material prejudice
would result to the substantial rights of the party against whom the
process issued.
(i) Alternative Provisions for Service in a Foreign Country.
(1) Manner. When a statute or rule authorizes service upon a party not
an inhabitant of or found within the state, and service is to be effected
upon the party in a foreign country, it is also sufficient if service of
the summons and complaint is made: (A) in the manner prescribed by the law
of the foreign country for service in that country in an action in any of
its courts of general jurisdiction; or (B) as directed by the foreign
authority in response to a letter rogatory or a letter of request; or (C)
upon an individual, by delivery to him personally, and upon a corporation
or partnership or association, by delivery to an officer, a managing or
general agent; or (D) by any form of mail, requiring a signed receipt, to
be addressed and mailed to the party to be served; or (E) pursuant to the
means and terms of any applicable treaty or convention; or (F) by
diplomatic or consular officers when authorized by the United States
Department of State; or (G) as directed by order of the court. Service
under (C) or (G) above may be made by any person who is not a party and is
not less than 21 years of age or who is designated by order of the court or
by the foreign court. The method for service of process in a foreign
country must comply with applicable treaties, if any, and must be
reasonably calculated, under all the circumstances, to give actual notice.
(2) Return. Proof of service may be made as prescribed by section (g)
of this rule, or by the law of the foreign country, or by a method provided
in any applicable treaty or convention, or by order of the court. When
service is made pursuant to subsection (1)(D) of this section, proof of
service shall include a receipt signed by the addressee or other evidence
of delivery to the addressee satisfactory to the court.
(j) Other Process. These rules do not exclude the use of other forms of
process authorized by law.
RULE 4.1
PROCESS--DOMESTIC RELATIONS ACTIONS
(a) Summons--General. Actions authorized by RCW 26.09 shall be
commenced by filing a petition or by service of a copy of a summons
together with a copy of the petition on respondent as provided in rule 4.
Upon written demand by the respondent, the petitioner shall pay the filing
fee and file the summons and petition within 14 days after service of the
demand or the service shall be void. No summons is necessary if both
spouses sign a joint petition or if the respondent files a written joinder
in the proceeding.
(b) Summons--Content, Form.
(1) Content. The summons shall contain the title of the action, the
name of the county and the court in which the action is brought, the names
of the parties, as petitioner and respondent, a direction to the respondent
to serve a copy of his or her response on the person who has signed the
summons, the time limit within which the copy of the response must be
served, notice that failure to serve a copy of the response within the
stated time may result in a judgment by default, the signature and address
of the petitioner or petitioner's attorney, and the date.
(2) Form. The summons for personal service in the state in an action
for dissolution of marriage shall be substantially in the form below. The
summons for personal service in the state in any other action authorized by
RCW 26.09 should be adapted from this form. The summons for personal
service out of state should be adapted from this form and must include the
modifications required by statute. See RCW 4.28.180.
SUPERIOR COURT OF WASHINGTON
FOR (_______________) COUNTY
In the Matter of the )
Marriage of ) No. ______
_______________, )
Petitioner, )
and )
_______________, ) SUMMONS FOR
Respondent. ) DISSOLUTION OF MARRIAGE
TO THE RESPONDENT: The petitioner has started an action in the above
court requesting that your marriage be dissolved. Additional requests, if
any, are stated in the petition, a copy of which is attached to this
summons.
You must respond to this summons and petition by serving a copy of your
written response on the person signing this summons. If you do not serve
your written response within 20 days after the date this summons was served
on you, exclusive of the day of service, the court may enter an order of
default against you, and at the end of 90 days after service and filing,
the court may, without further notice to you, enter a decree dissolving
your marriage and approving or providing for other relief requested in the
petition. If you serve a notice of appearance on the undersigned person,
you are entitled to notice before an order of default or a decree may be
entered.
You may demand that the petitioner file this action with the court. If
you do so, the demand must be in writing and must be served upon the person
signing this summons. Within 14 days after you serve the demand, the
petitioner must file this action with the court, or the service on you of
this summons and petition will be void.
If you wish to seek the advice of an attorney in this matter, you
should do so promptly so that your written response, if any, may be served
on time.
One method of serving a copy of your response on the petitioner is to
send it by certified mail with return receipt requested.
This summons is issued pursuant to rule 4.1 of the Superior Court Civil
Rules of the State of Washington.
Dated ________________________ (signed) __________________________
___________________________________
Print or Type Name
SERVE A COPY OF YOUR RESPONSE ON:
( ) Petitioner ( ) Petitioner's Attorney
________________________________________
Address
________________________________________
________________________________________
(city) (zip)
RULE CR 4.2
PROCESS – LIMITED REPRESENTATION
(a) An attorney may undertake to provide limited representation
in accordance with RPC 1.2 to a person involved in a court
proceeding.
(b) Providing limited representation of a person under these
rules shall not constitute an entry of appearance by the attorney
for purposes of CR 5(b) and does not authorize or require the
service or delivery of pleadings, papers or other documents upon
the attorney under CR 5(b). Representation of the person by the
attorney at any proceeding before a judge, magistrate, or other
judicial officer on behalf of the person constitutes an entry of
appearance pursuant to RCW 4.28.210 and CR 4(a)(3), except to the
extent that a limited notice of appearance as provided for under
CR 70.1 is filed and served prior to or simultaneous with the
actual appearance. The attorney’s violation of this Rule may
subject the attorney to the sanctions provided in CR 11(a).
[Effective October 29, 2002]
RULE CR 5
SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS
(a) Service--When Required. Except as otherwise provided in these
rules, every order required by its terms to be served, every pleading
subsequent to the original complaint unless the court otherwise orders
because of numerous defendants, every paper relating to discovery required
to be served upon a party unless the court otherwise orders, every written
motion other than one which may be heard ex parte, and every written
notice, appearance, demand, offer of judgment, designation of record on
appeal, and similar paper shall be served upon each of the parties. No
service need be made on parties in default for failure to appear except
that pleadings asserting new or additional claims for relief against them
shall be served upon them in the manner provided for service of summons in
rule 4.
In an action begun by seizure of property, in which no person need be
or is named as defendant, any service required to be made prior to the
filing of an answer, claim, or appearance shall be made upon the person
having custody or possession of the property at the time of its seizure.
(b) Service--How Made.
(1) On Attorney or Party. Whenever under these rules service is
required or permitted to be made upon a party represented by an attorney
the service shall be made upon the attorney unless service upon the party
himself is ordered by the court. Service upon the attorney or upon a party
shall be made by delivering a copy to him or by mailing it to him at his
last known address or, if no address is known, filing with the clerk of the
court an affidavit of attempt to serve. Delivery of a copy within this rule
means: handing it to the attorney or to the party; or leaving it at his
office with his clerk or other person in charge thereof; or, if there is no
one in charge, leaving it in a conspicuous place therein; or, if the office
is closed or the person to be served has no office, leaving it at his
dwelling house or usual place of abode with some person of suitable age and
discretion then residing therein. Service on an attorney is subject to the
restrictions in subsections (b)(4) and (5) of this rule and in rule 71,
Withdrawal by Attorneys.
(2) Service by Mail.
(A) How made. If service is made by mail, the papers shall be deposited
in the post office addressed to the person on whom they are being served,
with the postage prepaid. The service shall be deemed complete upon the
third day following the day upon which they are placed in the mail, unless
the third day falls on a Saturday, Sunday or legal holiday, in which event
service shall be deemed complete on the first day other than a Saturday,
Sunday or legal holiday, following the third day.
(B) Proof of service by mail. Proof of service of all papers permitted
to be mailed may be by written acknowledgment of service, by affidavit of
the person who mailed the papers, or by certificate of an attorney. The
certificate of an attorney may be in form substantially as follows:
CERTIFICATE
I certify that I mailed a copy of the foregoing _______________ to
(John Smith), (plaintiff's) attorney, at (office address or residence), and
to (Joseph Doe), an additional (defendant's) attorney (or attorneys) at
(office address or residence), postage prepaid, on (date).
___________________________________
(John Brown)
Attorney for (Defendant) William Noe
(3) Service on Nonresidents. Where a plaintiff or defendant who has
appeared resides outside the state and has no attorney in the action, the
service may be made by mail if his residence is known; if not known, on the
clerk of the court for him. Where a party, whether resident or nonresident,
has an attorney in the action, the service of papers shall be upon the
attorney instead of the party. If the attorney does not have an office
within the state or has removed his residence from the state, the service
may be upon him personally either within or without the state, or by mail
to him at either his place of residence or his office, if either is known,
and if not known, then by mail upon the party, if his residence is known,
whether within or without the state. If the residence of neither the party
nor his attorney, nor the office address of the attorney is known, an
affidavit of the attempt to serve shall be filed with the clerk of the
court.
(4) Service on Attorney Restricted After Final Judgment. A party,
rather than the party's attorney, must be served if the final judgment or
decree has been entered and the time for filing an appeal has expired, or
if an appeal has been taken (i) after the final judgment or decree upon
remand has been entered or (ii) after the mandate has been issued affirming
the judgment or decree or disposing of the case in a manner calling for no
further action by the trial court. This rule is subject to the exceptions
defined in subsection (b)(6).
(5) Required Notice to Party. If a party is served under circumstances
described in subsection (b)(4), the paper shall (i) include a notice to the
party of the right to file written opposition or a response, the time
within which such opposition or response must be filed, and the place where
it must be filed; (ii) state that failure to respond may result in the
requested relief being granted; and (iii) state that the paper has not been
served on that party's lawyer.
(6) Exceptions. An attorney may be served notwithstanding subsection
(b)(4) of this rule if (i) fewer than 63 days have elapsed since the filing
of any paper or the issuance of any process in the action or proceeding or
(ii) if the attorney has filed a notice of continuing representation.
(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 when made prior to 5:00
p.m. on a judicial day. Service made on a Saturday, Sunday, holiday or
after 5:00 p.m. on any other day shall be deemed complete at 9:00 a.m. on
the first judicial day thereafter; 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) Service--Numerous Defendants. In any action in which there are
unusually large numbers of defendants, the court, upon motion or of its own
initiative, may order that service of the pleadings of the defendants and
replies thereto need not be made as between the defendants and that any
cross claim, counterclaim, or matter constituting an avoidance or
affirmative defense contained therein shall be deemed to be denied or
avoided by all other parties and that the filing of any such pleading and
service thereof upon the plaintiff constitutes due notice of it to the
parties. A copy of every such order shall be served upon the parties in
such manner and form as the court directs.
(d) Filing.
(1) Time. Complaints shall be filed as provided in rule 3(a). Except as
provided for discovery materials in section (i) of this rule and for
documents accompanying a notice under ER 904(b), all pleadings and other
papers after the complaint required to be served upon a party shall be
filed with the court either before service or promptly thereafter.
(2) Sanctions. The effect of failing to file a complaint is governed by
rule 3. If a party fails to file any other pleading or paper under this
rule, the court upon 5 days' notice of motion for sanctions may dismiss the
action or strike the pleading or other paper and grant judgment against the
defaulting party for costs and terms including a reasonable attorney fee
unless good cause is shown for, or justice requires, the granting of an
extension of time.
(3) Limitation. No sanction shall be imposed if prior to the hearing
the pleading or paper other than the complaint is filed and the moving
attorney is notified of the filing before he leaves his office for the
hearing.
(4) Nonpayment. No further action shall be taken in the pending action
and no subsequent pleading or other paper shall be filed until the judgment
is paid. No subsequent action shall be commenced upon the same subject
matter until the judgment has been paid.
(e) Filing With the Court Defined. The filing of pleadings and other
papers with the court as required by these rules shall be made by filing
them with the clerk of the court, except that the judge may permit the
papers to be filed with him or her, in which event the judge shall note
thereon the filing date and forthwith transmit them to the office of the
clerk. Papers may be filed by facsimile transmission if permitted elsewhere
in these or other rules of court, or if authorized by the clerk of the
receiving court. The clerk may refuse to accept for filing any paper
presented for that purpose because it is not presented in proper form as
required by these rules or any local rules or practices.
(f) Other Methods of Service. Service of all papers other than the
summons and other process may also be made as authorized by statute.
(g) Certified Mail. Whenever the use of "registered" mail is authorized
by statutes relating to judicial proceedings or by rule of court,
"certified" mail, with return receipt requested, may be used.
(h) Service of Papers by Telegraph. [Rescinded.]
(i) Discovery Material Not To Be Filed; Exceptions. Depositions upon
oral examinations, depositions upon written questions, interrogatories and
responses thereto, requests for production or inspection and responses
thereto, requests for admission and responses thereto, and other discovery
requests and responses thereto shall not be filed with the court unless for
use in a proceeding or trial or on order of the court.
(j) Filing by Facsimile. (Reserved. See GR 17--Facsimile Transmission.)
[Amended effective July 1, 1972; September 1, 1978; September 1, 1983;
September 1, 1988; September 1, 1993; September 17, 1993; October 29, 1993;
September 1, 2005.]
RULE 6
TIME
(a) Computation. In computing any period of time prescribed or allowed
by these rules, by the local rules of any superior court, by order of
court, or by any applicable statute, the day of the act, event, or default
from which the designated period of time begins to run shall not be
included. The last day of the period so computed shall be included, unless
it is a Saturday, a Sunday or a legal holiday, in which event the period
runs until the end of the next day which is neither a Saturday, a Sunday
nor a legal holiday. Legal holidays are prescribed in RCW 1.16.050. When
the period of time prescribed or allowed is less than 7 days, intermediate
Saturdays, Sundays and legal holidays shall be excluded in the computation.
(b) Enlargement. When by these rules or by a notice given thereunder or
by order of court an act is required or allowed to be done at or within a
specified time, the court for cause shown may at any time in its
discretion, (1) with or without motion or notice, order the period enlarged
if request therefor is made before the expiration of the period originally
prescribed or as extended by a previous order or, (2) upon motion made
after the expiration of the specified period, permit the act to be done
where the failure to act was the result of excusable neglect; but it may
not extend the time for taking any action under rules 50(b), 52(b), 59(b),
59(d), and 60(b).
(c) Proceeding Not To Fail for Want of Judge or Session of Court. No
proceeding in a court of justice in any action, suit, or proceeding pending
therein, is affected by a vacancy in the office of any or all of the judges
or by the failure of a session of the court.
(d) For Motions--Affidavits. A written motion, other than one which may
be heard ex parte, and notice of the hearing thereof shall be served not
later than 5 days before the time specified for the hearing, unless a
different period is fixed by these rules or by order of the court. Such an
order may for cause shown be made on ex parte application. When a motion is
supported by affidavit, the affidavit shall be served with the motion; and,
except as otherwise provided in rule 59(c), opposing affidavits may be
served not later than 1 day before the hearing, unless the court permits
them to be served at some other time.
(e) Additional Time After Service by Mail. Whenever a party has the
right or is required to do some act or take some proceedings within a
prescribed period after the service of a notice or other paper upon him and
the notice or paper is served upon him by mail, 3 days shall be added to
the prescribed period.
RULE 7
PLEADINGS ALLOWED; FORM OF MOTIONS
(a) Pleadings. There shall be a complaint and an answer; a reply to a
counterclaim denominated as such; an answer to a cross claim, if the answer
contains a cross claim; a third party complaint, if a person who was not an
original party is summoned under the provisions of rule 14; and a third
party answer, if a third party complaint is served. No other pleading shall
be allowed, except that the court may order a reply to an answer or a third
party answer.
(b) Motions and Other Papers.
(1) How Made. An application to the court for an order shall be by
motion which, unless made during a hearing or trial, shall be made in
writing, shall state with particularity the grounds therefor, and shall set
forth the relief or order sought. The requirement of writing is fulfilled
if the motion is stated in a written notice of the hearing of the motion.
(2) Form. The rules applicable to captions and other matters of form of
pleadings apply to all motions and other papers provided for by these
rules.
(3) Signing. All motions shall be signed in accordance with rule 11.
(4) Identification of Evidence. When a motion is supported by
affidavits or other papers, it shall specify the papers to be used by the
moving party.
(5) Telephonic Argument. Oral argument on civil motions, including
family law motions, may be heard by conference telephone call in the
discretion of the court. The expense of the call shall be shared equally by
the parties unless the court directs otherwise in the ruling or decision on
the motion.
(c) Demurrers, Pleas, etc., Abolished. Demurrers, pleas and exceptions
for insufficiency of a pleading shall not be used.
(d) Security for Costs. (Reserved. See RCW 4.84.210 et seq.)
RULE 8
GENERAL RULES OF PLEADING
(a) Claims for Relief. A pleading which sets forth a claim for relief,
whether an original claim, counterclaim, cross claim, or third party claim,
shall contain (1) a short and plain statement of the claim showing that the
pleader is entitled to relief and (2) a demand for judgment for the relief
to which he deems himself entitled. Relief in the alternative or of several
different types may be demanded.
(b) Defenses; Form of Denials. A party shall state in short and plain
terms his defenses to each claim asserted and shall admit or deny the
averments upon which the adverse party relies. If he is without knowledge
or information sufficient to form a belief as to the truth of an averment,
he shall so state and this has the effect of a denial. Denials shall fairly
meet the substance of the averments denied. When a pleader intends in good
faith to deny only a part or a qualification of an averment, he shall
specify so much of it as is true and material and shall deny only the
remainder. Unless the pleader intends in good faith to controvert all the
averments of the preceding pleading, he may make his denials as specific
denials of designated averments or paragraphs, or he may generally deny all
the averments except such designated averments or paragraphs as he
expressly admits; but, when he does so intend to controvert all its
averments, he may do so by general denial subject to the obligations set
forth in rule 11.
(c) Affirmative Defenses. In pleading to a preceding pleading, a party
shall set forth affirmatively accord and satisfaction, arbitration and
award, assumption of risk, contributory negligence, discharge in
bankruptcy, duress, estoppel, failure of consideration, fault of a
nonparty, fraud, illegality, injury by fellow servant, laches, license,
payment, release, res judicata, statute of frauds, statute of limitation,
waiver, and any other matter constituting an avoidance or affirmative
defense. When a party has mistakenly designated a defense as a counterclaim
or a counterclaim as a defense, the court on terms, if justice so requires,
shall treat the pleading as if there had been a proper designation.
(d) Effect of Failure To Deny. Averments in a pleading to which a
responsive pleading is required, other than those as to the amount of
damage, are admitted when not denied in the responsive pleading. Averments
in a pleading to which no responsive pleading is required or permitted
shall be taken as denied or avoided.
(e) Pleading To Be Concise and Direct; Consistency.
(1) Each averment of a pleading shall be simple, concise, and direct.
No technical forms of pleadings or motions are required.
(2) A party may set forth two or more statements of a claim or defense
alternately or hypothetically, either in one count or defense or in
separate counts or defenses. When two or more statements are made in the
alternative and one of them if made independently would be sufficient, the
pleading is not made insufficient by the insufficiency of one or more of
the alternative statements. A party may also state as many separate claims
or defenses as he has regardless of consistency and whether based on legal
or on equitable grounds or on both. All statements shall be made subject to
the obligations set forth in rule 11.
(f) Construction of Pleadings. All pleadings shall be so construed as
to do substantial justice. The adoption of this rule shall not be
considered an adoption or approval of the forms of pleading in the Appendix
of Forms approved in rule 84, Federal Rules of Civil Procedure.
RULE 9
PLEADING SPECIAL MATTERS
(a) Capacity. It is not necessary to aver the capacity of a party to
sue or be sued or the authority of a party to sue or be sued in a
representative capacity or the legal existence of an organized association
of persons that is made a party. When a party desires to raise an issue as
to the legal existence of any party or the capacity of any party to sue or
be sued or the authority of a party to sue or be sued in a representative
capacity, he shall do so by specific negative averment which shall include
such supporting particulars as are peculiarly within the pleaders
knowledge.
(b) Fraud, Mistake, Condition of the Mind. In all averments of fraud or
mistake, the circumstances constituting fraud or mistake shall be stated
with particularity. Malice, intent, knowledge, and other condition of mind
of a person may be averred generally.
(c) Condition Precedent. In pleading the performance or occurrence of
conditions precedent, it is sufficient to aver generally that all
conditions precedent have been performed or have occurred. A denial of
performance or occurrence shall be made specifically and with
particularity.
(d) Official Document or Act. In pleading an official document or
official act, it is sufficient to aver that the document was issued or the
act done in compliance with law.
(e) Judgment. In pleading a judgment or decision of a domestic or
foreign court, judicial or quasi-judicial tribunal, or of a board or
officer, it is sufficient to aver the judgment or decision without setting
forth matter showing jurisdiction to render it.
(f) Time and Place. For the purpose of testing the sufficiency of a
pleading, averments of time and place are material and shall be considered
like all other averments of material matter.
(g) Special Damage. When items of special damage are claimed, they
shall be specifically stated.
(h) Pleading Existence of City or Town. In pleading the existence of
any city or town in this state, it shall be sufficient to state in such
pleading that the same is an existing city or town, incorporated or
organized under the laws of Washington.
(i) Pleading Ordinance. In pleading any ordinance of a county, city or
town in this state it shall be sufficient to state the title of such
ordinance and the date of its passage, whereupon the court shall take
judicial notice of the existence of such ordinance and the tenor and effect
thereof.
(j) Pleading Private Statutes. In pleading a private statute, or a
right derived therefrom, it shall be sufficient to refer to such statute by
its title, and the day of its passage, and the court shall thereupon take
judicial notice thereof.
(k) Foreign Law.
(1) United States Jurisdictions. A party who intends to raise an issue
concerning the law of a state, territory, or other jurisdiction of the
United States shall set forth in his pleading facts which show that the law
of another United States jurisdiction may be applicable, or shall state in
his pleading or serve other reasonable written notice that the law of
another United States jurisdiction may be relied upon.
(2) Other Jurisdictions. A party who intends to raise an issue
concerning the law of a jurisdiction other than a state, territory or other
jurisdiction of the United States shall give notice in his pleading of the
foreign jurisdiction whose law he contends may be applicable to the facts
of the case. The following matters need not be pleaded, but may be
discovered pursuant to rule 26:
(i) the party's contentions as to which issues of law are governed by
the foreign law;
(ii) the substance of such foreign law;
(iii) the expected effect of such foreign law on the legal issues and
on the outcome of the case being tried;
(iv) the specific foreign statutes, regulations, judicial and
administrative decisions, documents and other nonprivileged written
materials and translations thereof upon which the party intends to rely.
(3) Application of Foreign Law. Issues of foreign law may be simplified
pursuant to rule 16 and determined in advance of trial pursuant to rule 56.
(4) Failure To Plead Foreign Law. If no party has requested in his
pleadings application of the law of a jurisdiction other than a state,
territory or other jurisdiction of the United States, the court at time of
trial shall apply the law of the State of Washington unless such
application would result in manifest injustice.
(l) Burden of Proof. Nothing in this rule shall be construed to shift
or alter the burden of proof.
RULE CR 10
FORM OF PLEADINGS AND OTHER PAPERS
(a) Caption. Every pleading shall contain a caption setting forth the name
of the court, the title of the action, the file number if known to the
person signing it, and an identification as to the nature of the
pleading or other paper.
(1) Names of Parties. In the complaint the title of the action shall
include the names of all the parties, but in other pleadings it
is sufficient to state the name of the first party on each side
with an appropriate indication of other parties.
(2) Unknown Names. When the plaintiff is ignorant of the name of the
defendant, it shall be so stated in his pleading, and such
defendant may be designated in any pleading or proceeding by any
name, and when his true name shall be discovered, the pleading or
proceeding may be amended accordingly.
(3) Unknown Heirs. When the heirs of any deceased person are proper
parties defendant to any action relating to real property in this
state, and when the names and residences of such heirs are
unknown, such heirs may be proceeded against under the name and
title of the "unknown heirs" of the deceased. In any action
brought to determine any adverse claim, estate, lien, or interest
in real property, or to quiet title to real property, unknown
parties shall be designated as "also all other persons or parties
unknown claiming any right, title, estate, lien, or interest in
the real estate described in the complaint herein."
(b) Paragraphs; Separate Statements. All averments of claim or defense
shall be made in numbered paragraphs, the contents of each of which
shall be limited as far as practicable to a statement of a single set
of circumstances; and a paragraph may be referred to by number in all
succeeding pleadings. Each claim founded upon a separate transaction
or occurrence, and each defense other than denials, shall be stated in
a separate count or defense whenever a separation facilitates the
clear presentation of the matters set forth.
(c) Adoption by Reference; Exhibits. Statements in a pleading may be
adopted by reference in a different part of the same pleading or in
another pleading or in any motion. A copy of any written instrument
which is an exhibit to a pleading is a part thereof for all purposes.
(d) Format Requirements. [Reserved. See GR 14.]
(e) Format Recommendations. It is recommended that all pleadings and other
papers include or provide for the following:
(1) Service and Filing. Space should be left at the top of the first
page to provide on the right half space for the clerk's filing
stamp, and space at the left half for acknowledging the receipt
of copies.
(2) Title. All pleadings under the space under the docket number
should contain a title indicating their purpose and party
presenting them. For example:
USE DO NOT USE
Petition for Dissolution Petition
Defendant's Motion for Support, etc. Motion
Order for Support Order
Plaintiff's Trial Brief Trial Brief
(3) Bottom Notation. At the left side of the bottom of each page of
all pleadings and other papers an abbreviated name of the
pleading or other paper should be repeated, followed by the page
number. At the right side of the bottom of the first page of each
pleading or other paper the name, mailing address and telephone
number of the attorney or firm preparing the paper should be
printed or typed.
(4) Typed Names. The names of all persons signing a pleading or other
paper should be typed under their signatures.
(5) Headings and Subheadings. Headings and subheadings should be used
for all paragraphs which shall be numbered with roman and/or
arabic numerals.
(6) Numbered Paper. Use numbered paper.
(f) Personal Idenifiers Prohibited. [Reserved. See GR 31(e).]
(g) Unpublished Opinions. [Reserved. See GR 14.1.]
[Amended effective September 1, 1990; September 1, 2007.]
RULE CR 11
SIGNING 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 under the circumstances: (1) it is well grounded in
fact; (2) 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; (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 legal
memorandum, and that to the best of the attorney's knowledge,
information, and belief, formed after an inquiry reasonable
under the circumstances: (1) it is well grounded in fact, (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, (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.
[Amended effective January 1, 1974; September 1, 1985; September 1, 1990;
September 17, 1993; October 15, 2002; September 1, 2005.]
RULE 12
DEFENSES AND OBJECTIONS
(a) When Presented. A defendant shall serve his answer within the
following periods:
(1) Within 20 days, exclusive of the day of service, after the service
of the summons and complaint upon him pursuant to rule 4;
(2) Within 60 days from the date of the first publication of the
summons if the summons is served by publication in accordance with rule
4(d)(3);
(3) Within 60 days after the service of the summons upon him if the
summons is served upon him personally out of the state in accordance with
RCW 4.28.180 and 4.28.185 or on the Secretary of State as provided by RCW
46.64.040.
(4) Within the period fixed by any other applicable statutes or rules.
A party served with a pleading stating a cross claim against him shall
serve an answer thereto within 20 days after the service upon him. The
plaintiff shall serve his reply to a counterclaim in the answer within 20
days after service of the answer or, if a reply is ordered by the court,
within 20 days after service of the order, unless the order otherwise
directs. The service of a motion permitted under this rule alters these
periods of time as follows, unless a different time is fixed by order of
the court.
(A) If the court denies the motion or postpones its disposition until
the trial on the merits, the responsive pleading shall be served within 10
days after notice of the courts action.
(B) If the court grants a motion for a more definite statement, the
responsive pleading shall be served within 10 days after the service of the
more definite statement.
(b) How Presented. Every defense, in law or fact, to a claim for relief
in any pleading, whether a claim, counterclaim, cross claim, or third party
claim, shall be asserted in the responsive pleading thereto if one is
required, except that the following defenses may at the option of the
pleader be made by motion: (1) lack of jurisdiction over the subject
matter, (2) lack of jurisdiction over the person, (3) improper venue, (4)
insufficiency of process, (5) insufficiency of service of process, (6)
failure to state a claim upon which relief can be granted, (7) failure to
join a party under rule 19. A motion making any of these defenses shall be
made before pleading if a further pleading is permitted. No defense or
objection is waived by being joined with one or more other defenses or
objections in a responsive pleading or motion. If a pleading sets forth a
claim for relief to which the adverse party is not required to serve a
responsive pleading, he may assert at the trial any defense in law or fact
to that claim for relief. If, on a motion asserting the defense numbered
(6) to dismiss for failure of the pleading to state a claim upon which
relief can be granted, matters outside the pleading are presented to and
not excluded by the court, the motion shall be treated as one for summary
judgment and disposed of as provided in rule 56, and all parties shall be
given reasonable opportunity to present all material made pertinent to such
a motion by rule 56.
(c) Motion for Judgment on the Pleadings. After the pleadings are
closed but within such time as not to delay the trial, any party may move
for judgment on the pleadings. If, on a motion for judgment on the
pleadings, matters outside the pleadings are presented to and not excluded
by the court, the motion shall be treated as one for summary judgment and
disposed of as provided in rule 56, and all parties shall be given
reasonable opportunity to present all material made pertinent to such a
motion by rule 56.
(d) Preliminary Hearings. The defenses specifically enumerated (1)-(7)
in section (b) of this rule, whether made in a pleading or by motion, and
the motion for judgment mentioned in section (c) of this rule shall be
heard and determined before trial on application of any party, unless the
court orders that the hearing and determination thereof be deferred until
the trial.
(e) Motion for More Definite Statement. If a pleading to which a
responsive pleading is permitted is so vague or ambiguous that a party
cannot reasonably be required to frame a responsive pleading, or if more
particularity in that pleading will further the efficient economical
disposition of the action, he may move for a more definite statement before
interposing his responsive pleading. The motion shall point out the defects
complained of and the details desired. If the motion is granted and the
order of the court is not obeyed within 10 days after the notice of the
order or within such other time as the court may fix, the court may strike
the pleading to which the motion was directed or make such order as it
deems just.
(f) Motion To Strike. Upon motion made by a party before responding to
a pleading or, if no responsive pleading is permitted by these rules, upon
motion made by a party within 20 days after the service of the pleading
upon him or upon the courts own initiative at any time, the court may order
stricken from any pleading any insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.
(g) Consolidation of Defenses in Motion. A party who makes a motion
under this rule may join with it any other motions herein provided for and
then available to him. If a party makes a motion under this rule but omits
therefrom any defense or objection then available to him which this rule
permits to be raised by motion, he shall not thereafter make a motion based
on the defense or objection so omitted, except a motion as provided in
subsection (h)(2) hereof on any of the grounds there stated.
(h) Waiver or Preservation of Certain Defenses.
(1) A defense of lack of jurisdiction over the person, improper venue,
insufficiency of process, or insufficiency of service of process is waived
(A) if omitted from a motion in the circumstances described in section (g),
or (B) if it is neither made by motion under this rule nor included in a
responsive pleading or an amendment thereof permitted by rule 15(a) to be
made as a matter of course.
(2) A defense of failure to state a claim upon which relief can be
granted, a defense of failure to join a party indispensable under rule 19,
and an objection of failure to state a legal defense to a claim may be made
in any pleading permitted or ordered under rule 7(a), or by motion for
judgment on the pleadings, or at the trial on the merits.
(3) Whenever it appears by suggestion of the parties or otherwise that
the court lacks jurisdiction of the subject matter, the court shall dismiss
the action.
(i) Nonparty at Fault. Whenever a defendant or a third party defendant
intends to claim for purposes of RCW 4.22.070(1) that a nonparty is at
fault, such claim is an affirmative defense which shall be affirmatively
pleaded by the party making the claim. The identity of any nonparty claimed
to be at fault, if known to the party making the claim, shall also be
affirmatively pleaded.
RULE 13
COUNTERCLAIM AND CROSS CLAIM
(a) Compulsory Counterclaims. A pleading shall state as a counterclaim
any claim which at the time of serving the pleading the pleader has against
any opposing party, if it arises out of the transaction or occurrence that
is the subject matter of the opposing party's claim and does not require
for its adjudication the presence of third parties of whom the court cannot
acquire jurisdiction. But the pleader need not state the claim if (1) at
the time the action was commenced the claim was the subject of another
pending action, or (2) the opposing party brought suit upon his claim by
attachment or other process by which the court did not acquire jurisdiction
to render a personal judgment on that claim, and the pleader is not stating
any counterclaim under this rule.
(b) Permissive Counterclaims. A pleading may state as a counterclaim
any claim against an opposing party not arising out of the transaction or
occurrence that is the subject matter of the opposing party's claim.
(c) Counterclaim Exceeding Opposing Claim. A counterclaim may or may
not diminish or defeat the recovery sought by the opposing party. It may
claim relief exceeding in amount or different in kind from that sought in
the pleading of the opposing party.
(d) Counterclaim Against the State. These rules shall not be construed
to enlarge beyond the limits now fixed by law the right to assert
counterclaims, or to claim credits against the State or an officer or
agency thereof.
(e) Counterclaim Maturing or Acquired After Pleading. A claim which
either matured or was acquired by the pleader after serving his pleading
may, with the permission of the court, be presented as a counterclaim by
supplemental pleading.
(f) Omitted Counterclaim. When a pleader fails to set up a counterclaim
through oversight, inadvertence, or excusable neglect, or when justice
requires, he may by leave of court set up the counterclaim by amendment.
(g) Cross Claim Against Coparty. A pleading may state as a cross claim
any claim by one party against a coparty arising out of the transaction or
occurrence that is the subject matter either of the original action or of a
counterclaim therein or relating to any property that is the subject matter
of the original action. Such cross claim may include a claim that the party
against whom it is asserted is or may be liable to the cross claimant for
all or part of a claim asserted in the action against the cross claimant.
(h) Joinder of Additional Parties. Persons other than those made
parties to the original action may be made parties to a counterclaim or
cross claim in accordance with the provisions of rules 19 and 20.
(i) Separate Trials; Separate Judgment. If the court orders separate
trials as provided in rule 42(b), judgment on a counterclaim or cross claim
may be rendered in accordance with the terms of rule 54(b), even if the
claims of the opposing party have been dismissed or otherwise disposed of.
(j) Setoff Against Assignee. The defendant in a civil action upon a
contract express or implied, other than upon a negotiable promissory note
or bill of exchange, negotiated in good faith and without notice before
due, which has been assigned to the plaintiff, may set off a demand of a
like nature existing against the person to whom he was originally liable,
or any assignee prior to the plaintiff, of such contract, provided such
demand existed at the time of the assignment thereof, and belonging to the
defendant in good faith, before notice of such assignment, and was such a
demand as might have been set off against such person to whom he was
originally liable, or such assignee while the contract belonged to him.
(k) Other Setoff Rules. (Reserved. See RCW 4.32.120 through 4.32.150
and RCW 4.56.050 through 4.56.075.)
RULE 14
THIRD PARTY PRACTICE
(a) When Defendant May Bring in Third Party. At any time after
commencement of the action a defending party, as a third party plaintiff,
may cause a summons and complaint to be served upon a person not a party to
the action who is or may be liable to him for all or part of the
plaintiff's claim against him. The third party plaintiff need not obtain
leave to make the service if he files the third party complaint not later
than 10 days after he serves his original answer. Otherwise he must obtain
leave on motion upon notice to all parties to the action. The person served
with the summons and third party complaint, hereinafter called the third
party defendant, shall make his defenses to the third party plaintiff's
claim as provided in rule 12 and his counterclaims against the third party
plaintiff and cross claims against other third party defendants as provided
in rule 13. The third party defendant may assert against the plaintiff any
defenses which the third party plaintiff has to the plaintiff's claim. The
third party defendant may also assert any claim against the plaintiff
arising out of the transaction or occurrence that is the subject matter of
the plaintiff's claim against the third party plaintiff. The plaintiff may
assert any claim against the third party defendant arising out of the
transaction or occurrence that is the subject matter of the plaintiff's
claim against the third party plaintiff, and the third party defendant
thereupon shall assert his defenses as provided in rule 12 and his
counterclaims and cross claims as provided in rule 13. Any party may move
to strike the third party claim, or for its severance or separate trial. A
third party defendant may proceed under this rule against any person not a
party to the action who is or may be liable to him for all or part of the
claim made in the action against the third party defendant.
(b) When Plaintiff May Bring in Third Party. When a counterclaim is
asserted against a plaintiff, he may cause a third party to be brought in
under circumstances which under this rule would entitle a defendant to do
so.
(c) Tort Cases. This rule shall not be applied in tort cases, to permit
the joinder of a liability or indemnity insurance company, unless such
company is by statute or contract directly liable to the person injured or
damaged.
RULE CR 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) Amendments To Conform to the Evidence. When issues not
raised by the pleadings are tried by express or implied consent
of the parties, they shall be treated in all respects as if they
had been raised in the pleadings. Such amendment of the pleadings
as may be necessary to cause them to conform to the evidence and
to raise these issues may be made upon motion of any party at any
time, even after judgment; but failure so to amend does not
affect the result of the trial of these issues. If evidence is
objected to at the trial on the ground that it is not within the
issues made by the pleadings, the court may allow the pleadings
to be amended and shall do so freely when the presentation of the
merits of the action will be subserved thereby and the objecting
party fails to satisfy the court that the admission of such
evidence would prejudice him in maintaining his action or defense
upon the merits. The court may grant a continuance to enable the
objecting party to meet such evidence.
(c) Relation Back of Amendments. Whenever the claim or
defense asserted in the amended pleading arose out of the
conduct, transaction, or occurrence set forth or attempted to be
set forth in the original pleading, the amendment relates back to
the date of the original pleading. An amendment changing the
party against whom a claim is asserted relates back if the
foregoing provision is satisfied and, within the period provided
by law for commencing the action against him, the party to be
brought in by amendment (1) has received such notice of the
institution of the action that he will not be prejudiced in
maintaining his defense on the merits, and (2) knew or should
have known that, but for a mistake concerning the identity of the
proper party, the action would have been brought against him.
(d) Supplemental Pleadings. Upon motion of a party the court
may, upon reasonable notice and upon such terms as are just,
permit him to serve a supplemental pleading setting forth
transactions or occurrences or events which have happened since
the date of the pleading sought to be supplemented. Permission
may be granted even though the original pleading is defective in
its statement of a claim for relief or defense. If the court
deems it advisable that the adverse party plead to the
supplemental pleading, it shall so order, specifying the time therefor.
(e) Interlineations. No amendments shall be made to any
pleading by erasing or adding words to the original on file,
without first obtaining leave of court.
[Adopted effective July 1, 1967; Amended effective September 1, 2005.]
RULE 16
PRETRIAL PROCEDURE AND FORMULATING ISSUES
(a) Hearing Matters Considered. By order, or on the motion of any
party, the court may in its discretion direct the attorneys for the parties
to appear before it for a conference to consider:
(1) The simplification of the issues;
(2) The necessity or desirability of amendments to the pleadings;
(3) The possibility of obtaining admissions of fact and of documents
which will avoid unnecessary proof;
(4) The limitation of the number of expert witnesses;
(5) Such other matters as may aid in the disposition of the action.
(b) Pretrial Order. The court shall make an order which recites the
action taken at the conference, the amendments allowed to the pleadings,
and the agreements made by the parties as to any of the matters considered,
and which limits the issues for trial to those not disposed of by
admissions or agreements of counsel; and such order when entered controls
the subsequent course of the action, unless modified at the trial to
prevent manifest injustice. The court in its discretion may establish by
rule a pretrial calendar on which actions may be placed for consideration
as above provided and may either confine the calendar to jury actions or to
nonjury actions or extend it to all actions.
RULE 17
PARTIES PLAINTIFF AND DEFENDANT; CAPACITY
(-) Designation of Parties. The party commencing the action shall be
known as the plaintiff, and the opposite party as the defendant.
(a) Real Party in Interest. Every action shall be prosecuted in the
name of the real party in interest. An executor, administrator, guardian,
bailee, trustee of an express trust, a party with whom or in whose name a
contract has been made for the benefit of another, or a party authorized by
statute may sue in his own name without joining with him the party for
whose benefit the action is brought. No action shall be dismissed on the
ground that it is not prosecuted in the name of the real party in interest
until a reasonable time has been allowed after objection for ratification
of commencement of the action by, or joinder or substitution of, the real
party in interest; and such ratification, joinder, or substitution shall
have the same effect as if the action had been commenced in the name of the
real party in interest.
(b) Capacity To Sue or Be Sued. (Reserved.)
(c) Infants, or Incompetent Persons.
(1) Scope. Generally this rule does not affect statutes and rules
concerning the capacity of infants and incompetents to sue or be sued.
(2) Guardian ad Litem for Infant. (Reserved. See RCW 4.08.050.)
(3) Guardian ad Litem for Incompetents. (Reserved. See RCW 4.08.060.)
(d) Actions on Assigned Choses in Action. (Reserved. See RCW 4.08.080.)
(e) Public Corporations.
(1) Actions by. (Reserved. See RCW 4.08.110.)
(2) Actions Against. (Reserved. See RCW 4.08.120.)
(f) Tort Actions Against State. (Reserved. See RCW 4.92.)
RULE 18
JOINDER OF CLAIMS AND REMEDIES
(a) Joinder of Claims. A party asserting a claim to relief as an
original claim, counterclaim, cross claim, or third party claim, may join,
either as independent or as alternate claims, as many claims, legal,
equitable, or maritime, as he has against an opposing party.
(b) Joinder of Remedies; Fraudulent Conveyances. Whenever a claim is
one heretofore cognizable only after another claim has been prosecuted to a
conclusion, the two claims may be joined in a single action; but the court
shall grant relief in that action only in accordance with the relative
substantive rights of the parties. In particular, a plaintiff may state a
claim for money and a claim to have set aside a conveyance fraudulent as to
him, without first having obtained a judgment establishing the claim for
money.
RULE 19
JOINDER OF PERSONS NEEDED FOR JUST ADJUDICATION
(a) Persons To Be Joined if Feasible. A person who is subject to
service of process and whose joinder will not deprive the court of
jurisdiction over the subject matter of the action shall be joined as a
party in the action if (1) in his absence complete relief cannot be
accorded among those already parties, or (2) he claims an interest relating
to the subject of the action and is so situated that the disposition of the
action in his absence may (A) as a practical matter impair or impede his
ability to protect that interest or (B) leave any of the persons already
parties subject to a substantial risk of incurring double, multiple, or
otherwise inconsistent obligations by reason of his claimed interest. If he
has not been so joined, the court shall order that he be made a party. If
he should join as a plaintiff but refuses to do so, he may be made a
defendant, or, in a proper case, an involuntary plaintiff. If the joined
party objects to venue and his joinder would render the venue of the action
improper, he shall be dismissed from the action.
(b) Determination by Court Whenever Joinder Not Feasible. If a person
joinable under (1) or (2) of section (a) hereof cannot be made a party, the
court shall determine whether in equity and good conscience the action
should proceed among the parties before it, or should be dismissed, the
absent person being thus regarded as indispensable. The factors to be
considered by the court include: (1) to what extent a judgment rendered in
the persons absence might be prejudicial to him or those already parties;
(2) the extent to which, by protective provisions in the judgment, by the
shaping of relief, or other measures, the prejudice can be lessened or
avoided; (3) whether a judgment rendered in the persons absence will be
adequate; (4) whether the plaintiff will have an adequate remedy if the
action is dismissed for nonjoinder.
(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for
relief shall state the names, if known to the pleader, of any persons
joinable under (1) or (2) of section (a) hereof who are not joined, and the
reasons why they are not joined.
(d) Exception of Class Actions. This rule is subject to the provisions
of rule 23.
(e) Husband and Wife Must Join--Exceptions. (Reserved. See RCW
4.08.030.)
RULE CR 20
PERMISSIVE JOINDER OF PARTIES
(a) Permissive Joinder. All persons may join in one action as
plaintiffs if they assert any right to relief jointly,
severally, or in the alternative in respect of or arising
out of the same transaction, occurrence, or series of
transactions or occurrences and if any question of law or
fact common to all of these persons will arise in the
action. All persons may be joined in one action as
defendants if there is asserted against them jointly,
severally, or in the alternative, any right to relief in
respect of or arising out of the same transaction,
occurrence, or series of transactions or occurrences and if
any question of law or fact common to all defendants will
arise in the action. A plaintiff or defendant need not be
interested in obtaining or defending against all the relief
demanded. Judgment may be given for one or more of the
plaintiffs according to their respective rights to relief,
and against one or more defendants according to their
respective liabilities.
(b) Separate Trials. The court may make such orders as will
prevent a party from being embarrassed, delayed, or put to
expense by the inclusion of a party against whom he asserts
no claim and who asserts no claim against him, and may order
separate trials or make other orders to prevent delay or prejudice.
(c) When Husband and Wife May Join. (Reserved. See RCW 4.08.040.)
(d) Service on Joint Defendants; Procedure After Service. When
the action is against two or more defendants and the summons
is served on one or more but not on all of them, the
plaintiff may proceed as follows:
(1) If the action is against the defendants jointly
indebted upon a contract, he may proceed against the
defendants served unless the court otherwise directs;
and if he recovers judgment it may be entered against
all the defendants thus jointly indebted so far only as
it may be enforced against the joint property of all
and the separate property of the defendants served.
(2) If the action is against defendants severally liable,
he may proceed against the defendants served in the
same manner as if they were the only defendants.
(3) Though all the defendants may have been served with the
summons, judgment may be taken against any of them
severally, when the plaintiff would be entitled to
judgment against such defendants if the action had been
against them alone.
(e) Procedure To Bind Joint Debtor. (Reserved. See RCW 4.68.)
[Amended effective July 1, 1980.]
RULE 21
MISJOINDER AND NONJOINDER OF PARTIES
Misjoinder of parties is not ground for dismissal of an action. Parties
may be dropped or added by order of the court on motion of any party or of
its own initiative at any stage of the action and on such terms as are
just. Any claim against a party may be severed and proceeded with
separately.
RULE 22
INTERPLEADER
(a) Rule. Persons having claims against the plaintiff may be joined as
defendants and required to interplead when their claims are such that the
plaintiff is or may be exposed to double or multiple liability. It is not
ground for objection to the joinder that the claims of the several
claimants or the titles on which their claims depend do not have a common
origin or are not identical but are adverse to and independent of one
another, or that the plaintiff avers that he is not liable in whole or in
part to any or all of the claimants. A defendant exposed to similar
liability may obtain such interpleader by way of cross claim or
counterclaim. The provisions of this rule supplement and do not in any way
limit the joinder of parties permitted under other rules and statutes.
(b) Statutes. The remedy herein provided is in addition to and in no
way supersedes or limits the remedy provided by RCW 4.08.150 to 4.08.180,
inclusive.
RULE CR 23
CLASS ACTIONS
(a) Prerequisites to a Class Action. One or more members of a class may
sue or be sued as representative parties on behalf of all only if (1) the
class is so numerous that joinder of all members is impracticable, (2)
there are questions of law or fact common to the class, (3) the claims or
defenses of the representative parties are typical of the claims or
defenses of the class, and (4) the representative parties will fairly and
adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a class
action if the prerequisites of section (a) are satisfied, and in addition:
(1) The prosecution of separate actions by or against individual
members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual
members of the class which would establish incompatible standards of
conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the class which
would as a practical matter be dispositive of the interests of the other
members not parties to the adjudications or substantially impair or impede
their ability to protect their interest; or
(2) The party opposing the class has acted or refused to act on grounds
generally applicable to the class, thereby making appropriate final
injunctive relief or corresponding declaratory relief with respect to the
class as a whole; or
(3) The court finds that the questions of law or fact common to the
members of the class predominate over any questions affecting only
individual members, and that a class action is superior to other available
methods for the fair and efficient adjudication of the controversy. The
matters pertinent to the findings include: (A) the interest of members of
the class in individually controlling the prosecution or defense of
separate actions; (B) the extent and nature of any litigation concerning
the controversy already commenced by or against members of the class; (C)
the desirability or undesirability of concentrating the litigation of the
claims in the particular forum; (D) the difficulties likely to be
encountered in the management of a class action.
(c) Determination by Order Whether Class Action To Be Maintained;
Notice; Judgment; Actions Conducted Partially as Class Actions.
(1) As soon as practicable after the commencement of an action brought
as a class action, the court shall determine by order whether it is to be
so maintained. An order under this subsection may be conditional, and may
be altered or amended before the decision on the merits.
(2) In any class action maintained under subsection (b)(3), the court
shall direct to the members of the class the best notice practicable under
the circumstances, including individual notice to all members who can be
identified through reasonable effort. The notice shall advise each member
that (A) the court will exclude him from the class if he so requests by a
specified date; (B) the judgment, whether favorable or not, will include
all members who do not request exclusion; and (C) any member who does not
request exclusion may, if he desires, enter an appearance through his counsel.
(3) The judgment in an action maintained as a class action under
subsection (b)(1) or (b)(2), whether or not favorable to the class, shall
include and describe those whom the court finds to be members of the class.
The judgment in an action maintained as a class action under subsection
(b)(3), whether or not favorable to the class, shall include and specify or
describe those to whom the notice provided in subsection (c)(2) was
directed, and who have not requested exclusion, and whom the court finds to
be members of the class.
(4) When appropriate, (A) an action may be brought or maintained as a
class action with respect to particular issues, or (B) a class may be
divided into subclasses and each subclass treated as a class, and the
provisions of this rule shall then be construed and applied accordingly.
(d) Orders in Conduct of Actions. In the conduct of actions to which
this rule applies, the court may make appropriate orders: (1) determining
the course of proceedings or prescribing measures to prevent undue
repetition or complication in the presentation of evidence or argument; (2)
requiring, for the protection of the members of the class or otherwise for
the fair conduct of the action, that notice be given in such manner as the
court may direct to some or all of the members of any step in the action,
or of the proposed extent of the judgment, or of the opportunity of members
to signify whether they consider the representation fair and adequate, to
intervene and present claims or defenses, or otherwise to come into the
action; (3) imposing conditions on the representative parties or on
intervenors; (4) requiring that the pleadings be amended to eliminate
therefrom allegations as to representation of absent persons, and that the
action proceed accordingly; (5) dealing with similar procedural matters.
The orders may be combined with an order under rule 16, and may be altered
or amended as may be desirable from time to time.
(e) Dismissal or Compromise. A class action shall not be dismissed or
compromised without the approval of the court, and notice of the proposed
dismissal or compromise shall be given to all members of the class in such
manner as the court directs.
(f) Disposition of Residual Funds.
(1) "Residual Funds" are funds that remain after the payment of all
approved class member claims, expenses, litigation costs, attorneys' fees,
and other court-approved disbursements to implement the relief granted.
Nothing in this rule is intended to limit the parties to a class action
from suggesting, or the trial court from approving, a settlement that does
not create residual funds.
(2) Any order entering a judgment or approving a proposed compromise of
a class action certified under this rule that establishes a process for
identifying and compensating members of the class shall provide for the
disbursement of residual funds. In matters where the claims process has
been exhausted and residual funds remain, not less than twenty-five percent
(25%) of the residual funds shall be disbursed to the Legal Foundation of
Washington to support activities and programs that promote access to the
civil justice system for low income residents of Washington State. The
court may disburse the balance of any residual funds beyond the minimum
percentage to the Legal Foundation of Washington or to any other entity for
purposes that have a direct or indirect relationship to the objectives of
the underlying litigation or otherwise promote the substantive or
procedural interests of members of the certified class.
[Adopted effective July 1, 1967; amended effective January 3, 2006.]
RULE 23.1
DERIVATIVE ACTIONS BY SHAREHOLDERS
In a derivative action brought by one or more shareholders or members
to enforce a right of a corporation or of an unincorporated association,
the corporation or association having failed to enforce a right which may
properly be asserted by it, the complaint shall be verified and shall
allege (a) that the plaintiff was a shareholder or member at the time of
the transaction of which he complains or that his share or membership
thereafter devolved on him by operation of law, and (b) that the action is
not a collusive one to confer jurisdiction on a court of this state which
it would not otherwise have. The complaint shall also allege with
particularity the efforts, if any, made by the plaintiff to obtain the
action he desires from the directors or comparable authority and, if
necessary, from the shareholders or members, and the reasons for his
failure to obtain the action or for not making the effort. The derivative
action may not be maintained if it appears that the plaintiff does not
fairly and adequately represent the interests of the shareholders or
members similarly situated in enforcing the right of the corporation or
association. The action shall not be dismissed or compromised without the
approval of the court, and notice of the proposed dismissal or compromise
shall be given to shareholders or members in such manner as the court
directs.
RULE 23.2
ACTIONS RELATING TO UNINCORPORATED ASSOCIATIONS
An action brought by or against the members of an unincorporated
association as a class by naming certain members as representative parties
may be maintained only if it appears that the representative parties will
fairly and adequately protect the interests of the association and its
members. In the conduct of the action the court may make appropriate orders
corresponding with those described in rule 23(d), and the procedure for
dismissal or compromise of the action shall correspond with that provided
in rule 23(e).
RULE 24
INTERVENTION
(a) Intervention of Right. Upon timely application anyone shall be
permitted to intervene in an action: (1) when a statute confers an
unconditional right to intervene; or (2) when the applicant claims an
interest relating to the property or transaction which is the subject of
the action and he is so situated that the disposition of the action may as
a practical matter impair or impede his ability to protect that interest,
unless the applicants interest is adequately represented by existing
parties.
(b) Permissive Intervention. Upon timely application, anyone may be
permitted to intervene in an action:
(1) When a statute confers a conditional right to intervene; or
(2) When an applicants claim or defense and the main action have a
question of law or fact in common. When a party to an action relies for
ground of claim or defense upon any statute or executive order administered
by a federal or state governmental officer or agency or upon any
regulation, order, requirements, or agreement issued or made pursuant to
the statute or executive order, the officer or agency upon timely
application may be permitted to intervene in the action. In exercising its
discretion the court shall consider whether the intervention will unduly
delay or prejudice the adjudication of the rights of the original parties.
(c) Procedure. A person desiring to intervene shall serve a motion to
intervene upon all the parties as provided in rule 5. The motion shall
state the grounds therefor and shall be accompanied by a pleading setting
forth the claim or defense for which intervention is sought.
RULE 25
SUBSTITUTION OF PARTIES
(a) Death.
(1) Procedure. If a party dies and the claim is not thereby
extinguished, the court may order substitution of the proper parties. The
motion for substitution may be made by the successors or representatives of
the deceased party or by any party and, together with the notice of
hearing, shall be served on the parties as provided by rule 5 for service
of notices, and upon persons not parties in the manner provided by statute
or by rule for the service of a summons. If substitution is not made within
the time authorized by law, the action may be dismissed as to the deceased
party.
(2) Partial Abatement. In the event of the death of one or more of the
plaintiffs or of one or more of the defendants in an action in which the
right sought to be enforced survives only to the surviving plaintiffs or
only against the surviving defendants, the action does not abate. The death
shall be suggested upon the record and the action shall proceed in favor of
or against the surviving parties.
(b) Incompetency. If a party becomes incompetent, the court upon motion
served as provided in section (a) of this rule may allow the action to be
continued by or against his representative.
(c) Transfer of Interest. In case of any transfer of interest, the
action may be continued by or against the original party unless the court
upon motion directs the person to whom the interest is transferred to be
substituted in the action or joined with the original party. Service of the
motion shall be made as provided in section (a) of this rule.
(d) Public Offices; Death or Separation From Office. (Reserved.)
RULE CR 26
GENERAL PROVISIONS GOVERNING DISCOVERY
(a) Discovery Methods. Parties may obtain discovery by one or more of the
following methods: depositions upon oral examination or written questions;
written interrogatories; production of documents or things or permission
to enter upon land or other property, for inspection and other purposes;
physical and mental examinations; and requests for admission.
(b) Discovery Scope and Limits. Unless otherwise limited by order of the court
in accordance with these rules, the scope of discovery is as follows:
(1) In General. Parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in the
pending action, whether it relates to the claim or defense of the
party seeking discovery or to the claim or defense of any other
party, including the existence, description, nature, custody,
condition and location of any books, documents, or other tangible
things and the identity and location of persons having knowledge of
any discoverable matter. It is not ground for objection that the
information sought will be inadmissible at the trial if the
information sought appears reasonably calculated to lead to the
discovery of admissible evidence.
The frequency or extent of use of the discovery methods set forth in
section (a) shall be limited by the court if it determines that:
(A) the discovery sought is unreasonably cumulative or duplicative,
or is obtainable from some other source that is more convenient,
less burdensome, or less expensive;
(B) the party seeking discovery has had ample opportunity by
discovery in the action to obtain the information sought; or
(C) the discovery is unduly burdensome or expensive, taking into
account the needs of the case, the amount in controversy,
limitations on the parties resources, and the importance of the
issues at stake in the litigation. The court may act upon its
own initiative after reasonable notice or pursuant to a motion
under section (c).
(2) Insurance Agreements. A party may obtain discovery and production of:
(i) the existence and contents of any insurance agreement under which
any person carrying on an insurance business may be liable to satisfy
part or all of a judgment which may be entered in the action or to
indemnify or reimburse for payments made to satisfy the judgment; and
(ii) any documents affecting coverage (such as denying coverage,
extending coverage, or reserving rights) from or on behalf of such
person to the covered person or the covered person's representative.
Information concerning the insurance agreement is not by reason of
disclosure admissible in evidence at trial. For purposes of this
section, an application for insurance shall not be treated as part of
an insurance agreement.
(3) Structured Settlements and Awards. In a case where a settlement or
final award provides for all or part of the recovery to be paid in
the future, a party entitled to such payments may obtain disclosure
of the actual cost to the defendant of making such payments. This
disclosure may be obtained during settlement negotiations upon
written demand by a party entitled to such payments. If disclosure of
cost is demanded, the defendant may withdraw the offer of a
structured settlement at any time before the offer is accepted.
(4) Trial Preparation: Materials. Subject to the provisions of subsection
(b)(5) of this rule, a party may obtain discovery of documents and
tangible things otherwise discoverable under subsection (b)(1) of
this rule and prepared in anticipation of litigation or for trial by
or for another party or by or for that other party's representative
(including his attorney, consultant, surety, indemnitor, insurer, or
agent) only upon a showing that the party seeking discovery has
substantial need of the materials in the preparation of his case and
that he is unable without undue hardship to obtain the substantial
equivalent of the materials by other means. In ordering discovery of
such materials when the required showing has been made, the court
shall protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of an attorney or other
representative of a party concerning the litigation.
A party may obtain without the required showing a statement
concerning the action or its subject matter previously made by that
party. Upon request, a person not a party may obtain without the
required showing a statement concerning the action or its subject
matter previously made by that person. If the request is refused, the
person may move for a court order. The provisions of rule 37(a)(4)
apply to the award of expenses incurred in relation to the motion.
For purposes of this section, a statement previously made is:
(A) a written statement signed or otherwise adopted or approved by
the person making it; or
(B) a stenographic, mechanical, electrical, or other recording, or
a transcription thereof, which is substantially verbatim recital
of an oral statement by the person making it and
contemporaneously recorded.
(5) Trial Preparation: Experts. Discovery of facts known and opinions
held by experts, otherwise discoverable under the provisions of
subsection (b)(1) of this rule and acquired or developed in
anticipation of litigation or for trial, may be obtained only as follows:
(A) (i) A party may through interrogatories require any other party
to identify each person whom the other party expects to call as
an expert witness at trial, to state the subject matter on which
the expert is expected to testify, to state the substance of the
facts and opinions to which the expert is expected to testify
and a summary of the grounds for each opinion, and to state such
other information about the expert as may be discoverable under
these rules. (ii) A party may, subject to the provisions of this
rule and of rules 30 and 31, depose each person whom any other
party expects to call as an expert witness at trial.
(B) A party may discover facts known or opinions held by an expert
who is not expected to be called as a witness at trial, only as
provided in rule 35(b) or upon a showing of exceptional
circumstances under which it is impracticable for the party
seeking discovery to obtain facts or opinions on the same
subject by other means.
(C) Unless manifest injustice would result, (i) the court shall
require that the party seeking discovery pay the expert a
reasonable fee for time spent in responding to discovery under
subsections (b)(5)(A)(ii) and (b)(5)(B) of this rule; and (ii)
with respect to discovery obtained under subsection
(b)(5)(A)(ii) of this rule the court may require, and with
respect to discovery obtained under subsection (b)(5)(B) of this
rule the court shall require the party seeking discovery to pay
the other party a fair portion of the fees and expenses
reasonably incurred by the latter party in obtaining facts and
opinions from the expert.
(6) Claims of Privilege or Protection as Trial-Preparation Materials
for Information Produced. If information produced in discovery is
subject to a claim of privilege or of protection as trial-preparation
material, the party making the claim may notify any party that
received the information of the claim and the basis for it. After
being notified, a party must promptly return, sequester, or destroy
the specified information and any copies it has; must not use or
disclose the information until the claim is resolved; and must take
reasonable steps to retrieve the information if the party disclosed
it before being notified. Either party may promptly present the
information in camera to the court for a determination of the claim.
The producing party must preserve the information until the claim is resolved.
(7) Discovery From Treating Health Care Providers. The party seeking
discovery from a treating health care provider shall pay a reasonable
fee for the reasonable time spent in responding to the discovery. If
no agreement for the amount of the fee is reached in advance, absent
an order to the contrary under section (c), the discovery shall occur
and the health care provider or any party may later seek an order
setting the amount of the fee to be paid by the party who sought the
discovery. This subsection shall not apply to the provision of
records under RCW 70.02 or any similar statute, nor to discovery
authorized under any rules for criminal matters.
(8) Treaties or Conventions. If the methods of discovery provided by
applicable treaty or convention are inadequate or inequitable and
additional discovery is not prohibited by the treaty or convention, a
party may employ the discovery methods described in these rules to
supplement the discovery method provided by such treaty or convention.
(c) Protective Orders. Upon motion by a party or by the person from whom
discovery is sought, and for good cause shown, the court in which the
action is pending or alternatively, on matters relating to a deposition,
the court in the county where the deposition is to be taken may make any
order which justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including one or
more of the following:
(1) that the discovery not be had;
(2) that the discovery may be had only on specified terms and conditions,
including a designation of the time or place;
(3) that the discovery may be had only by a method of discovery other
than that selected by the party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of the
discovery be limited to certain matters;
(5) that discovery be conducted with no one present except persons
designated by the court;
(6) that the contents of a deposition not be disclosed or be disclosed
only in a designated way;
(7) that a trade secret or other confidential research, development, or
commercial information not be disclosed or be disclosed only in a
designated way;
(8) that the parties simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as directed by
the court.
If the motion for a protective order is denied in whole or in part, the court
may, on such terms and conditions as are just, order that any party or person
provide or permit discovery. The provisions of rule 37(a)(4) apply to the award
of expenses incurred in relation to the motion.
(d) Sequence and Timing of Discovery. Unless the court upon motion, for the
convenience of parties and witnesses and in the interests of justice,
orders otherwise, methods of discovery may be used in any sequence and the
fact that a party is conducting discovery, whether by deposition or
otherwise, shall not operate to delay any other party's discovery.
(e) Supplementation of Responses. A party who has responded to a request for
discovery with a response that was complete when made is under no duty to
supplement his response to include information thereafter acquired, except
as follows:
(1) A party is under a duty seasonably to supplement his response with
respect to any question directly addressed to:
(A) the identity and location of persons having knowledge of
discoverable matters; and
(B) the identity of each person expected to be called as an expert
witness at trial, the subject matter on which he is expected to
testify, and the substance of his testimony.
(2) A party is under a duty seasonably to amend a prior response if he
obtains information upon the basis of which:
(A) he knows that the response was incorrect when made; or
(B) he knows that the response though correct when made is no longer
true and the circumstances are such that a failure to amend the
response is in substance a knowing concealment.
(3) A duty to supplement responses may be imposed by order of the court,
agreement of the parties, or at any time prior to trial through new
requests for supplementation of prior responses.
(4) Failure to seasonably supplement in accordance with this rule will
subject the party to such terms and conditions as the trial court may
deem appropriate.
(f) Discovery Conference. At any time after commencement of an action the
court may direct the attorneys for the parties to appear before it for a
conference on the subject of discovery. The court shall do so upon motion
by the attorney for any party if the motion includes:
(1) A statement of the issues as they then appear;
(2) A proposed plan and schedule of discovery;
(3) Any limitations proposed to be placed on discovery;
(4) Any other proposed orders with respect to discovery; and
(5) A statement showing that the attorney making the motion has made a
reasonable effort to reach agreement with opposing attorneys on the
matters set forth in the motion.
Each party and his attorney are under a duty to participate in good faith in
the framing of a discovery plan if a plan is proposed by the attorney for any party.
Notice of the motion shall be served on all parties. Objections or additions to
matters set forth in the motion shall be served not later than 10 days after
service of the motion.
Following the discovery conference, the court shall enter an order tentatively
identifying the issues for discovery purposes, establishing a plan and schedule
for discovery, setting limitations on discovery, if any, and determining such
other matters, including the allocation of expenses, as are necessary for the
proper management of discovery in the action. An order may be altered or
amended whenever justice so requires.
Subject to the right of a party who properly moves for a discovery conference
to prompt convening of the conference, the court may combine the discovery
conference with a pretrial conference authorized by rule 16.
(g) Signing of Discovery Requests, Responses, and Objections. Every request
for discovery or response or objection thereto made by a party represented
by an attorney shall be signed by at least one attorney of record in his
individual name, whose address shall be stated. A party who is not
represented by an attorney shall sign the request, response, or objection
and state his address. The signature of the attorney or party constitutes
a certification that he has read the request, response, or objection, and
that to the best of his knowledge, information, and belief formed after a
reasonable inquiry it is:
(1) consistent with these rules and warranted by existing law or a good
faith argument for the extension, modification, or reversal of
existing law;
(2) not interposed for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of
litigation; and
(3) not unreasonable or unduly burdensome or expensive, given the needs
of the case, the discovery already had in the case, the amount in
controversy, and the importance of the issues at stake in the
litigation. If a request, response, or objection is not signed, it
shall be stricken unless it is signed promptly after the omission is
called to the attention of the party making the request, response, or
objection and a party shall not be obligated to take any action with
respect to it until it is signed.
If a certification is made in violation of the rule, the court, upon motion or
upon its own initiative, shall impose upon the person who made the
certification, the party on whose behalf the request, response, or objection is
made, or both, an appropriate sanction, which may include an order to pay the
amount of the reasonable expenses incurred because of the violation, including
a reasonable attorney fee.
(h) Use of Discovery Materials. A party filing discovery materials on order of
the court or for use in a proceeding or trial shall file only those
portions upon which the party relies and may file a copy in lieu of the original.
(i) Motions; Conference of Counsel Required. The court will not entertain any
motion or objection with respect to rules 26 through 37 unless counsel
have conferred with respect to the motion or objection. Counsel for the
moving or objecting party shall arrange for a mutually convenient
conference in person or by telephone. If the court finds that counsel for
any party, upon whom a motion or objection in respect to matters covered
by such rules has been served, has willfully refused or failed to confer
in good faith, the court may apply the sanctions provided under rule
37(b). Any motion seeking an order to compel discovery or obtain
protection shall include counsels certification that the conference
requirements of this rule have been met.
(j) Access to Discovery Materials Under RCW 4.24.
(1) In General. For purposes of this rule, "discovery materials" means
depositions, answers to interrogatories, documents or electronic data
produced and physically exchanged in response to requests for
production, and admissions pursuant to rules 26-37.
(2) Motion. The motion for access to discovery materials under the
provisions of RCW 4.24 shall be filed in the court that heard the
action in which the discovery took place. The person seeking access
shall serve a copy of the motion on every party to the action, and on
nonparties if ordered by the court.
(3) Decision. The provisions of RCW 4.24 shall determine whether the
motion for access to discovery materials should be granted.
[Amended effective July 1, 1972; September 1, 1985; September 1, 1989; December
28, 1990; September 1, 1992; September 17, 1993; September 1, 1995, January 12, 2010.]
RULE CR 27
PERPETUATION OF TESTIMONY
(a) Perpetuation Before Action.
(1) Petition. A person who desires to perpetuate his own testimony or
that of another person regarding any matter that may be cognizable in any
superior court may file a verified petition in the superior court in the
county of the residence of any expected adverse party. The petition shall
be entitled in the name of the petitioner and shall show:
(A) that the petitioner expects to be a party to an action cognizable
in a superior court but is presently unable to bring it or cause it to be brought;
(B) the subject matter of the expected action and his interest therein;
(C) the facts which he desires to establish by the proposed testimony
and his reasons for desiring to perpetuate it;
(D) the names or a description of the persons he expects will be
adverse parties and their addresses so far as known; and
(E) the names and addresses of the persons to be examined and the
substance of the testimony which he expects to elicit from each, and shall
ask for an order authorizing the petitioner to take the depositions of the
persons to be examined named in the petition, for the purpose of
perpetuating their testimony.
(2) Notice and Service. The petitioner shall thereafter serve a notice
upon each person named in the petition as an expected adverse party,
together with a copy of the petition, stating that the petitioner will
apply to the court, at a time and place named therein, for the order
described in the petition. At least 20 days before the date of hearing the
notice shall be served in the manner provided by law for service of
summons; but if such service cannot with due diligence be made upon any
expected adverse party named in the petition, the court may make such order
as is just for service by publication or otherwise, and shall appoint, for
persons not served personally in the manner provided by law, an attorney
who shall represent them and, in case they are not otherwise represented,
shall cross-examine the deponent. If any expected adverse party is a minor
or incompetent, the court shall make such order as deemed appropriate for
the protection of the minor or incompetent as provided in RCW 4.08.050 and 4.08.060.
(3) Order and Examination. If the court is satisfied that the
perpetuation of the testimony may prevent a failure or delay of justice, it
shall make an order designating or describing the persons whose depositions
may be taken and specifying the subject matter of the examination and
whether the depositions shall be taken upon oral examination or written
interrogatories. The depositions may then be taken in accordance with these
rules; and the court may make orders of the character provided for by rules
34 and 35. For the purpose of applying these rules to depositions for
perpetuating testimony, each reference therein to the court in which the
action is pending shall be deemed to refer to the court in which the
petition for such deposition was filed.
(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) Perpetuation Pending Appeal. If an appeal has been taken from a
judgment of a superior court or before the taking of an appeal if the time
therefor has not expired, the superior court in which the judgment was
rendered may allow the taking of the depositions of witnesses to perpetuate
their testimony for use in the event of further proceedings in the superior
court. In such case the party who desires to perpetuate the testimony may
make a motion in the superior court for leave to take the depositions, upon
the same notice and service thereof as if the action was pending in the
superior court. The motion shall show (1) the names and addresses of the
persons to be examined and the substance of the testimony which he expects
to elicit from each; (2) the reasons for perpetuating their testimony. If
the court finds that the perpetuation of the testimony is proper to avoid a
failure or delay of justice, it may make an order allowing the depositions
to be taken and may make orders of the character provided for by rules 34
and 35, and thereupon the depositions may be taken and used in the same
manner and under the same conditions as are prescribed in these rules for
depositions taken in actions pending in the superior court.
(c) Perpetuation by Action. This rule does not limit the power of a
court to entertain an action to perpetuate testimony.
[Adopted effective July 1, 1967; Amended effective September 1, 2005.]
RULE CR 28
PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN
(-) Within the State. Depositions within the state may be taken before
the following officers:
(1) Court Commissioners. (Reserved. See RCW 2.24.040(9) and (10).)
(2) Superior Courts. (Reserved. See RCW 2.28.010(7).)
(3) Judicial Officers. (Reserved. See RCW 2.28.060.)
(4) Judges of Supreme and Superior Courts. (Reserved. See RCW 2.28.080(3).)
(5) Inferior Judicial Officers. (Reserved. See RCW 2.28.090.)
(6) Notaries Public. (Reserved. See RCW 5.28.010 and 42.44.010.)
(7) Special Commissions. (Reserved. See RCW 11.20.030.)
(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) In Foreign Countries. In a foreign country, depositions may be
taken (1) on notice before a person authorized to administer oaths in the
place in which the examination is held, either by the law thereof or by the
law of the United States, or (2) before a person commissioned by the court,
and the person so commissioned shall have the power by virtue of his
commission to administer any necessary oath and take testimony, or (3)
pursuant to a letter rogatory or a letter of request, or (4) pursuant to
the means and terms of any applicable treaty or convention. A commission, a
letter rogatory, or a letter of request shall be issued on application and
notice, and on terms that are just and appropriate. It is not requisite to
the issuance of a commission, a letter rogatory, or a letter of request
that the taking of the deposition in any other manner is impracticable or
inconvenient; and a commission, a letter rogatory, and a letter of request
may all be issued in proper cases. A notice or commission may designate the
person before whom the deposition is to be taken either by name or by
descriptive title. A letter rogatory may be addressed "To the Appropriate
Authority in (here name the country)." A letter of request or any other
device permitted by any applicable treaty or convention shall be styled in
the form prescribed by that treaty or convention. Evidence obtained in
response to a letter rogatory or a letter of request need not be excluded
merely for the reason that it is not a verbatim transcript or that the
testimony was not taken under oath or for any similar departure from the
requirements for depositions taken within the United States under these rules.
(c) Disqualification for Interest. No deposition shall be taken before
a person who is a relative or employee or attorney or counsel of any of the
parties, or is a relative or employee of such attorney or counsel, or is
financially interested in the action.
(d) Equal Terms Required. Any arrangement concerning court
reporting services or fees in a case shall be offered to all
parties on equal terms. This rule applies to any arrangement or
agreement between the person before whom a deposition is taken or
a court reporting firm, consortium or other organization
providing a court reporter, and any party or any person arranging
or paying for court reporting services in the case, including any
attorney, law firm, person or entity with a financial interest in
the outcome of the litigation, or person or entity paying for
court reporting services in the case.
[Amended effective July 1, 1972; amended effective September 1, 2001; September 1, 2005.]
RULE 29
STIPULATIONS REGARDING DISCOVERY PROCEDURE
Unless the court orders otherwise, the parties may by written
stipulation (1) provide that depositions may be taken before any person, at
any time or place, upon any notice and in any manner and when so taken may
be used like other depositions, and (2) modify the procedures provided by
these rules for other methods of discovery.
RULE CR 30
DEPOSITIONS UPON ORAL EXAMINATION
(a) When Depositions May Be Taken. After the summons and a copy of the
complaint are served, or the complaint is filed, whichever shall first
occur, any party may take the testimony of any person, including a party,
by deposition upon oral examination. Leave of court, granted with or
without notice, must be obtained only if the plaintiff seeks to take a
deposition prior to the expiration of 30 days after service of the summons
and complaint upon any defendant or service made under rule 4(e), except
that leave is not required (1) if a defendant has served a notice of taking
deposition or otherwise sought discovery, or (2) if special notice is given
as provided in subsection (b)(2) of this rule. The attendance of witnesses
may be compelled by subpoena as provided in rule 45. The deposition of a
person confined in prison may be taken only by leave of court on such terms
as the court prescribes.
(b) Notice of Examination: General Requirements; Special Notice;
Nonstenographic Recording; Production of Documents and Things; Deposition
of Organization; Video Tape Recording.
(1) A party desiring to take the deposition of any person upon oral
examination shall give reasonable notice in writing of not less than 5 days
(exclusive of the day of service, Saturdays, Sundays and court holidays) to
every other party to the action and to the deponent, if not a party or a
managing agent of a party. Notice to a deponent who is not a party or a
managing agent of a party may be given by mail or by any means reasonably
likely to provide actual notice. The notice shall state the time and place
for taking the deposition and the name and address of each person to be
examined, if known, and, if the name is not known, a general description
sufficient to identify him or the particular class or group to which he
belongs. If a subpoena duces tecum is to be served on the person to be
examined, the designation of the materials to be produced as set forth in
the subpoena shall be attached to or included in the notice. A party
seeking to compel the attendance of a deponent who is not a party or a
managing agent of a party must serve a subpoena on that deponent in
accordance with rule 45. Failure to give 5 days notice to a deponent who is
not a party or a managing agent of a party may be grounds for the
imposition of sanctions in favor of the deponent, but shall not constitute
grounds for quashing the subpoena.
(2) Leave of court is not required for the taking of a deposition by
plaintiff if the notice (A) states that the person to be examined is about
to go out of the state and will be unavailable for examination unless his
deposition is taken before expiration of the 30-day period, and (B) sets
forth facts to support the statement. The plaintiff's attorney shall sign
the notice, and his signature constitutes a certification by him that to
the best of his knowledge, information, and belief the statement and
supporting facts are true. The sanctions provided by rule 11 are applicable
to the certification.
If a party shows that when he was served with notice under this
subsection (b)(2) he was unable through the exercise of diligence to obtain
counsel to represent him at the taking of the deposition, the deposition
may not be used against him.
(3) The court may for cause shown enlarge or shorten the time for
taking the deposition.
(4) The parties may stipulate in writing or the court may upon motion
order that the testimony at a deposition be recorded by other than
stenographic means. The stipulation or the order shall designate the person
before whom the deposition shall be taken, the manner of recording,
preserving, and filing the deposition, and may include other provisions to
assure that the recorded testimony will be accurate and trustworthy. A
party may arrange to have a stenographic transcription made at his own
expense. Any objections under section (c), any changes made by the witness,
his signature identifying the deposition as his own or the statement of the
officer that is required if the witness does not sign, as provided in
section (e), and the certification of the officer required by section
(f)shall be set forth in a writing to accompany a deposition recorded by
nonstenographic means.
(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.
(6) A party may in his notice and in a subpoena name as the deponent a
public or private corporation or a partnership or association or
governmental agency and designate with reasonable particularity the matters
on which examination is requested. In that event the organization so named
shall designate one or more officers, directors, or managing agents, or
other persons who consent to testify on its behalf, and may set forth, for
each person designated, the matters known on which he will testify. A
subpoena shall advise a nonparty organization of its duty to make such a
designation. The persons so designated shall testify as to the matters
known or reasonably available to the organization. This subsection (b)(6)
does not preclude taking a deposition by any other procedure authorized in
these rules.
(7) The parties may stipulate in writing or the court may upon motion
order that a deposition be taken by telephone or by other electronic means.
For the purposes of this rule and rules 28(a), 37(a)(1), 37(b)(1), and
45(d), a deposition taken by telephone or by other electronic means is
taken at the place where the deponent is to answer questions propounded to him.
(8) Videotaping of depositions.
(A) Any party may videotape the deposition of any party or witness
without leave of court provided that written notice is served on all
parties not less than 20 days before the deposition date, and specifically
states that the deposition will be recorded on videotape. Failure to so
state shall preclude the use of videotape equipment at the deposition,
absent agreement of the parties or court order.
(B) No party may videotape a deposition within 120 days of the later of
the date of filing or service of the lawsuit, absent agreement of the
parties or court order.
(C) On motion of a party made prior to the deposition, the court shall
order that a videotape deposition be postponed or begun subject to being
continued, on such terms as are just, if the court finds that the
deposition is to be taken before the moving party has had an adequate
opportunity to prepare, by discovery deposition of the deponent or other
means, for cross examination of the deponent.
(D) Unless otherwise stipulated to by the parties, the expense of
videotaping shall be borne by the noting party and shall not be taxed as
costs. Any party, at that party's expense, may obtain a copy of the videotape.
(E) A stenographic record of the deposition shall be made
simultaneously with the videotape at the expense of the noting party.
(F) The area to be used for videotaping testimony shall be suitable in
size, have adequate lighting and be reasonably quiet. The physical
arrangements shall be fair to all parties. The deposition shall begin by a
statement on the record of: (a) the operators name, address and telephone
number, (b) the name and address of the operators employer, (c) the date,
time and place of the deposition, (d) the caption of the case, (e) the name
of the deponent, and (f) the name of the party giving notice of the
deposition. The officer before whom the deposition is taken shall be
identified and swear the deponent on camera. At the conclusion of the
deposition, it shall be stated on the record that the deposition is
concluded. When more than one tape is used, the operator shall announce on
camera the end of each tape and the beginning of the next tape.
(G) Absent agreement of the parties or court order, if all or any part
of the videotape will be offered at trial, the party offering it must order
the stenographic record to be fully transcribed at that party's expense. A
party intending to offer a videotaped recording of a deposition in evidence
shall notify all parties in writing of that intent and the parts of the
deposition to be offered within sufficient time for a stenographic
transcript to be prepared, and for objections to be made and ruled on
before the trial or hearing. Objections to all or part of the deposition
shall be made in writing within sufficient time to allow for rulings on
them and for editing of the tape. The court shall permit further
designations of testimony and objections as fairness may require. In
excluding objectionable testimony or comments or objections of counsel, the
court may order that an edited copy of the videotape be made, or that the
person playing the tape at trial suppress the objectionable portions of the
tape. In no event, however, shall the original videotape be affected by any
editing process.
(H) After the deposition has been taken, the operator of the videotape
equipment shall attach to the videotape a certificate that the recording is
a correct and complete record of the testimony by the deponent. Unless
otherwise agreed by the parties on the record, the operator shall retain
custody of the original videotape. The custodian shall store it under
conditions that will protect it against loss or destruction or tampering,
and shall preserve as far as practicable the quality of the tape and the
technical integrity of the testimony and images it contains. The custodian
of the original videotape shall retain custody of it until 6 months after
final disposition of the action, unless the court, on motion of any party
and for good cause shown, orders that the tape be preserved for a longer period.
(I) The use of videotaped depositions shall be subject to rule 32.
(c) Examination and Cross Examination; Record of Examination; Oath;
Objections. Examination and cross examination of witnesses may proceed as
permitted at the trial under the provisions of the Washington Rules of
Evidence (ER). The officer before whom the deposition is to be taken shall
put the witness on oath and shall personally, or by someone acting under
the officer's direction and in the officer's presence, record the testimony
of the witness. The testimony shall be taken stenographically or recorded
by any other means ordered in accordance with subsection (b)(4) of this
rule. If requested by one of the parties, the testimony shall be transcribed.
All objections made at the time of the examination to the
qualifications of the officer taking the deposition, or to the manner of
taking it, or to the evidence presented, or to the conduct of any party,
and any other objection to the proceedings, shall be noted by the officer
upon the deposition. Evidence objected to shall be taken subject to the
objections. A judge of the superior court, or a special master if one is
appointed pursuant to rule 53.3, may make telephone rulings on objections
made during depositions. In lieu of participating in the oral examination,
parties may serve written questions in a sealed envelope on the party
taking the deposition and he shall transmit them to the officer, who shall
propound them to the witness and record the answers verbatim.
(d) Motion To Terminate or Limit Examination. At any time during the
taking of the deposition, on motion of a party or of the deponent and upon
a showing that the examination is being conducted in bad faith or in such
manner as unreasonably to annoy, embarrass, or oppress the deponent or
party, the court in which the action is pending or the court in the county
where the deposition is being taken may order the officer conducting the
examination to cease forthwith from taking the deposition, or may limit the
scope and manner of the taking of the deposition as provided in rule 26(c).
If the order made terminates the examination, it shall be resumed
thereafter only upon the order of the court in which the action is pending.
Upon demand of the objecting party or deponent, the taking of the
deposition shall be suspended for the time necessary to make a motion for
an order. The provisions of rule 37(a)(4) apply to the award of expenses
incurred in relation to the motion.
(e) Submission to Witness; Changes; Signing. When the testimony is
fully transcribed the deposition shall be submitted to the witness for
examination and shall be read to or by the witness, unless such examination
and reading are waived by the witness and by the parties. Any changes in
form or substance which the witness desires to make shall be entered upon
the deposition by the officer with a statement of the reasons given by the
witness for making them. The deposition shall then be signed by the
witness, unless the parties by stipulation waive the signing or the witness
is ill or cannot be found or refuses to sign. If the deposition is not
signed by the witness within 30 days of its submission to the witness, the
officer shall sign it and state on the record the fact of the waiver or of
the illness or absence of the witness or the fact of the refusal to sign
together with the reason, if any, given therefor; and the deposition may
then be used as fully as though signed unless on a motion to suppress under
rule 32(d)(4) the court holds that the reasons given for the refusal to
sign require rejection of the deposition in whole or in part.
(f) Certification and Service by Officer; Exhibits; Copies; Notice.
(1) The officer shall certify on the deposition transcript that the
witness was duly sworn and that the transcript is a true record of the
testimony given by the witness. The officer shall then secure the
transcript in an envelope endorsed with the title of the action and marked
"Deposition of (here insert name of witness)" and shall promptly serve it
on the person who ordered the transcript, unless the court orders
otherwise. Documents and things produced for inspection during the
examination of the witness, shall, upon the request of a party, be marked
for identification and annexed to and returned with the deposition, and may
be inspected and copied by any party, except that (A) the person producing
the materials may substitute copies to be marked for identification, if the
person affords to all parties fair opportunity to verify the copies by
comparison with the originals, and (B) if the person producing the
materials requests their return, the officer shall mark them, give each
party an opportunity to inspect and copy them, and return them to the
person producing them, and the materials may then be used in the same
manner as if annexed to and returned with the deposition. Any party may
move for an order that the original be annexed to the deposition transcript
and filed with the court, pending final disposition of the case.
(2) Upon payment of reasonable charges therefor, the officer shall
furnish a copy of the deposition transcript to any party or the deponent.
(3) The officer serving or filing the deposition transcript shall give
prompt notice of such action to all parties and file such notice with the
clerk of the court.
(g) Failure To Attend or To Serve Subpoena; Expenses.
(1) If the party giving the notice of the taking of a deposition fails
to attend and proceed therewith and another party attends in person or by
attorney pursuant to the notice, the court may order the party giving the
notice to pay to such other party the reasonable expenses incurred by him
and his attorney in attending, including reasonable attorney fees.
(2) If the party giving the notice of the taking of a deposition of a
witness fails to serve a subpoena upon him and the witness because of such
failure does not attend, and if another party attends in person or by
attorney because he expects the deposition of that witness to be taken, the
court may order the party giving the notice to pay to such other party the
reasonable expenses incurred by him and his attorney in attending,
including reasonable attorney fees.
(h) Conduct of Depositions. The following shall govern deposition practice:
(1) Conduct of Examining Counsel. Examining counsel will refrain from
asking questions he or she knows to be beyond the legitimate scope of
discovery, and from undue repetition.
(2) Objections. Only objections which are not reserved for time of
trial by these rules or which are based on privileges or raised to
questions seeking information beyond the scope of discovery may be made
during the course of the deposition. All objections shall be concise and
must not suggest or coach answers from the deponent. Argumentative
interruptions by counsel shall not be permitted.
(3) Instructions Not To Answer. Instructions to the deponent not to
answer questions are improper, except when based upon privilege or pursuant
to rule 30(d). When a privilege is claimed the deponent shall nevertheless
answer questions related to the existence, extent, or waiver of the
privilege, such as the date of communication, identity of the declarant,
and in whose presence the statement was made.
(4) Responsiveness. Witnesses shall be instructed to answer all
questions directly and without evasion to the extent of their testimonial
knowledge, unless properly instructed by counsel not to answer.
(5) Private Consultation. Except where agreed to, attorneys shall not
privately confer with deponents during the deposition between a question
and an answer except for the purpose of determining the existence of
privilege. Conferences with attorneys during normal recesses and at
adjournment are permissible unless prohibited by the court.
(6) Courtroom Standard. All counsel and parties shall conduct
themselves in depositions with the same courtesy and respect for the rules
that are required in the courtroom during trial.
[Amended effective July 1, 1972; April 2, 1979; September 1, 1985;
September 1, 1988; September 1, 1989; September 1, 1993; September 1, 2005.]
RULE 31
DEPOSITIONS UPON WRITTEN QUESTIONS
(a) Serving Questions; Notice. After the summons and a copy of the
complaint are served, or the complaint is filed, whichever shall first
occur, any party may take the testimony of any person, including a party,
by deposition upon written questions. The attendance of witnesses may be
compelled by the use of subpoena as provided in rule 45. The deposition of
a person confined in prison may be taken only by leave of court on such
terms as the court prescribes.
A party desiring to take a deposition upon written questions shall
serve them upon every other party with a notice stating (1) the name and
address of the person who is to answer them, if known, and if the name is
not known, a general description sufficient to identify him or the
particular class or group to which he belongs, and (2) the name or
descriptive title and address of the officer before whom the deposition is
to be taken. A deposition upon written questions may be taken of a public
or private corporation or a partnership or association or governmental
agency in accordance with the provisions of rule 30(b)(6).
Within 15 days after the notice and written questions are served, a
party may serve cross questions upon all other parties. Within 10 days
after being served with cross questions, a party may serve redirect
questions upon all other parties. Within 10 days after being served with
redirect questions, a party may serve recross questions upon all other
parties. The court may for cause shown enlarge or shorten the time.
(b) Officer To Take Responses and Prepare Record. A copy of the notice
and copies of all questions served shall be delivered by the party taking
the deposition to the officer designated in the notice, who shall proceed
promptly, in the manner provided by rule 30(c), (e), and (f), to take the
testimony of the witness in response to the questions and to prepare,
certify, and serve the deposition transcript, attaching thereto the copy of
the notice and the questions received by the officer, on the party taking
the deposition, unless the court orders otherwise.
(c) Notice of Service. When the deposition has been served, the officer
shall promptly give notice of its service to all other parties and file
such notice with the clerk of the court.
RULE 32
USE OF DEPOSITIONS IN COURT PROCEEDINGS
(a) Use of Depositions. At the trial or upon the hearing of a motion or
an interlocutory proceeding, any part or all of a deposition, so far as
admissible under the Rules of Evidence applied as though the witness were
then present and testifying, may be used against any party who was present
or represented at the taking of the deposition or who had reasonable notice
thereof, in accordance with any of the following provisions:
(1) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of deponent as a witness or for
any purpose permitted by the Rules of Evidence.
(2) The deposition of a party or of anyone who at the time of taking
the deposition was an officer, director, or managing agent, or a person
designated under rule 30(b)(6) or 31(a) to testify on behalf of a public or
private corporation, partnership or association or governmental agency
which is a party may be used by an adverse party for any purpose.
(3) The deposition of a witness, whether or not a party, may be used by
any party for any purpose if the court finds: (A) that the witness is dead;
or (B) that the witness resides out of the county and more than 20 miles
from the place of trial, unless it appears that the absence of the witness
was procured by the party offering the deposition or unless the witness is
an out-of-state expert subject to subsection (a)(5)(A) of this rule; or (C)
that the witness is unable to attend or testify because of age, illness,
infirmity, or imprisonment; or (D) that the party offering the deposition
has been unable to procure the attendance of the witness by subpoena; or
(E) upon application and notice, that such exceptional circumstances exist
as to make it desirable, in the interest of justice and with due regard to
the importance of presenting the testimony of witnesses orally in open
court, to allow the deposition to be used.
(4) If only part of a deposition is offered in evidence by a party, an
adverse party may require him to introduce any other part which ought in
fairness to be considered with the part introduced, and any party may
introduce any other parts.
(5) The deposition of an expert witness may be used as follows:
(A) The discovery deposition of an opposing partys rule 26(b)(5) expert
witness, who resides outside the state of Washington, may be used if
reasonable notice before the trial date is provided to all parties and any
party against whom the deposition is intended to be used is given a
reasonable opportunity to depose the expert again.
(B) The deposition of a health care professional, even though available
to testify at trial, taken with the expressly stated purpose of preserving
the deponents testimony for trial, may be used if, before the taking of the
deposition, there has been compliance with discovery requests made pursuant
to rules 26(b)(5)(A)(i), 33, 34, and 35 (as applicable) and if the opposing
party is afforded an adequate opportunity to prepare, by discovery
deposition of the deponent or other means, for cross examination of the
deponent.
Substitution of parties pursuant to rule 25 does not affect the right
to use depositions previously taken; and, when an action has been brought
in any court of the United States or of any state and another action
involving the same issues and subject matter is afterward brought between
the same parties or their representatives or successors in interest, all
depositions lawfully taken and duly filed in the former action may be used
in the latter as if originally taken therefor. A deposition previously
taken may also be used as permitted by the Rules of Evidence.
(b) Objections to Admissibility. Subject to the provisions of rule
28(b) and subsection (d)(3) of this rule, objection may be made at the
trial or hearing to receiving in evidence any deposition or part thereof
for any reason which would require the exclusion of the evidence if the
witness were then present and testifying.
(c) Effect of Taking or Using Depositions. A party does not make a
person his own witness for any purpose by taking his deposition. The
introduction in evidence of the deposition or any part thereof for any
purpose other than that of contradicting or impeaching the deponent makes
the deponent the witness of the party introducing the deposition, but this
shall not apply to the use by an adverse party of a deposition under
subsection (a)(2) of this rule. At the trial or hearing any party may rebut
any relevant evidence contained in a deposition whether introduced by him
or by any other party.
(d) Effect of Errors and Irregularities in Depositions.
(1) As to Notice. All errors and irregularities in the notice for
taking a deposition are waived unless written objection is promptly served
upon the party giving the notice.
(2) As to Disqualification of Officer. Objection to taking a deposition
because of disqualification of the officer before whom it is to be taken is
waived unless made before the taking of the deposition begins or as soon
thereafter as the disqualification becomes known or could be discovered
with reasonable diligence.
(3) As to Taking of Deposition.
(A) Objections to the competency of a witness or to the competency,
relevancy, or materiality of testimony are not waived by failure to make
them before or during the taking of the deposition, unless the ground of
the objection is one which might have been obviated or removed if presented
at that time.
(B) Errors and irregularities occurring at the oral examination in the
manner of taking the deposition, in the form of the questions or answers,
in the oath or affirmation, or in the conduct of parties, and errors of any
kind which might be obviated, removed, or cured if promptly presented, are
waived unless seasonable objection thereto is made at the taking of the
deposition.
(C) Objections to the form of written questions submitted under rule 31
are waived unless served in writing upon the party propounding them within
the time allowed for serving the succeeding cross or other questions and
within 5 days after service of the last questions authorized.
(4) As to Completion and Return of Deposition. Errors and
irregularities in the manner in which the testimony is transcribed or the
deposition is prepared, signed, certified, sealed, endorsed, transmitted,
filed, or otherwise dealt with by the officer under rules 30 and 31 are
waived unless a motion to suppress the deposition or some part thereof is
made with reasonable promptness after such defect is, or with due diligence
might have been, ascertained.
RULE 33
INTERROGATORIES TO PARTIES
(a) Availability; Procedures for Use. Any party may serve upon any
other party written interrogatories to be answered by the party served or,
if the party served is a public or private corporation or a partnership or
association or governmental agency, by any officer or agent, who shall
furnish such information as is available to the party. Interrogatories may,
without leave of court, be served upon the plaintiff after the summons and
a copy of the complaint are served upon the defendant, or the complaint is
filed, whichever shall first occur, and upon any other party with or after
service of the summons and complaint upon that party.
Interrogatories shall be so arranged that after each separate question
there shall appear a blank space reasonably calculated to enable the
answering party to place the written response. In the event the responding
party either chooses to place the response on a separate page or pages or
must do so in order to complete the response, the responding party shall
clearly denote the number of the question to which the response relates,
including the subpart thereof if applicable. Each interrogatory shall be
answered separately and fully in writing under oath, unless it is objected
to, in which event the reasons for objection shall be stated in lieu of an
answer. The answers are to be signed by the person making them, and the
objections signed by the attorney making them. The party upon whom the
interrogatories have been served shall serve a copy of the answers, and
objections if any, within 30 days after the service of the interrogatories,
except that a defendant may serve answers or objections within 40 days
after service of the summons and complaint upon that defendant. The parties
may stipulate or any party may move for an order under rule 37(a) with
respect to any objection to or other failure to answer an interrogatory.
(b) Scope; Use at Trial. Interrogatories may relate to any matters
which can be inquired into under rule 26(b), and the answers may be used to
the extent permitted by the Rules of Evidence.
An interrogatory otherwise proper is not necessarily objectionable
merely because an answer to the interrogatory involves an opinion or
contention that relates to fact or the application of law to fact, but the
court may order that such an interrogatory need not be answered until after
designated discovery has been completed or until a pretrial conference or
other later time.
An interrogatory otherwise proper is not objectionable merely because
the propounding party may have other access to the requested information or
has the burden of proof on the subject matter of the interrogatory at
trial.
(c) Option To Produce Business Records. Where the answer to an
interrogatory may be derived or ascertained from the business records of
the party upon whom the interrogatory has been served or from an
examination, audit or inspection of such business records, or from a
compilation, abstract or summary based thereon, and the burden of deriving
or ascertaining the answer is substantially the same for the party serving
the interrogatory as for the party served, it is sufficient answer to such
interrogatory to specify the records from which the answer may be derived
or ascertained and to afford to the party serving the interrogatory
reasonable opportunity to examine, audit or inspect such records and to
make copies, compilations, abstracts or summaries. A specification shall be
in sufficient detail to permit the interrogating party to locate and to
identify, as readily as can the party served, the records from which the
answer may be ascertained.
SUPERIOR CIVIL RULE 34
PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON
LAND FOR INSPECTION AND OTHER PURPOSES
(a) Scope. Any party may serve on any other party a
request (1) to produce and permit the party making the
request, or someone acting on his behalf, to inspect and
copy, any designated documents (including writings,
drawings, graphs, charts, photographs, phonorecords, and
other data compilations from which information can be
obtained, translated, if necessary, by the respondent
through detection devices into reasonably usable form), or
to inspect and copy, test, or sample any tangible things
which constitute or contain matters within the scope of rule
26(b) and which are in the possession, custody or control of
the party upon whom the request is served; or (2) to permit
entry upon designated land or other property in the
possession or control of the party upon whom the request is
served for the purpose of inspection and measuring,
surveying, photographing, testing, or sampling the property
or any designated object or operation thereon, within the
scope of rule 26(b).
(b) Procedure. The request may, without leave of court,
be served upon the plaintiff after the summons and a copy of
the complaint are served upon the defendant, or the
complaint is filed, whichever shall first occur, and upon
any other party with or after service of the summons and
complaint upon that party. The request shall set forth the
items to be inspected either by individual item or by
category, and describe each item and category with
reasonable particularity. The request shall specify a
reasonable time, place and manner of making the inspection
and performing the related acts.
The party upon whom the request is served shall serve a
written response within 30 days after the service of the
request, except that a defendant may serve a response within
40 days after service of the summons and complaint upon that
defendant. The parties may stipulate or the court may allow
a shorter or longer time. The response shall state, with
respect to each item or category, that inspection and
related activities will be permitted as requested, unless
the request is objected to, in which event the reasons for
objection shall be stated. If objection is made to part of
an item or category, the part shall be specified and
inspection permitted of the remaining parts. The party
submitting the request may move for an order under rule
37(a) with respect to any objection to or other failure to
respond to the request or any part thereof, or any failure
to permit inspection as requested.
A party who produces documents for inspection shall
produce them as they are kept in the usual course of
business or shall organize and label them to correspond with
the categories in the request.
(c) Persons Not Parties. This rule does not preclude an
independent action against a person not a party for
production of documents and things and permission to enter
upon land.
RULE 35
PHYSICAL AND MENTAL EXAMINATION OF PERSONS
(a) Examination.
(1) Order for Examination. When the mental or physical
condition (including the blood group) of a party, or of a
person in the custody or under the legal control of a party,
is in controversy, the court in which the action is pending
may order the party to submit to a physical examination by a
physician, or mental examination by a physician or
psychologist or to produce for examination the person in the
party's custody or legal control. The order may be made only
on motion for good cause shown and upon notice to the person
to be examined and to all parties and shall specify the
time, place, manner, conditions, and scope of the
examination and the person or persons by whom it is to be
made.
(2) Representative at Examination. The party being
examined may have a representative present at the
examination, who may observe but not interfere with or
obstruct the examination.
(3) Recording of Examination. Unless otherwise ordered
by the court, the party being examined or that party's
representative may make an audiotape recording of the
examination which shall be made in an unobtrusive manner. A
videotape recording of the examination may be made on
agreement of the parties or by order of the court.
(b) Report of Examining Physician or Psychologist. The
party causing the examination to be made shall deliver to
the party or person examined a copy of a detailed written
report of the examining physician or psychologist setting
out the examiner's findings, including results of all tests
made, diagnosis and conclusions, together with like reports
of all earlier examinations of the same condition,
regardless of whether the examining physician or
psychologist will be called to testify at trial. The report
shall be delivered within 45 days of the examination and in
no event less than 30 days prior to trial. These deadlines
may be altered by agreement of the parties or by order of
the court. If a physician or psychologist fails or refuses
to make a report in compliance herewith the court shall
exclude the examiner's testimony if offered at the trial,
unless good cause for noncompliance is shown.
(c) Examination by Agreement. Subsections (a) (2) and
(3) and (b) apply to examinations made by agreement of the
parties, unless the agreement expressly provides otherwise.
RULE 36
REQUESTS FOR ADMISSION
(a) Request for Admission. A party may serve upon any other party a
written request for the admission, for purposes of the pending action only,
of the truth of any matters within the scope of rule 26(b) set forth in the
request that relate to statements or opinions of fact or of the application
of law to fact, including the genuineness of any documents described in the
request. Copies of documents shall be served with the request unless they
have been or are otherwise furnished or made available for inspection and
copying. The request may, without leave of court, be served upon the
plaintiff after the summons and a copy of the complaint are served upon the
defendant, or the complaint is filed, whichever shall first occur, and upon
any other party with or after service of the summons and complaint upon
that party. Requests for admission shall not be combined in the same
document with any other form of discovery.
Each matter of which an admission is requested shall be separately set
forth. The matter is admitted unless, within 30 days after service of the
request, or within such shorter or longer time as the court may allow, the
party to whom the request is directed serves upon the party requesting the
admission a written answer or objection addressed to the matter, signed by
the party or by his attorney, but, unless the court shortens the time, a
defendant shall not be required to serve answers or objections before the
expiration of 40 days after service of the summons and complaint upon him.
If objection is made, the reasons therefor shall be stated. The answer
shall specifically deny the matter or set forth in detail the reasons why
the answering party cannot truthfully admit or deny the matter. A denial
shall fairly meet the substance of the requested admission, and when good
faith requires that a party qualify his answer or deny only a part of the
matter of which an admission is requested, he shall specify so much of it
as is true and qualify or deny the remainder. An answering party may not
give lack of information or knowledge as a reason for failure to admit or
deny unless he states that he has made reasonable inquiry and that the
information known or readily obtainable by him is insufficient to enable
him to admit or deny. A party who considers that a matter of which an
admission has been requested presents a genuine issue for trial or a
central fact in dispute may not, on that ground alone, object to the
request; he may, subject to the provisions of rule 37(c), deny the matter
or set forth reasons why he cannot admit or deny it.
The party who has requested the admissions may move to determine the
sufficiency of the answers or objections. Unless the court determines that
an objection is justified, it shall order that an answer be served. If the
court determines that an answer does not comply with the requirements of
this rule, it may order either that the matter is admitted or that an
amended answer be served. The court may, in lieu of these orders, determine
that final disposition of the request be made at a pretrial conference or
at a designated time prior to trial. The provisions of rule 37(a)(4) apply
to the award of expenses incurred in relation to the motion.
(b) Effect of Admission. Any matter admitted under this rule is
conclusively established unless the court on motion permits withdrawal or
amendment of the admission. Subject to the provisions of rule 16 governing
amendment of a pretrial order, the court may permit withdrawal or amendment
when the presentation of the merits of the action will be subserved thereby
and the party who obtained the admission fails to satisfy the court that
withdrawal or amendment will prejudice him in maintaining his action or
defense on the merits. Any admission made by a party under this rule is for
the purpose of the pending action only and is not an admission by him for
any other purpose nor may it be used against him in any other proceeding.
RULE CR 37
FAILURE TO MAKE DISCOVERY: SANCTIONS
(a) Motion for Order Compelling Discovery. A party, upon
reasonable notice to other parties and all persons affected
thereby, and upon a showing of compliance with rule 26(i),
may apply to the court in the county where the deposition
was taken, or in the county where the action is pending, for
an order compelling discovery as follows:
(1) Appropriate Court. An application for an order to a
party may be made to the court in which the action is
pending, or on matters relating to a deposition, to the
court in the county where the deposition is being
taken. An application for an order to a deponent who is
not a party shall be made to the court in the county
where the deposition is being taken.
(2) Motion. If a deponent fails to answer a question
propounded or submitted under rules 30 or 31, or a
corporation or other entity fails to make a designation
under rule 30(b)(6) or 31(a), or a party fails to
answer an interrogatory submitted under rule 33, or if
a party, in response to a request for inspection
submitted under rule 34, fails to respond that
inspection will be permitted as requested or fails to
permit inspection as requested, any party may move for
an order compelling an answer or a designation, or an
order compelling inspection in accordance with the
request. When taking a deposition on oral examination,
the proponent of the question may complete or adjourn
the examination before he applies for an order.
If the court denies the motion in whole or in part, it may
make such protective order as it would have been empowered
to make on a motion made pursuant to rule 26(c).
(3) Evasive or Incomplete Answer. For purposes of this
section an evasive or incomplete answer is to be
treated as a failure to answer.
(4) Award of Expenses of Motion. If the motion is granted,
the court shall, after opportunity for hearing, require
the party or deponent whose conduct necessitated the
motion or the party or attorney advising such conduct
or both of them to pay to the moving party the
reasonable expenses incurred in obtaining the order,
including attorney fees, unless the court finds that
the opposition to the motion was substantially
justified or that other circumstances make an award of
expenses unjust.
If the motion is denied, the court shall, after opportunity
for hearing, require the moving party or the attorney
advising the motion or both of them to pay to the party or
deponent who opposed the motion the reasonable expenses
incurred in opposing the motion, including attorney fees,
unless the court finds that the making of the motion was
substantially justified or that other circumstances make an
award of expenses unjust.
If the motion is granted in part and denied in part, the
court may apportion the reasonable expenses incurred in
relation to the motion among the parties and persons in a
just manner.
(b) Failure To Comply With Order.
(1) Sanctions by Court in County Where Deposition Is Taken.
If a deponent fails to be sworn or to answer a question
after being directed to do so by the court in the
county in which the deposition is being taken, the
failure may be considered a contempt of that court.
(2) Sanctions by Court in Which Action Is Pending. If a
party or an officer, director, or managing agent of a
party or a person designated under rule 30(b)(6) or
31(a) to testify on behalf of a party fails to obey an
order to provide or permit discovery, including an
order made under section (a) of this rule or rule 35,
or if a party fails to obey an order entered under rule
26(f), the court in which the action is pending may
make such orders in regard to the failure as are just,
and among others the following:
(A) An order that the matters regarding which the
order was made or any other designated facts shall
be taken to be established for the purposes of the
action in accordance with the claim of the party
obtaining the order;
(B) An order refusing to allow the disobedient party
to support or oppose designated claims or
defenses, or prohibiting him from introducing
designated matters in evidence;
(C) An order striking out pleadings or parts thereof,
or staying further proceedings until the order is
obeyed, or dismissing the action or proceedings or
any part thereof, or rendering a judgment by
default against the disobedient party;
(D) In lieu of any of the foregoing orders or in
addition thereto, an order treating as a contempt
of court the failure to obey any orders except an
order to submit to physical or mental examination;
(E) Where a party has failed to comply with an order
under rule 35(a) requiring him to produce another
for examination such orders as are listed in
sections (A), (B), and (C) of this subsection,
unless the party failing to comply shows that he
is unable to produce such person for examination.
In lieu of any of the foregoing orders or in addition
thereto, the court shall require the party failing to obey
the order or the attorney advising him or both to pay the
reasonable expenses, including attorney fees, caused by the
failure, unless the court finds that the failure was
substantially justified or that other circumstances make an
award of expenses unjust.
(c) Expenses on Failure To Admit. If a party fails to admit the
genuineness of any document or the truth of any matter as
requested under rule 36, and if the party requesting the
admissions thereafter proves the genuineness of the document
or the truth of the matter, he may apply to the court for an
order requiring the other party to pay him the reasonable
expenses incurred in making that proof, including reasonable
attorney fees. The court shall make the order unless it
finds that:
(1) the request was held objectionable pursuant to rule
36(a); or
(2) the admission sought was of no substantial importance;
or
(3) the party failing to admit had reasonable ground to
believe the fact was not true or the document was not
genuine; or
(4) there was other good reason for the failure to admit.
(d) Failure of Party To Attend at Own Deposition or Serve
Answers to Interrogatories or Respond to Request for
Production or Inspection. If a party or an officer,
director, or managing agent of a party or a person
designated under rule 30(b)(6) or 31(a) to testify on behalf
of a party fails;
(1) to appear before the officer who is to take his or her
deposition, after being served with a proper notice; or
(2) to serve answers or objections to interrogatories
submitted under rule 33, after proper service of the
interrogatories; or
(3) to serve a written response to a request for production
of documents or inspection submitted under rule 34,
after proper service of the request, the court in which
the action is pending on motion may make such orders in
regard to the failure as are just, and among others it
may take any action authorized under sections (A), (B),
and (C) of subsection (b)(2) of this rule. In lieu of
any order or in addition thereto, the court shall
require the party failing to act or the attorney
advising the party or both to pay the reasonable
expenses, including attorney fees, caused by the
failure, unless the court finds that the failure was
substantially justified or that other circumstances
make an award of expenses unjust.
The failure to act described in this subsection may not be
excused on the ground that the discovery sought is
objectionable unless the party failing to act has applied
for a protective order as provided by rule 26(c). For
purposes of this section, an evasive or misleading answer is
to be treated as a failure to answer.
(e) Failure To Participate in the Framing of a Discovery Plan.
If a party or his attorney fails to participate in good
faith in the framing of a discovery plan by agreement as is
required by rule 26(f), the court may, after opportunity for
hearing, require such party or his attorney to pay to any
other party the reasonable expenses, including attorney
fees, caused by the failure.
[Amended effective July 1, 1972; September 1, 1985; September 1, 1992; September 1, 1993.]
RULE CR 38
JURY TRIAL OF RIGHT
(-) Defined. A trial is the judicial examination of the issues
between the parties, whether they are issues of law or of fact.
(a) Right of Jury Trial Preserved. The right of trial by jury as
declared by article 1, section 21 of the constitution or as
given by a statute shall be preserved to the parties inviolate.
(b) Demand for Jury. At or prior to the time the case is called
to be set for trial, any party may demand a trial by jury of
any issue triable of right by a jury by serving upon the
other parties a demand therefor in writing, by filing the
demand with the clerk, and by paying the jury fee required
by law. If before the case is called to be set for trial no
party serves or files a demand that the case be tried by a
jury of twelve, it shall be tried by a jury of six members
with the concurrence of five being required to reach a verdict.
(c) Specification of Issues. In his demand a party may specify
the issues which he wishes so tried; otherwise he shall be
deemed to have demanded trial by jury for all the issues so
triable. If he has demanded trial by jury for only some of
the issues, any other party within 10 days after service of
the demand or such lesser time as the court may order, may
serve a demand for trial by jury of any other or all of the
issues of fact in the action.
(d) Waiver of Jury. The failure of a party to serve a demand as
required by this rule, to file it as required by this rule,
and to pay the jury fee required by law in accordance with
this rule, constitutes a waiver by him of trial by jury. A
demand for trial by jury made as herein provided may not be
withdrawn without the consent of the parties.
[Amended effective January 1, 1972; July 29, 1973; August 7, 1981.]
RULE 39
TRIAL BY JURY OR BY THE COURT
(-) Issues--How Tried. (Reserved. See RCW 4.40.010 through 4.40.070.)
(a) By Jury.
(1) Rule. When trial by jury has been demanded as provided in rule 38,
the action shall be designated upon the docket as a jury action. The trial
of all issues so demanded shall be by jury, unless (A) the parties or their
attorneys of record, by written stipulation filed with the court or by an
oral stipulation made in open court and entered in the record, consent to
trial by the court sitting without a jury or (B) the court upon motion or
of its own initiative finds that a right of trial by jury of some or all of
those issues does not exist under the constitution or statutes of the
state.
(2) Questions of Fact for Jury. (Reserved. See RCW 4.44.090.)
(b) By the Court.
(1) Rule. Issues not demanded for trial by jury as provided in rule 38
shall be tried by the court; but, notwithstanding the failure of a party to
demand a jury in an action in which such a demand might have been made of
right, the court in its discretion upon motion may order a trial by a jury
of any or all issues.
(2) Questions of Law To Be Decided by Court. (Reserved. See RCW
4.44.080.)
(c) Advisory Jury and Trial by Consent. In all actions not triable of
right by a jury the court, upon motion or of its own initiative, may try an
issue with an advisory jury or it may, with the consent of both parties,
order a trial with a jury whose verdict has the same effect as if trial by
jury had been a matter of right.
RULE 40
ASSIGNMENT OF CASES
(a) Notice of Trial--Note of Issue.
(1) Of Fact. At any time after the issues of fact are completed in
any case by the service of complaint and answer or reply when
necessary, as herein provided, either party may cause the issues of
fact to be brought on for trial, by serving upon the opposite party a
notice of trial at least 3 days before any day provided by rules of
court for setting causes for trial, which notice shall give the title
of the cause as in the pleadings, and notify the opposite party that
the issues in such action will be brought on for trial at the time set
by the court; and the party giving such notice of trial shall, at
least 5 days before the day of setting such causes for trial, file
with the clerk of the court a note of issue containing the title of
the action, the names of the attorneys and the date when the last
pleading was served; and the clerk shall thereupon enter the cause
upon the trial docket according to the date of the issue.
(2) Of Law. In case an issue of law raised upon the pleadings is
desired to be brought on for argument, either party shall, at least 5
days before the day set apart by the court under its rules for hearing
issues of law, serve upon the opposite party a like notice of trial
and furnish the clerk of the court with a note of issue as above
provided, which note of issue shall specify that the issue to be tried
is an issue of law; and the clerk of the court shall thereupon enter
such action upon the motion docket of the court.
(3) Adjournments. When a cause has once been placed upon either
docket of the court, if not tried or argued at the time for which
notice was given, it need not be noticed for a subsequent session or
day, but shall remain upon the docket from session to session or from
law day to law day until final disposition or stricken off by the
court.
(4) Filing Note by Opposite Party. The party upon whom notice of
trial is served may file the note of issue and cause the action to be
placed upon the calendar without further notice on his part.
(5) Issue May Be Brought to Trial by Either Party. Either party,
after the notice of trial, whether given by himself or the adverse
party, may bring the issue to trial, and in the absence of the adverse
party, unless the court for good cause otherwise directs, may proceed
with his case, and take a dismissal of the action, or a verdict or
judgment, as the case may require.
(b) Methods. Each superior court may provide by local rule for
placing of actions upon the trial calendar (1) without request of the
parties or (2) upon request of a party and notice to the other parties
or (3) in such other manner as the court deems expedient.
(c) Preferences. In setting cases for trial, unless otherwise
provided by statute, preference shall be given to criminal over civil
cases, and cases where the defendant or a witness is in confinement
shall have preference over other cases.
(d) Trials. When a cause is set and called for trial, it shall be
tried or dismissed, unless good cause is shown for a continuance. The
court may in a proper case, and upon terms, reset the same.
(e) Continuances. A motion to continue a trial on the ground of the
absence of evidence shall only be made upon affidavit showing the
materiality of the evidence expected to be obtained, and that due
diligence has been used to procure it, and also the name and address of
the witness or witnesses. The court may also require the moving party to
state upon affidavit the evidence which he expects to obtain; and if the
adverse party admits that such evidence would be given, and that it be
considered as actually given on the trial, or offered and overruled as
improper, the trial shall not be continued. The court, upon its allowance
of the motion, may impose terms or conditions upon the moving party.
(f) Change of Judge. Any right under RCW 4.12.050 to seek
disqualification of a judge will be deemed waived unless, in addition to
the limitations in the statute, the motion and affidavit is filed with the
court no later than thirty days prior to trial before a pre-assigned judge.
For purposes of this rule, "trial" includes any review or appeal from an
administrative body. If a case is reassigned to a different judge less
than forty days prior to trial, a party may then move for a change of judge
within ten days of such reassignment, unless the moving party has
previously made such a motion.
RULE 41
DISMISSAL OF ACTIONS
(a) Voluntary Dismissal.
(1) Mandatory. Subject to the provisions of rules 23(e) and 23.1, any
action shall be dismissed by the court:
(A) By stipulation. When all parties who have appeared so stipulate in
writing; or
(B) By plaintiff before resting. Upon motion of the plaintiff at any
time before plaintiff rests at the conclusion of his opening case.
(2) Permissive. After plaintiff rests after his opening case, plaintiff
may move for a voluntary dismissal without prejudice upon good cause shown
and upon such terms and conditions as the court deems proper.
(3) Counterclaim. If a counterclaim has been pleaded by a defendant
prior to the service upon him of plaintiff's motion for dismissal, the
action shall not be dismissed against the defendant's objection unless the
counterclaim can remain pending for independent adjudication by the court.
(4) Effect. Unless otherwise stated in the order of dismissal, the
dismissal is without prejudice, except that an order of dismissal operates
as an adjudication upon the merits when obtained by a plaintiff who has
once dismissed an action based on or including the same claim in any court
of the United States or of any state.
(b) Involuntary Dismissal; Effect. For failure of the plaintiff to
prosecute or to comply with these rules or any order of the court, a
defendant may move for dismissal of an action or of any claim against him or her.
(1) Want of Prosecution on Motion of Party. Any civil action shall be
dismissed, without prejudice, for want of prosecution whenever the
plaintiff, counterclaimant, cross claimant, or third party plaintiff
neglects to note the action for trial or hearing within 1 year after any
issue of law or fact has been joined, unless the failure to bring the same
on for trial or hearing was caused by the party who makes the motion to
dismiss. Such motion to dismiss shall come on for hearing only after 10
days' notice to the adverse party. If the case is noted for trial before
the hearing on the motion, the action shall not be dismissed.
(2) Dismissal on Clerk's Motion.
(A) Notice. In all civil cases in which no action of
record has occurred during the previous 12 months, the clerk of the
superior court shall notify the attorneys of record by mail
that the court will dismiss the case for want of prosecution
unless, within 30 days following the mailing of such notice,
a party takes action of record or files a status report with
the court indicating the reason for inactivity and
projecting future activity and a case completion date. If
the court does not receive such a status report, it shall,
on motion of the clerk, dismiss the case without prejudice
and without cost to any party.
(B) Mailing notice; reinstatement. The clerk shall mail
notice of impending dismissal not later than 30 days after
the case becomes eligible for dismissal because of
inactivity. A party who does not receive the clerk's notice
shall be entitled to reinstatement of the case, without
cost, upon motion brought within a reasonable time after
learning of the dismissal.
(C) Discovery in process. The filing of a document
indicating that discovery is occurring between the parties
shall constitute action of record for purposes of this rule.
(D) Other grounds for dismissal and reinstatement.
This rule is not a limitation upon any other power that the
court may have to dismiss or reinstate any action upon
motion or otherwise.
(3) Defendant's Motion After Plaintiff Rests. After the plaintiff, in
an action tried by the court without a jury, has completed the presentation
of his evidence, the defendant, without waiving his right to offer evidence
in the event the motion is not granted, may move for a dismissal on the
ground that upon the facts and the law the plaintiff has shown no right to
relief. The court as trier of the facts may then determine them and render
judgment against the plaintiff or may decline to render any judgment until
the close of all the evidence. If the court renders judgment on the merits
against the plaintiff, the court shall make findings as provided in rule
52(a). Unless the court in its order for dismissal otherwise specifies, a
dismissal under this subsection and any dismissal not provided for in this
rule, other than a dismissal for lack of jurisdiction, for improper venue,
or for failure to join a party under rule 19, operates as an adjudication
upon the merits.
(c) Dismissal of Counterclaim, Cross Claim, or Third Party Claim. The
provisions of this rule apply to the dismissal of any counterclaim, cross
claim, or third party claim. A voluntary dismissal by the claimant alone
pursuant to subsection (a)(1) of this rule shall be made before a
responsive pleading is served or, if there is none, before the introduction
of evidence at the trial or hearing.
(d) Costs of Previously Dismissed Action. If a plaintiff who has once
dismissed an action in any court commences an action based upon or
including the same claim against the same defendant, the court may make
such order for the payment of taxable costs of the action previously
dismissed as it may deem proper and may stay the proceedings in the action
until the plaintiff has complied with the order.
(e) Notice of Settlements. If a case is settled after it has been
assigned for trial, it shall be the duty of the attorneys or of any party
appearing pro se to notify the court promptly of the settlement. If the
settlement is made within 5 days before the trial date, the notice shall be
made by telephone or in person. All notices of settlement shall be
confirmed in writing to the clerk.
RULE CR 42
CONSOLIDATION; SEPARATE TRIALS
(a) Consolidation. When actions involving a common question of
law or fact are pending before the court, it may order a
joint hearing or trial of any or all the matters in issue in
the actions; it may order all the actions consolidated; and
it may make such orders concerning proceedings therein as
may tend to avoid unnecessary costs or delay.
(b) Separate Trials. The court, in furtherance of convenience or
to avoid prejudice, or when separate trials will be
conducive to expedition and economy, may order a separate
trial of any claim, cross claim, counterclaim, or third
party claim, or of any separate issue or of any number of
claims, cross claims, counterclaims, third party claims, or
issues, always preserving inviolate the right of trial by jury.
[Adopted effective July 1, 1967.]
RULE CR 43
TAKING OF TESTIMONY
(a) Testimony.
(1) Generally. In all trials the testimony of witnesses shall be taken
orally in open court, unless otherwise directed by the court or provided
by rule or statute. For good cause in compelling circumstances and with
appropriate safeguards, the court may permit testimony in open court by
contemporaneous transmission from a different location.
(2)Multiple Examinations. When two or more attorneys are on the same side
trying a case, the attorney conducting the examination of a witness
shall continue until the witness is excused from the stand; and all
objections and offers of proof made during the examination of such
witness shall be made or announced by the attorney who is conducting the
examination or cross examination.
(b) and (c) (Reserved. See ER 103 and 611.)
(d) Oaths of Witnesses.
(1) Administration. The oaths of all witnesses in the superior court
(A) shall be administered by the judge;
(B) shall be administered to each witness individually; and
(C) the witness shall stand while the oath is administered.
(2) Applicability. This rule shall not apply to civil ex parte proceedings
or default divorce cases and in such cases the manner of swearing
witnesses shall be as each superior court may prescribe.
(3) Affirmation in Lieu of Oath. Whenever under these rules an oath is
required to be taken, a solemn affirmation may be accepted in lieu thereof.
(e) Evidence on Motions.
(1) Generally. When a motion is based on facts not appearing of record the
court may hear the matter on affidavits presented by the respective
parties, but the court may direct that the matter be heard wholly or
partly on oral testimony or depositions.
(2) For injunctions, etc. On application for injunction or motion to
dissolve an injunction or discharge an attachment, or to appoint or
discharge a receiver, the notice thereof shall designate the kind of
evidence to be introduced on the hearing. If the application is to be
heard on affidavits, copies thereof must be served by the moving party
upon the adverse party at least 3 days before the hearing. Oral testimony
shall not be taken on such hearing unless permission of the court is first
obtained and notice of such permission served upon the adverse
party at least 3 days before the hearing. This rule shall not be construed
as pertaining to applications for restraining orders or for appointment of
temporary receivers.
(f) Adverse Party as Witness.
(1) Party or Managing Agent as Adverse Witness. A party, or anyone who at
the time of the notice is an officer, director, or other managing agent
(herein collectively referred to as "managing agent") of a public or
private corporation, partnership or association which is a party to an
action or proceeding may be examined at the instance of any adverse party.
Attendance of such deponent or witness may be compelled solely by notice
(in lieu of a subpoena) given in the manner prescribed in rule 30(b) (1)
to opposing counsel of record. Notices for the attendance of a party or of
a managing agent at the trial shall be given not less than 10 days before
trial (exclusive of the day of service, Saturdays, Sundays, and court
holidays). For good cause shown in the manner prescribed in rule 26(c),
the court may make orders for the protection of the party or managing
agent to be examined.
(2) Effect of Discovery, etc. A party who has served interrogatories to be
answered by the adverse party or who has taken the deposition of an
adverse party or of the managing agent of an adverse party shall not be
precluded for that reason from examining such adverse party or managing
agent at the trial. Matters admitted by the adverse party or managing
agent in interrogatory answers, deposition testimony, or trial testimony
are not conclusively established and may be rebutted.
(3) Refusal To Attend and Testify; Penalties. If a party or a managing
agent refuses to attend and testify before the officer designated to take
his deposition or at the trial after notice served as prescribed in rule
30(b)(1), the complaint, answer, or reply of the party may be stricken and
judgment taken against the party, and the contumacious party or managing
agent may also be proceeded against as in other cases of contempt. This
rule shall not be construed:
(A) to compel any person to answer any question where such answer
might tend to incriminate him;
(B) to prevent a party from using a subpoena to compel the attendance of
any party or managing agent to give testimony by deposition or at the trial; nor
(C) to limit the applicability of any other sanctions or penalties
provided in rule 37 or otherwise for failure to attend and give testimony.
(g) Attorney as Witness. If any attorney offers himself as a witness on behalf
of his client and gives evidence on the merits, he shall not argue the case
to the jury, unless by permission of the court.
(h) Report or Transcript as Evidence. Whenever the testimony of a witness at a
trial or hearing which was reported is admissible in evidence at a later
trial, it may be proved by the transcript thereof duly certified by the
person who reported the testimony.
(i) (Reserved. See ER 804.)
(j) Report of Proceedings in Retrial of Nonjury Cases. In the event a cause
has been remanded by the court for a new trial or the taking of further
testimony, and such cause shall have been tried without a jury, and the
testimony in such cause shall have been taken in full and used as the report
of proceedings upon review, either party upon the retrial of such cause or
the taking of further testimony therein shall have the right, provided the
court shall so order after an application on 10 days' notice to the opposing
party or parties, to submit said report of proceedings as the testimony in
said cause upon its second hearing, to the same effect as if the witnesses
called by him in the earlier hearing had been called, sworn, and testified
in the further hearing; but no party shall be denied the right to submit
other or further testimony upon such retrial or further hearing, and the
party having the right of cross examination shall have the privilege of
subpoenaing any witness whose testimony is contained in such report of
proceedings for further cross examination.
(k) Juror Questions for Witnesses. The court shall permit jurors to submit to
the court written questions directed to witnesses. Counsel shall be given
an opportunity to object to such questions in a manner that does not inform
the jury that an objection was made. The court shall establish procedures
for submitting, objecting to, and answering questions from jurors to
witnesses. The court may rephrase or reword questions from jurors to
witnesses. The court may refuse on its own motion to allow a particular
question from a juror to a witness.
[Amended effective January 1, 1977; April 2, 1979; September 1, 1988; amended
effective October 1, 2002; September 1, 2006; September 1, 2010.]
RULE 44
PROOF OF OFFICIAL RECORD
(a) Authentication.
(1) Domestic. An official record kept within the United States, or any
state, district, or commonwealth, territory, or within a territory subject
to the administrative or judicial jurisdiction of the United States, or an
entry therein, when admissible for any purpose, may be evidenced by an
official publication thereof or by a copy attested by the officer having
the legal custody of the record, or by the officer's deputy, and
accompanied by a certificate that such officer has the custody. The
certificate may be made by a judge of a court of record of the district or
political subdivision in which the record is kept, authenticated by the
seal of the court, or may be made by any public officer having a seal of
office or official custody of the seal of the political subdivision and
having official duties in the district or political subdivision in which
the record is kept, authenticated by the seal of the officer's office or
the seal of the political subdivision.
(2) Foreign. A foreign official record, or an entry therein, when
admissible for any purpose, may be evidenced by an official publication
thereof; or a copy thereof, attested by a person authorized to make the
attestation, and accompanied by a final certification as to the genuineness
of the signature and official position (A) of the attesting person, or (B)
of any foreign official whose certificate of genuineness of signature and
official position relates to the attestation or is in a chain of
certificates of genuineness of signature and official position relating to
the attestation. A final certification may be made by a secretary of
embassy or legation, consul general, consul, vice-consul, or consular agent
of the United States, or a diplomatic or consular official of the foreign
country assigned or accredited to the United States. If reasonable
opportunity has been given to all parties to investigate the authenticity
and accuracy of the documents, the court may, for good cause shown, either
admit an attested copy without final certification or permit the foreign
official record to be evidenced by an attested summary with or without a
final certification. The final certification is unnecessary if the record
and the attestation are certified as provided in a treaty or convention to
which the United States and the foreign country in which the official
record is located are parties.
(b) Lack of Record. A written statement that after diligent search no
record or entry of a specified tenor is found to exist in the records,
designated by the statement, authenticated as provided in subsection (a)(1)
of this rule in the case of a domestic record, or complying with the
requirements of subsection (a)(2) of this rule for a summary in the case of
a foreign record, is admissible as evidence that the records contain no
such record or entry.
(c) Other Proof. This rule does not prevent the proof of official
records or of entry or lack of entry therein by any other method authorized
by law.
RULE 44.1
DETERMINATION OF FOREIGN LAW
(a) Pleading. A party who intends to raise an issue concerning the law
of a state, territory, or other jurisdiction of the United States, or a
foreign country shall give notice in his pleadings in accordance with rule
9(k).
(b) United States Jurisdiction. The law of a state, territory, or other
jurisdiction of the United States shall be determined as provided in RCW
5.24.
(c) Other Jurisdictions. The court, in determining the law of any
jurisdiction other than a state, territory, or other jurisdiction of the
United States, may consider any relevant written material or other source,
including testimony, having due regard for their trustworthiness, whether
or not submitted by a party and whether or not admissible under the Rules
of Evidence. If the court considers any material or source not received in
open court, prior to its determination the court shall:
(1) Identify in the record such material or source;
(2) Summarize in the record any unwritten information received; and
(3) Afford the parties an opportunity to respond thereto. The courts
determination shall be treated as a ruling on a question of law.
45 SUBPOENA (IN WORD FORMAT) The contents of this item are only available on-line.
RULE 46
EXCEPTIONS UNNECESSARY
Formal exceptions to rulings or orders of the court are unnecessary;
but for all purposes for which an exception has heretofore been necessary
it is sufficient that a party, at the time the ruling or order of the court
is made or sought, makes known to the court the action which he desires the
court to take or his objection to the action of the court and his grounds
therefor; and, if a party has no opportunity to object to a ruling or order
at the time it is made, the absence of an objection does not thereafter
prejudice him.
RULE CR 47
JURORS
(a) Examination of Jurors. The court may examine the prospective jurors
to the extent it deems appropriate, and shall permit the parties or their
attorneys to ask reasonable questions.
(b) Alternate Jurors. The court may direct that not more than six
jurors in addition to the regular jury be called and impaneled to sit as
alternate jurors. Alternate jurors in the order in which they are called
shall replace jurors who, prior to the time the jury retires to consider
its verdict, become or are found to be unable or disqualified to perform
their duties. Alternate jurors shall be drawn in the same manner, shall
have the same qualifications, shall be subject to the same examination and
challenges, shall take the same oath, and shall have the same functions,
powers, facilities, and privileges as the regular jurors. Each side is
entitled to one peremptory challenge in addition to those otherwise allowed
by law if one or two alternate jurors are to be impaneled, two peremptory
challenges if three or four alternate jurors are to be impaneled, and three
peremptory challenges if five or six alternate jurors are to be impaneled.
The additional peremptory challenges may be used against an alternate juror
only, and the other peremptory challenges allowed by law shall not be used
against an alternate juror. An alternate juror who does not replace a
regular juror may be discharged or temporarily excused after the jury
retires to consider its verdict. When an alternate juror is temporarily
excused but not discharged, the trial judge shall take appropriate steps to
protect such juror from influence, interference or publicity which might
affect that jurors ability to remain impartial, and the trial judge may
conduct brief voir dire before seating such alternate juror for any trial
or deliberations. An alternate juror may be recalled at any time that a
regular juror is unable to serve, including a second phase of any trial
that is bifurcated. If the jury has commenced deliberations prior to the
replacement of a regular juror with an alternate juror, the jury shall be
instructed to disregard all previous deliberations and to begin
deliberations anew.
(c) Procedure When Juror Becomes Ill. (Reserved. See RCW 4.44.290.)
(d) Impaneling Jury. (Reserved. See RCW 4.44.120.)
(e) Challenge.
(1) Kind and Number. (Reserved. See RCW 4.44.130.)
(2) Peremptory Challenges Defined. (Reserved. See RCW 4.44.140.)
(3) Challenges for Cause. (Reserved. See RCW 4.44.150.)
(4) General Causes of Challenge. (Reserved. See RCW 4.44.160.)
(5) Particular Causes of Challenge. (Reserved. See RCW 4.44.170.)
(6) Implied Bias Defined. (Reserved. See RCW 4.44.180.)
(7) Challenge for Actual Bias. (Reserved. See RCW 4.44.190.)
(8) Exemption Not Cause of Challenge. (Reserved.)
(9) Peremptory Challenges. (Reserved. See RCW 4.44.210.)
(10) Order of Taking Challenges. (Reserved. See RCW 4.44.220.)
(11) Objections to Challenges. (Reserved. See RCW 4.44.230.)
(12) Trial of Challenge. (Reserved. See RCW 4.44.240.)
(13) Challenge; Objection and Denial May Be Oral. (Reserved. See RCW
4.44.250.)
(f) Oath of Jurors. (Reserved. See RCW 4.44.260.)
(g) View of Premises by Jury. (Reserved. See RCW 4.44.270.)
(h) Admonitions to Jurors. (Reserved. See RCW 4.44.280.)
(i) Care of Jury While Deliberating.
(1) Generally. During trial and deliberations the jury may be allowed
to separate unless good cause is shown, on the record, for sequestration of
the jury.
(2) Communication Restricted. Unless the jury is allowed to separate,
the jurors shall be kept together under the charge of one or more officers
until they agree upon their verdict or are discharged by the court. The
officer shall keep the jurors separate from other persons and shall not
allow any communication which may affect the case to be made to the jurors,
nor make any himself, unless by order of the court, except to ask the
jurors if they have agreed upon their verdict. The officer shall not,
before the verdict is rendered, communicate to any person the state of the
jurors' deliberations or their verdict.
(3) Motions. Any motions or proceedings concerning the separation or
sequestration of the jury shall be made out of the presence of the jury.
(j) Note Taking by Jurors. In all cases, jurors shall be allowed to
take written notes regarding the evidence presented to them and keep these
notes with them during their deliberation. The court may allow jurors to
keep these notes with them in the jury room during recesses, in which case
jurors may review their own notes but may not share or discuss the notes
with other jurors until they begin deliberating. Such notes should be
treated as confidential between the jurors making them and their fellow
jurors, and shall be destroyed immediately after the verdict is rendered.
[Amended effective July 1, 1974; September 1, 1983; September 1, 1989;
April 20, 1990; amended effective October 1, 2002.]
RULE 48
JURIES OF LESS THAN TWELVE
The parties may stipulate that the jury shall consist of any number
less than 12 or that a verdict or a finding of a stated majority of the
jurors shall be taken as the verdict or finding of the jury.
RULE CR 49
VERDICTS
(-) General Verdict. A general verdict is that by which the
jury pronounces generally upon all or any of the issues in favor
of either the plaintiff or defendant.
(a) Special Verdict. The court may require a jury to return
only a special verdict in the form of a special written finding
upon each issue of fact. In that event the court may submit to the
jury written questions susceptible of categorical or other brief
answer or may submit written forms of the several special findings
which might properly be made under the pleadings and evidence; or
it may use such other method of submitting the issues and
requiring the written findings thereon as it deems most
appropriate. The court shall give to the jury such explanation and
instruction concerning the matter thus submitted as may be
necessary to enable the jury to make its findings upon each issue.
If in so doing the court omits any issue of fact raised by the
pleadings or by the evidence, each party waives his rights to a
trial by jury of the issue so omitted unless before the jury
retires he demands its submission to the jury. As to an issue
omitted without such demand the court may make a finding; or, if
it fails to do so, it shall be deemed to have made a finding in
accord with the judgment on the special verdict.
(b) General Verdict Accompanied by Answer to Interrogatories.
The court may submit to the jury, together with appropriate forms
for a general verdict, written interrogatories upon one or more
issues of fact the decision of which is necessary to a verdict.
The court shall give such explanation or instruction as may be
necessary to enable the jury both to make answers to the
interrogatories and to render a general verdict, and the court
shall direct the jury both to make written answers and to render a
general verdict. When the general verdict and the answers are
harmonious, the appropriate judgment upon the verdict and answers
shall be entered pursuant to rule 58. When the answers are
consistent with each other but one or more is inconsistent with
the general verdict, judgment may be entered pursuant to rule 58
in accordance with the answers, notwithstanding the general
verdict, or the court may return the jury for further
consideration of its answers and verdict or may order a new trial.
When the answers are inconsistent with each other and one or more
is likewise inconsistent with the general verdict, judgment shall
not be entered, but the court shall return the jury for further
consideration of its answers and verdict or shall order a new
trial.
(c) Discharge of Jury.
(1) Without Verdict. (Reserved. See RCW 4.44.330.)
(2) Effect of Discharge. (Reserved. See RCW 4.44.340.)
(d) Court Recess During Deliberation. (Reserved. See RCW
4.44.350.)
(e) Proceedings When Jurors Have Agreed. (Reserved. See RCW
4.44.360.)
(f) Manner of Giving Verdict. (Reserved. See RCW 4.44.370.)
(g) Ten Jurors in Civil Cases. (Reserved. See RCW 4.44.380.)
(h) Jury May Be Polled. (Reserved. See RCW 4.44.390.)
(i) Correction of Informal Verdict. (Reserved. See RCW
4.44.400.)
(j) Jury To Assess Amount of Recovery. (Reserved. See RCW
4.44.450.)
(k) Receiving Verdict and Discharging Jury. (Reserved. See RCW
4.44.460.)
(l) Any Juror Verdict. When a jury decides a verdict, any
juror may vote on any of the questions posed. It is not necessary
that the same ten jurors agree on every answer, as long as each
answer is agreed to by any ten or more jurors.
[Adopted July 1, 1967; amended effective September 1, 2001.]]
RULE CR 50
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.
(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.
(b) Renewing Motion for Judgment After Trial; Alternative Motion for
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) Alternative Motions for Judgment as a Matter of Law or for a New
Trial--Effect of Appeal. Whenever a motion for a judgment as a matter of
law and, in the alternative, for a new trial shall be filed and submitted
in any superior court in any civil cause tried before a jury, and such
superior court shall enter an order granting such motion for judgment as a
matter of law, such court shall at the same time, in the alternative, pass
upon and decide in the same order such motion for a new trial; such ruling
upon said motion for a new trial not to become effective unless and until
the order granting the motion for judgment as a matter of law shall
thereafter be reversed, vacated, or set aside in the manner provided by
law. An appeal to the Supreme Court or Court of Appeals from a judgment
granted on a motion for judgment as a matter of law shall, of itself,
without the necessity of cross appeal, bring up for review the ruling of
the trial court on the motion for a new trial; and the appellate court
shall, if it reverses the judgment entered as a matter of law, review and
determine the validity of the ruling on the motion for a new trial.
(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.
[Amended effective January 1, 1977; July 1, 1980; September 1, 1984;
September 17, 1993; September 1, 2005.]
RULE CR 51
INSTRUCTIONS TO JURY AND DELIBERATION
(a) Proposed. Unless otherwise requested by the trial judge on timely
notice to counsel, proposed instructions shall be submitted when the case
is called for trial. Proposed instructions upon questions of law developed
by the evidence, which could not reasonably be anticipated, may be
submitted at any time before the court has instructed the jury.
(b) Submission. Submission of proposed instructions shall be by
delivering the original and three or more copies as required by the trial
judge, by filing one copy with the clerk, identified as the party's
proposed instructions, and by serving one copy upon each opposing counsel.
(c) Form. Each proposed instruction shall be typewritten or printed on
a separate sheet of letter-size (8-1/2 by 11 inches) paper. Except for one
copy of each, the instructions delivered to the trial court shall not be
numbered or identified as to the proposing party. One copy delivered to the
trial court, and the copy filed with the clerk, and copies served on each
opposing counsel shall be numbered and identified as to proposing party,
and may contain supporting annotations.
(d) Published Instructions.
(1) Request. Any instruction appearing in the Washington Pattern
Instructions (WPI) may be requested by counsel who must submit the proper
number of copies of the requested instruction, identified by number as in
section (c) of this rule, in the form he wishes it read to the jury. If the
instruction in WPI allows or provides for a choice of wording by the use of
brackets or otherwise, the written requested instruction shall use the
choice of wording which is being requested.
(2) Record on Review. Where the refusal to give a requested instruction
is an asserted error on review, a copy of the requested instruction shall
be placed in the record on review.
(3) Local Option. Any superior court may adopt a local rule to
substitute for subsection (d)(1) and to allow instructions appearing in the
Washington Pattern Instructions (WPI) to be requested by reference to the
published number. If the instruction in WPI allows or provides for a choice
of wording by the use of brackets or otherwise, the local rule must require
that the written request which designates the number of the instruction
shall also designate the choice of wording which is being requested.
(e) Disregarding Requests. The trial court may disregard any proposed
instruction not submitted in accordance with this rule.
(f) Objections to Instruction. Before instructing the jury, the court
shall supply counsel with copies of its proposed instructions which shall
be numbered. Counsel shall then be afforded an opportunity in the absence
of the jury to make objections to the giving of any instruction and to the
refusal to give a requested instruction. The objector shall state
distinctly the matter to which he objects and the grounds of his objection,
specifying the number, paragraph or particular part of the instruction to
be given or refused and to which objection is made.
(g) Instructing the Jury and Argument. After counsel have completed
their objections and the court has made any modifications deemed
appropriate, the court shall then provide each counsel with a copy of the
instructions in their final form. The court shall then read the
instructions to the jury. The plaintiff or party having the burden of proof
may then address the jury upon the evidence, and the law as contained in
the courts instructions; after which the adverse party may address the
jury; followed by the rebuttal of the party first addressing the jury.
(h) Deliberation. After argument, the jury shall retire to consider its
verdict. In addition to the written instructions given, the jury shall take
with it all exhibits received in evidence, except depositions. Copies may
be substituted for any parts of public records or private documents as
ought not, in the opinion of the court, to be taken from the person having
them in possession. Pleadings shall not go to the jury room.
(i) Questions from Jury During Deliberations. The jury shall be
instructed that any question it wishes to ask the court about the
instructions or evidence should be signed, dated and submitted in writing
to the bailiff without any indication of the status of the jury’s
deliberations. The court shall notify the parties of the contents of the
questions and provide them an opportunity to comment upon an appropriate
response. Written questions from the jury, the court’s response and any
objections thereto shall be made a part of the record. The court shall
respond to all questions from a deliberating jury in open court or in
writing. In its discretion, the court may grant a jury’s request to rehear
or replay evidence, but should do so in a way that is least likely to be
seen as a comment on the evidence, in a way that is not unfairly
prejudicial and in a way that minimizes the possibility that jurors will
give undue weight to such evidence. Any additional instruction upon any
point of law shall be given in writing.
(j) Comments Upon Evidence. Judges shall not instruct with respect to
matters of fact, nor comment thereon.
[Amended effective November 3, 1967; March 29, 1968; January 1, 1977;
amended effective October 1, 2002.]
RULE CR 52
DECISIONS, FINDINGS AND CONCLUSIONS
(a) Requirements.
(1) Generally. In all actions tried upon the facts without a jury or
with an advisory jury, the court shall find the facts specially and state
separately its conclusions of law. Judgment shall be entered pursuant to
rule 58 and may be entered at the same time as the entry of the findings of
fact and the conclusions of law.
(2) Specifically Required. Without in any way limiting the requirements
of subsection (1), findings and conclusions are required:
(A) Temporary injunctions. In granting or refusing temporary injunctions.
(B) Domestic relations. In connection with all final decisions in
adoption, custody, and divorce proceedings, whether heard ex parte or not.
In all cases in which the court makes specific findings of physical or
sexual abuse or exploitation of a child the court shall direct the court
clerk to notify the state patrol of the findings pursuant to RCW 43.43.840.
(C) Other. In connection with any other decision where findings and
conclusions are specifically required by statute, by another rule, or by a
local rule of the superior court.
(3) Proposed. Requests for proposed findings of fact are not necessary
for review.
(4) Form. If a written opinion or memorandum of decision is filed, it
will be sufficient if formal findings of fact and conclusions of law are included.
(5) When Unnecessary. Findings of fact and conclusions of law are not necessary:
(A) Stipulation. Where all parties stipulate in writing that there will
be no appeal.
(B) Decision on motions. On decisions of motions under rules 12 or 56
or any other motion, except as provided in rules 41(b)(3) and 55(b)(2).
(C) Temporary restraining orders. On the issuance of temporary
restraining orders issued ex parte.
(b) Amendment of Findings. Upon motion of a party filed not later than
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 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) Presentation. Unless an emergency is shown to exist, or a party has
failed to appear at a hearing or trial, the court shall not sign findings
of fact or conclusions of law until the defeated party or parties have
received 5 days' notice of the time and place of the submission, and have
been served with copies of the proposed findings and conclusions. Persons
who have failed to appear at a hearing or trial after notice, may, in the
discretion of the trial court, be deemed to have waived their right to
notice of presentation or previous review of the proposed findings and conclusions.
(d) Judgment Without Findings, etc. A judgment entered in a case tried
to the court where findings are required, without findings of fact having
been made, is subject to a motion to vacate within the time for the taking
of an appeal. After vacation, the judgment shall not be reentered until
findings are entered pursuant to this rule.
(e) Time Limit for Decision. (Reserved. See RCW 2.08.240.)
[Amended effective September 1, 1985; January 1, 1988; September 1, 2005.]
RULE 53
MASTERS
(RESERVED)
RULE 53.1
REFEREES
(a) Referees--Definition and Powers. (Reserved. See RCW 2.24.060.)
(b) Reference by Consent--Right to Jury Trial. (Reserved. See RCW
4.48.010.)
(c) Reference Without Consent. (Reserved. See RCW 4.48.020.)
(d) To Whom Reference May Be Ordered. (Reserved. See RCW 4.48.030.)
(e) Qualifications of Referees. (Reserved. See RCW 4.48.040.)
(f) Challenges to Referees. (Reserved. See RCW 4.48.050.)
(g) Trial Procedure--Powers of Referee. (Reserved. See RCW 4.48.060.)
(h) Referee's Report--Contents--Evidence, Filing of, Frivolous.
(Reserved. See RCW 4.48.070.)
(i) Proceedings on Filing of Report. (Reserved. See RCW 4.48.080.)
(j) Judgment on Referees Report. (Reserved. See RCW 4.48.090.)
(k) Fees of Referees. (Reserved. See RCW 4.48.100.)
RULE 53.2
COURT COMMISSIONERS
(a) Appointment of Court Commissioners--Qualifications--Term of Office.
(Reserved. See RCW 2.24.010.)
(b) Oath. (Reserved. See RCW 2.24.020.)
(c) Salary. (Reserved. See RCW 2.24.030.)
(d) Powers of Commissioners--Fees. (Reserved. See RCW 2.24.040.)
(e) Revision by Court. (Reserved. See RCW 2.24.050.)
RULE 53.3
APPOINTMENT OF MASTERS IN DISCOVERY MATTERS
(a) Appointment. The court in which any action is pending may appoint a
special master either to preside at depositions or to adjudicate discovery
disputes, or both. Such appointment may be made, for good cause shown, upon
the request of any party in pending litigation or upon the court's own
motion.
(b) Qualifications. The master shall be a lawyer admitted to practice
in the state of Washington.
(c) Compensation. The compensation of the master shall be fixed by the
court. Payment of the master's compensation shall be charged to such of the
parties or paid out of such other available funds as the court shall
direct, but in determining payment of compensation the court shall take
into account the relative financial resources of the parties and such other
factors as the court deems appropriate.
(d) Powers. The order of reference to the master may specify the duties
of the master. It may direct that the master preside at depositions and
make rulings on issues arising at the depositions. It may direct the master
to hear and report to the court on unresolved discovery disputes and to
make recommendations as to the resolution of such disputes, as to the
imposition of terms or sanctions to be assessed against any party, and as
to which party or parties shall bear the costs of the master. If directed
by the court, the master shall prepare a report upon the matters submitted
to the master by the order of reference. A party may request that the
report be sealed pursuant to rule 26(c). The report with the rulings and
recommendations of the master shall be reviewed by the court and may be
adopted or revised as the court deems just.
CR 53.4
PROCEDURES FOR MANDATORY MEDIATION OF HEALTH CARE
CLAIMS
(a) Scope of Rule. This rule governs the procedure in the superior court
in all claims subject to mandatory mediation under RCW 7.70.100 and
.110.
(b) Voluntary Mediation. The parties may establish a procedure for
mediation that differs from this rule provided the procedure and the
selection of the mediator are agreed to in writing and signed by all
parties.
(c) Deadlines. Except as otherwise ordered by the court for good cause
shown, mediation under RCW 7.70.100 shall be commenced no later than
30 days before the trial date. Mediation under RCW 7.70.110 shall be
commenced no later than 90 days after the selection of the mediator.
(d) Waiver of Mediation. Upon petition of any party that mediation is not
appropriate, the court shall order or the mediator may determine that
the claim is not appropriate for mediation.
(e) Appointment of Mediator. Subject to the conditions in this section,
the court shall designate a mediator from the register described in
section (g) upon the request of any party. Except upon stipulation in
writing signed by all parties, the court shall not make this
designation if the parties have agreed in writing to the selection of
a mediator as contemplated by section (b) or have obtained a waiver
of mediation under section (d). Except upon stipulation in writing
signed by all parties, the court shall designate a mediator no sooner
than 180 days before trial, or for mediation requested under RCW
7.70.100, no sooner than 180 days after the good faith request for
mediation.
(f) Mediation Procedure. Promptly upon the designation of a mediator, the
plaintiff shall arrange a conference call among the mediator and
counsel for each party to discuss the procedural aspects of the
mediation. Except to the extent the mediator directs otherwise, the
following procedures shall apply:
(1) Copy of Pleadings. Upon selection of a mediator, the parties
shall provide the mediator with copies of the relevant
Pleadings.
(2) Notice of Time and Place. The mediator shall fix a time and
place for the mediation conference, and all subsequent sessions,
that is reasonably convenient for the parties and shall give
them at least 14 days' written notice of the initial conference.
In giving notice the mediator may use a form provided by the
court.
(3) Memoranda. Each party shall provide the mediator with a
confidential memorandum presenting in concise form its
contentions relative to both liability and damages. This
memorandum shall not exceed 10 pages in length. A copy of the
memorandum shall be delivered to the mediator at least seven
days before the mediation conference. Any party may deliver a
copy of his or her memorandum to any other party. In addition,
each party shall deliver to the mediator a confidential
statement of its current offer or demand. Any party may deliver
a copy of his or her statement to any other party.
(4) Attendance and Preparation Required. The attorney who is
primarily responsible for each party's case shall personally
attend the mediation conference and any subsequent sessions of
that conference. The attorney for each party shall come prepared
to discuss the following matters in detail and in good faith:
(A) All liability issues.
(B) All damage issues.
(C) The position, of his or her client relative to settlement.
(5) Attendance of Parties and Insurers. For purposes of this
section, "insurer" shall include "self insurer." In addition to
counsel, all parties and insurers shall attend the mediation in
person. In the event a party defendant has provided his or her
insurer with full authority to settle, such party's attendance
is optional. The mediator may also, at his or her discretion,
but only in exceptional cases, excuse a party or insurer from
personally attending the mediation conference. Those excused
from personal attendance by the mediator shall be on call by
telephone during the conference.
(6) Failure to Attend. Willful or negligent failure to attend the
mediation conference, or to comply with this rule or with the
directions of the mediator, shall be reported to the court by
the mediator in writing and may result in the imposition of such
sanctions as the court may find appropriate.
(7) Proceedings Privileged. All proceedings of the mediation
conference, including any statement made by any party, attorney
or other participant, shall, in all respects, be privileged and
not reported, recorded, placed in evidence, used for
impeachment, made known to the trial court or jury, or construed
for any purpose as an admission. No party shall be bound by
anything done or said at the conference unless a settlement is
reached, in which event the agreement upon a settlement shall be
reduced to writing and shall be binding upon all parties to that
agreement.
(8) Mediator's Suggestions. The mediator shall have no obligation to
make any written comments or recommendations, but may in his or
her discretion provide the parties or their counsel with a
confidential written settlement recommendation memorandum, but
only if all parties agree. No copy of any such memorandum shall
be filed with the clerk or made available, in whole or in part,
directly or indirectly, either to the court or to the jury.
(9) Certification of Mediation. Not more than 10 days after the
mediation concludes or the mediator determines that the claim is
not appropriate for mediation, the parties shall certify in
writing to the court the manner of mediation, if any, and
compliance with the provisions of this rule.
(g) Register of Volunteer Mediators.
(1) Court to Maintain Register. The court shall establish and
maintain a register of qualified attorneys who have volunteered
to serve as mediators. The attorneys so registered shall be
selected by the court from lists of qualified attorneys at law
who are current members in good standing of the Washington State
Bar Association.
(2) Qualifications. In order to qualify as a mediator, an attorney
shall:
(A) Have been a member of the Washington State Bar Association
for at least five years; and
(B) Have experience or expertise related to litigating actions
arising from injury occurring as a result of health care;
and
(C) Have 6 hours of CLE mediator training and acted as a
mediator in at least 10 cases, three of which were medical
malpractice; or
(D) Be a retired judge having experience or expertise related
to actions arising from injury occurring as a result of
health care and satisfy the requirements of (2)(C) herein.
131 Wn.2d 104-266, 1101, [Effective March 11, 1997; amended September 1,
2007.]
RULE 54
JUDGMENTS AND COSTS
(a) Definitions.
(1) Judgment. A judgment is the final determination of the rights of
the parties in the action and includes any decree and order from
which an appeal lies. A judgment shall be in writing and signed
by the judge and filed forthwith as provided in rule 58.
(2) Order. Every direction of a court or judge, made or entered in
writing, not included in a judgment, is denominated an order.
(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more
than one claim for relief is presented in an action, whether as a
claim, counterclaim, cross claim, or third party claim, or when
multiple parties are involved, the court may direct the entry of a
final judgment as to one or more but fewer than all of the claims or
parties only upon an express determination in the judgment, supported
by written findings, that there is no just reason for delay and upon
an express direction for the entry of judgment. The findings may be
made at the time of entry of judgment or thereafter on the courts own
motion or on motion of any party. In the absence of such findings,
determination and direction, any order or other form of decision,
however designated, which adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties shall not
terminate the action as to any of the claims or parties, and the order
or other form of decision is subject to revision at any time before
the entry of judgment adjudicating all the claims and the rights and
liabilities of all the parties.
(c) Demand for Judgment. A judgment by default shall not be different in
kind from or exceed in amount that prayed for in the demand for
judgment. Except as to a party against whom a judgment is entered by
default, every final judgment shall grant the relief to which the
party in whose favor it is rendered is entitled, even if the party has
not demanded such relief in his pleadings.
(d) Costs, Disbursements, Attorney's Fees, and Expenses.
(1) Costs and Disbursements. Costs and disbursements shall be fixed
and allowed as provided in RCW 4.84 or by any other applicable
statute. If the party to whom costs are awarded does not file a cost
bill or an affidavit detailing disbursements within 10 days after the
entry of the judgment, the clerk shall tax costs and disbursements
pursuant to CR 78(e).
(2) Attorney's Fees and Expenses. Claims for attorney's fees and
expenses, other than costs and disbursements, shall be made by motion
unless the substantive law governing the action provides for the
recovery of such fees and expenses as an element of damages to be
proved at trial. Unless otherwise provided by statute or order of the
court, the motion must be filed no later than 10 days after entry of
judgment.
(e) Preparation of Order or Judgment. The attorney of record for the
prevailing party shall prepare and present a proposed form of order or
judgment not later than 15 days after the entry of the verdict or
decision, or at any other time as the court may direct. Where the
prevailing party is represented by an attorney of record, no order or
judgment may be entered for the prevailing party unless presented or
approved by the attorney of record. If both the prevailing party and
his attorney of record fail to prepare and present the form of order
or judgment within the prescribed time, any other party may do so,
without the approval of the attorney of record of the prevailing party
upon notice of presentation as provided in subsection (f)(2).
(f) Presentation.
(1) Time. Judgments may be presented at the same time as the findings
of fact and conclusions of law under rule 52.
(2) Notice of Presentation. No order or judgment shall be signed or
entered until opposing counsel have been given 5 days' notice of
presentation and served with a copy of the proposed order or
judgment unless:
(A) Emergency. An emergency is shown to exist.
(B) Approval. Opposing counsel has approved in writing the entry
of the proposed order or judgment or waived notice of
presentation.
(C) After verdict, etc. If presentation is made after entry of
verdict or findings and while opposing counsel is in open
court.
[Amended effective September 1, 1989; September 1, 2007.]
RULE 55
DEFAULT AND JUDGMENT
(a) Entry of Default.
(1) Motion. When a party against whom a judgment for affirmative relief
is sought has failed to appear, plead, or otherwise defend as provided by
these rules and that fact is made to appear by motion and affidavit, a
motion for default may be made.
(2) Pleading After Default. Any party may respond to any pleading or
otherwise defend at any time before a motion for default and supporting
affidavit is filed, whether the party previously has appeared or not. If
the party has appeared before the motion is filed, he may respond to the
pleading or otherwise defend at any time before the hearing on the motion.
If the party has not appeared before the motion is filed he may not respond
to the pleading nor otherwise defend without leave of court. Any
appearances for any purpose in the action shall be for all purposes under
this rule 55.
(3) Notice. Any party who has appeared in the action for any purpose
shall be served with a written notice of motion for default and the
supporting affidavit at least 5 days before the hearing on the motion. Any
party who has not appeared before the motion for default and supporting
affidavit are filed is not entitled to a notice of the motion, except as
provided in rule 55(f)(2)(A).
(4) Venue. A motion for default shall include a statement of the basis
for venue in the action. A default shall not be entered if it clearly
appears to the court from the papers on file that the action was brought in
an improper county.
(b) Entry of Default Judgment. As limited in rule 54(c), judgment after
default may be entered as follows, if proof of service is on file as
required by subsection (b)(4):
(1) When Amount Certain. When the claim against a party, whose default
has been entered under section (a), is for a sum certain or for a sum which
can by computation be made certain, the court upon motion and affidavit of
the amount due shall enter judgment for that amount and costs against the
party in default, if he is not an infant or incompetent person. No judgment
by default shall be entered against an infant or incompetent person unless
represented by a general guardian or guardian ad litem. Findings of fact
and conclusions of law are not necessary under this subsection even though
reasonable attorney fees are requested and allowed.
(2) When Amount Uncertain. If, in order to enable the court to enter
judgment or to carry it into effect, it is necessary to take an account or
to determine the amount of damages or to establish the truth of any
averment by evidence or to make an investigation of any other matter, the
court may conduct such hearings as are deemed necessary or, when required
by statute, shall have such matters resolved by a jury. Findings of fact
and conclusions of law are required under this subsection.
(3) When Service by Publication or Mail. In an action where the service
of the summons was by publication, or by mail under rule 4(d)(4), the
plaintiff, upon the expiration of the time for answering, may, upon proof
of service, apply for judgment. The court must thereupon require proof of
the demand mentioned in the complaint, and must require the plaintiff or
his agent to be examined on oath respecting any payments that have been
made to the plaintiff, or to anyone for his use on account of such demand,
and may render judgment for the amount which he is entitled to recover, or
for such other relief as he may be entitled to.
(4) Costs and Proof of Service. Costs shall not be awarded and default
judgment shall not be rendered unless proof of service is on file with the
court.
(c) Setting Aside Default.
(1) Generally. For good cause shown and upon such terms as the court
deems just, the court may set aside an entry of default and, if a judgment
by default has been entered, may likewise set it aside in accordance with
rule 60(b).
(2) When Venue Is Improper. A default judgment entered in a county of
improper venue is valid but will on motion be vacated for irregularity
pursuant to rule 60(b)(1). A party who procures the entry of the judgment,
shall in the vacation proceedings, be required to pay to the party seeking
vacation the costs and reasonable attorney fees incurred by the party in
seeking vacation if the party procuring the judgment could have determined
the county of proper venue with reasonable diligence. This subsection does
not apply if either (a) the parties stipulate in writing to venue after
commencement of the action, or (b) the defendant has appeared, has been
given written notice of the motion for an order of default, and does not
object to venue before the entry of the default order.
(d) Plaintiffs, Counterclaimants, Cross Claimants. The provisions of
this rule apply whether the party entitled to the judgment by default is a
plaintiff, a third party plaintiff, or a party who has pleaded a cross
claim or counterclaim. In all cases a judgment by default is subject to the
limitations of rule 54(c).
(e) Judgment Against State. (Reserved.)
(f) How Made After Elapse of Year.
(1) Notice. When more than 1 year has elapsed after service of summons
with no appearance being made, the court shall not sign an order of default
or enter a judgment until a notice of the time and place of the application
for the order or judgment is served on the party in default, not less than
10 days prior to the entry. Proof by affidavit of the service of the notice
shall be filed before entry of the judgment.
(2) Service. Service of notice of the time and place on the application
for the order of default or default judgment shall be made as follows:
(A) by service upon the attorney of record;
(B) if there is no attorney of record, then by service upon the
defendant by certified mail with return receipt of said service to be
attached to the affidavit in support of the application; or
(C) by a personal service upon the defendant in the same manner
provided for service of process.
(D) If service of notice cannot be made under subsections (A) and (C),
the notice may be given by publication in a newspaper of general
circulation in the county in which the action is pending for one
publication, and by mailing a copy to the last known address of each
defendant. Both the publication and mailing shall be done 10 days prior to
the hearing.
RULE 56
SUMMARY JUDGMENT
(a) For Claimant. A party seeking to recover upon a claim,
counterclaim, or cross claim, or to obtain a declaratory judgment may,
after the expiration of the period within which the defendant is required
to appear, or after service of a motion for summary judgment by the adverse
party, move with or without supporting affidavits for a summary judgment in
his favor upon all or any part thereof.
(b) For Defending Party. A party against whom a claim, counterclaim, or
cross claim is asserted or a declaratory judgment is sought may move with
or without supporting affidavits for a summary judgment in his favor as to
all or any part thereof.
(c) Motion and Proceedings. The motion and any supporting affidavits,
memoranda of law, or other documentation shall be filed and served not
later than 28 calendar days before the hearing. The adverse party may file
and serve opposing affidavits, memoranda of law or other documentation not
later than 11 calendar days before the hearing. The moving party may file
and serve any rebuttal documents not later than 5 calendar days prior to
the hearing. If the date for filing either the response or rebuttal falls
on a Saturday, Sunday, or legal holiday, then it shall be filed and served
not later than the next day nearer the hearing which is neither a Saturday,
Sunday, or legal holiday. Summary judgment motions shall be heard more than
14 calendar days before the date set for trial unless leave of court is
granted to allow otherwise. Confirmation of the hearing may be required by
local rules. The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment
as a matter of law. A summary judgment, interlocutory in character, may be
rendered on the issue of liability alone although there is a genuine issue
as to the amount of damages.
(d) Case Not Fully Adjudicated on Motion. If on motion under the rule
judgment is not rendered upon the whole case or for all the relief asked
and a trial is necessary, the court at the hearing of the motion, by
examining the pleadings and the evidence before it and by interrogating
counsel, shall if practicable ascertain what material facts exist without
substantial controversy and what material facts are actually and in good
faith controverted. It shall thereupon make an order specifying the facts
that appear without substantial controversy, including the extent to which
the amount of damages or other relief is not in controversy, and directing
such further proceedings in the action as are just. Upon the trial of the
action, the facts so specified shall be deemed established, and the trial
shall be conducted accordingly.
(e) Form of Affidavits; Further Testimony; Defense Required. Supporting
and opposing affidavits shall be made on personal knowledge, shall set
forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters
stated therein. Sworn or certified copies of all papers or parts thereof
referred to in an affidavit shall be attached thereto or served therewith.
The court may permit affidavits to be supplemented or opposed by
depositions, answers to interrogatories, or further affidavits. When a
motion for summary judgment is made and supported as provided in this rule,
an adverse party may not rest upon the mere allegations or denials of his
pleading, but his response, by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a genuine issue
for trial. If he does not so respond, summary judgment, if appropriate,
shall be entered against him.
(f) When Affidavits Are Unavailable. Should it appear from the
affidavits of a party opposing the motion that he cannot, for reasons
stated, present by affidavit facts essential to justify his opposition, the
court may refuse the application for judgment or may order a continuance to
permit affidavits to be obtained or depositions to be taken or discovery to
be had or may make such other order as is just.
(g) Affidavits Made in Bad Faith. Should it appear to the satisfaction
of the court at any time that any of the affidavits presented pursuant to
this rule are presented in bad faith or solely for the purpose of delay,
the court shall forthwith order the party employing them to pay to the
other party the amount of the reasonable expenses which the filing of the
affidavits caused him to incur, including reasonable attorney fees, and any
offending party or attorney may be adjudged guilty of contempt.
(h) Form of Order. The order granting or denying the motion for summary
judgment shall designate the documents and other evidence called to the
attention of the trial court before the order on summary judgment was
entered.
RULE 57
DECLARATORY JUDGMENTS
The procedure for obtaining a declaratory judgment pursuant to the
Uniform Declaratory Judgments Act, RCW 7.24, shall be in accordance with
these rules, and the right to trial by jury may be demanded under the
circumstances and in the manner provided in rules 38 and 39. The existence
of another adequate remedy does not preclude a judgment for declaratory
relief in cases where it is appropriate. The court may order a speedy
hearing of an action for a declaratory judgment and may advance it on the
calendar.
RULE 58
ENTRY OF JUDGMENT
(a) When. Unless the court otherwise directs and subject to the
provisions of rule 54(b), all judgments shall be entered immediately after
they are signed by the judge.
(b) Effective Time. Judgments shall be deemed entered for all
procedural purposes from the time of delivery to the clerk for filing,
unless the judge earlier permits the judgment to be filed with him as
authorized by rule 5(e).
(c) Notice of Entry. (Reserved. See rule 54(f).)
(d) (Reserved.)
(e) Judgment by Confession. (Reserved. See RCW 4.60.)
(f) Assignment of Judgment. (Reserved. See RCW 4.56.090.)
(g) Interest on Judgment. (Reserved. See RCW 4.56.110.)
(h) Satisfaction of Judgment. (Reserved. See RCW 4.56.100.)
(i) Lien of Judgment. (Reserved. See RCW 4.56.190.)
(j) Commencement of Lien on Real Estate. (Reserved. See RCW 4.56.200.)
(k) Cessation of Lien--Extension Prohibited. (Reserved. See RCW
4.56.210.)
(l) Revival of Judgments. (Reserved.)
RULE CR 59
NEW TRIAL, RECONSIDERATION, AND AMENDMENT
OF JUDGMENTS
(a) Grounds for New Trial or Reconsideration. On the motion of the
party aggrieved, a verdict may be vacated and a new trial granted to all or
any of the parties, and on all issues, or on some of the issues when such
issues are clearly and fairly separable and distinct, 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 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
on affidavits, they shall be filed with the motion. The opposing party has
10 days after service to file opposing affidavits, but that period may be
extended for up to 20 days, either by the court for good cause or by the
parties' written stipulation. The court may permit reply affidavits.
(d) On Initiative of Court. Not later than 10 days after entry of
judgment, the court 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. After giving the parties notice
and 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 filed, the judge by whom it is to be heard may on 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 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 filed not later than 10 days after entry of the judgment.
(i) Alternative Motions, etc. Alternative motions for judgment 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 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)
pursuant to sections (g), (h), and (i) of this rule, or (3) under rule 52(b).
[Amended effective July 1, 1980; September 1, 1984; September 1, 1989; September 1, 2005.]
RULE 60
RELIEF FROM JUDGMENT OR ORDER
(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other
parts of the record and errors therein arising from oversight or omission
may be corrected by the court at any time of its own initiative or on the
motion of any party and after such notice, if any, as the court orders.
Such mistakes may be so corrected before review is accepted by an appellate
court, and thereafter may be corrected pursuant to RAP 7.2(e).
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered
Evidence; Fraud; etc. On motion and upon such terms as are just, the court
may relieve a party or his legal representative from a final judgment,
order, or proceeding for the following reasons:
(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity
in obtaining a judgment or order;
(2) For erroneous proceedings against a minor or person of unsound
mind, when the condition of such defendant does not appear in the record,
nor the error in the proceedings;
(3) Newly discovered evidence which by due diligence could not have
been discovered in time to move for a new trial under rule 59(b);
(4) Fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party;
(5) The judgment is void;
(6) The judgment has been satisfied, released, or discharged, or a
prior judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment should have
prospective application;
(7) If the defendant was served by publication, relief may be granted
as prescribed in RCW 4.28.200;
(8) Death of one of the parties before the judgment in the action;
(9) Unavoidable casualty or misfortune preventing the party from
prosecuting or defending;
(10) Error in judgment shown by a minor, within 12 months after
arriving at full age; or
(11) Any other reason justifying relief from the operation of the
judgment.
The motion shall be made within a reasonable time and for reasons (1),
(2) or (3) not more than 1 year after the judgment, order, or proceeding
was entered or taken. If the party entitled to relief is a minor or a
person of unsound mind, the motion shall be made within 1 year after the
disability ceases. A motion under this section (b) does not affect the
finality of the judgment or suspend its operation.
(c) Other Remedies. This rule does not limit the power of a court to
entertain an independent action to relieve a party from a judgment, order,
or proceeding.
(d) Writs Abolished--Procedure. Writs of coram nobis, coram vobis,
audita querela, and bills of review and bills in the nature of a bill of
review are abolished. The procedure for obtaining any relief from a
judgment shall be by motion as prescribed in these rules or by an
independent action.
(e) Procedure on Vacation of Judgment.
(1) Motion. Application shall be made by motion filed in the cause
stating the grounds upon which relief is asked, and supported by the
affidavit of the applicant or his attorney setting forth a concise
statement of the facts or errors upon which the motion is based, and if the
moving party be a defendant, the facts constituting a defense to the action
or proceeding.
(2) Notice. Upon the filing of the motion and affidavit, the court
shall enter an order fixing the time and place of the hearing thereof and
directing all parties to the action or proceeding who may be affected
thereby to appear and show cause why the relief asked for should not be
granted.
(3) Service. The motion, affidavit, and the order to show cause shall
be served upon all parties affected in the same manner as in the case of
summons in a civil action at such time before the date fixed for the
hearing as the order shall provide; but in case such service cannot be
made, the order shall be published in the manner and for such time as may
be ordered by the court, and in such case a copy of the motion, affidavit,
and order shall be mailed to such parties at their last known post office
address and a copy thereof served upon the attorneys of record of such
parties in such action or proceeding such time prior to the hearing as the
court may direct.
(4) Statutes. Except as modified by this rule, RCW 4.72.010-.090 shall
remain in full force and effect.
RULE 61
HARMLESS ERROR
(RESERVED)
RULE CR 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 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) Stay on Motion for New Trial or for Judgment. In its discretion and on such conditions for the
security of the adverse party as are proper, the court may stay the execution of or any proceedings to
enforce a judgment pending the disposition of a motion for a new trial or to alter or amend a judgment
made pursuant to rule 59, or of a motion for relief from a judgment or order made pursuant to rule 60, or of
a motion for judgment as a matter of law made pursuant to rule 50, or of a motion for amendment to the
findings or for additional findings made pursuant to rule 52(b).
(c) Injunction Pending appeal. [Rescinded.]
(d) Stay Upon Appeal. [Rescinded.]
(e) Stay in Favor of State. [Rescinded.)
(f) Other Stays. This rule does not limit the right of a party to a stay otherwise provided by statute or rule.
(g) Power of Supreme Court Not Limited. [Rescinded.]
(h) Multiple Claims or Multiple Parties. When a court has ordered a final judgment under the
conditions stated in rule 54(b), the court may stay enforcement of that judgment until the entering of a
subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the
benefit thereof to the party in whose favor the judgment is entered.
[Amended effective July 1, 1976; January 1, 1977; September 1, 1990; September 1, 2005; January 8, 2013.]
RULE 63
JUDGES
(a) Powers. See rule 77.
(b) Disability of a Judge. If by reason of death, sickness, or other
disability, a judge before whom an action has been tried is unable to
perform the duties to be performed by the court under these rules after a
verdict is returned or findings of fact and conclusions of law are filed,
then any other judge regularly sitting in or assigned to the court in which
the action was tried may perform those duties; but if such other judge is
satisfied that he cannot perform those duties because he did not preside at
the trial or for any other reason, he may in his discretion grant a new
trial.
RULE 64
SEIZURE OF PERSON OR PROPERTY
At the commencement of and during the course of an action, all remedies
providing for seizure of person or property for the purpose of securing
satisfaction of the judgment ultimately to be entered in the action are
available under the circumstances and in the manner provided by the law
existing at the time the remedy is sought. The remedies thus available
include arrest, attachment, garnishment, replevin, sequestration, and other
corresponding or equivalent remedies, however designated and regardless of
whether the remedy is ancillary to an action or must be obtained by an
independent action.
RULE 65
INJUNCTIONS
(a) Preliminary Injunction.
(1) Notice. No preliminary injunction shall be issued without notice to
the adverse party.
(2) Consolidation of Hearing With Trial on Merits. Before or after the
commencement of the hearing of an application for a preliminary injunction,
the court may order the trial of the action on the merits to be advanced
and consolidated with the hearing of the application. Even when this
consolidation is not ordered, any evidence received upon an application for
a preliminary injunction which would be admissible upon the trial on the
merits becomes part of the record on the trial and need not be repeated
upon the trial. This subsection shall be so construed and applied as to
save to the parties any rights they may have to trial by jury.
(b) Temporary Restraining Order; Notice; Hearing; Duration. A temporary
restraining order may be granted without written or oral notice to the
adverse party or his attorney only if (1) it clearly appears from specific
facts shown by affidavit or by the verified complaint that immediate and
irreparable injury, loss, or damage will result to the applicant before the
adverse party or his attorney can be heard in opposition, and (2) the
applicants attorney certifies to the court in writing the efforts, if any,
which have been made to give the notice and the reasons supporting his
claim that notice should not be required. Every temporary restraining order
granted without notice shall be endorsed with the date and hour of
issuance; shall be filed forthwith in the clerk's office and entered of
record; shall define the injury and state why it is irreparable and why the
order was granted without notice; and shall expire by its terms within such
time after entry, not to exceed 14 days, as the court fixes, unless within
the time so fixed the order, for good cause shown, is extended for a like
period or unless the party against whom the order is directed consents that
it may be extended for a longer period. The reasons for the extension shall
be entered of record. In case a temporary restraining order is granted
without notice, the motion for a preliminary injunction shall be set down
for hearing at the earliest possible time and takes precedence over all
matters except older matters of the same character; and when the motion
comes on for hearing the party who obtained the temporary restraining order
shall proceed with the application for a preliminary injunction and, if he
does not do so, the court shall dissolve the temporary restraining order.
On 2 days' notice to the party who obtained the temporary restraining order
without notice or on such shorter notice to that party as the court may
prescribe, the adverse party may appear and move its dissolution or
modification and in that event the court shall proceed to hear and
determine such motion as expeditiously as the ends of justice require.
(c) Security. Except as otherwise provided by statute, no restraining
order or preliminary injunction shall issue except upon the giving of
security by the applicant, in such sum as the court deems proper, for the
payment of such costs and damages as may be incurred or suffered by any
party who is found to have been wrongfully enjoined or restrained. No such
security shall be required of the United States or of an officer or agency
thereof. Pursuant to RCW 4.92.080 no security shall be required of the
State of Washington, municipal corporations or political subdivisions of
the State of Washington. The provisions of rule 65.1 apply to a surety upon
a bond or undertaking under this rule.
(d) Form and Scope. Every order granting an injunction and every
restraining order shall set forth the reasons for its issuance; shall be
specific in terms; shall describe in reasonable detail, and not by
reference to the complaint or other document, the act or acts sought to be
restrained; and is binding only upon the parties to the action, their
officers, agents, servants, employees, and attorneys, and upon those
persons in active concert or participation with them who receive actual
notice of the order by personal service or otherwise.
(e) Statutes. These rules are intended to supplement and not to modify
any statute prescribing the basis for obtaining injunctive relief. These
rules shall prevail over statutes if there are procedural conflicts.
RULE 65.1
SECURITY--PROCEEDINGS AGAINST SURETIES
Whenever these rules require or permit the giving of security by a
party, and security is given in the form of a bond or stipulation or other
undertaking with one or more sureties, each surety submits himself to the
jurisdiction of the court and irrevocably appoints the clerk of the court
as his agent upon whom any papers affecting his liability on the bond or
undertaking may be served. His liability may be enforced on motion without
the necessity of an independent action. The motion and such notice of the
motion as the court prescribes may be served on the clerk of the court, who
shall forthwith mail copies to the sureties if their addresses are known.
RULE CR 66
RECEIVERSHIP PROCEEDINGS
[RESERVED. See RCW ch 7.60.]
[Adopted effective July 1, 1967; amended effective September 1, 2006.]
RULE 67
DEPOSIT IN COURT
In an action in which any part of the relief sought is a judgment for a
sum of money or the disposition of a sum of money or the disposition of any
other thing capable of delivery, a party, upon notice to every other party,
and by leave of court, may deposit with the court all or any part of such
sum or thing, whether or not that party claims all or any part of the sum
or thing. The party making the deposit shall serve the order permitting
deposit on the clerk of the court. Money paid into court under this rule
shall be deposited and withdrawn in accordance with the provisions of RCW
4.44.480 through 4.44.500 or any like statute or rule.
RULE 68
OFFER OF JUDGMENT
At any time more than 10 days before the trial begins, a party
defending against a claim may serve upon the adverse party an offer to
allow judgment to be taken against him for the money or property or to the
effect specified in his offer, with costs then accrued. If within 10 days
after the service of the offer the adverse party serves written notice that
the offer is accepted, either party may then file the offer and notice of
acceptance together with proof of service thereof and thereupon the court
shall enter judgment. An offer not accepted shall be deemed withdrawn and
evidence thereof is not admissible except in a proceeding to determine
costs. If the judgment finally obtained by the offeree is not more
favorable than the offer, the offeree must pay the costs incurred after the
making of the offer. The fact that an offer is made but not accepted does
not preclude a subsequent offer. When the liability of one party to another
has been determined by verdict or order or judgment, but the amount or
extent of the liability remains to be determined by further proceedings,
the party adjudged liable may make an offer of judgment, which shall have
the same effect as an offer made before trial if it is served within a
reasonable time not less than 10 days prior to the commencement of hearings
to determine the amount or extent of liability.
RULE 69
EXECUTION
(a) Procedure. The procedure on execution, in proceedings supplementary
to and in aid of a judgment, and in proceedings on and in aid of execution
shall be in accordance with the practice and procedure of the State as
authorized in RCW 6.13, 6.15, 6.17, 6.19, 6.21, 6.23, 6.32, 6.36, and any
other applicable statutes.
(b) Supplemental Proceedings. In aid of the judgment or execution, the
judgment creditor or his successor in interest when that interest appears
of record, may examine any person, including the judgment debtor, in the
manner provided in these rules for taking depositions or in the manner
provided by RCW 6.32.
RULE 70
JUDGMENT FOR SPECIFIC ACTS; VESTING TITLE
If a judgment directs a party to execute a conveyance of land or to
deliver deeds or other documents or to perform any other specific act and
the party fails to comply within the time specified, the court may direct
the act to be done at the cost of the disobedient party by some other
person appointed by the court and the act when so done has like effect as
if done by the party. On application of the party entitled to performance,
the clerk shall issue a writ of attachment or sequestration against the
property of the disobedient party to compel obedience to the judgment. The
court may also in proper cases adjudge the party in contempt. If real or
personal property is within the state, the court in lieu of directing a
conveyance thereof may enter a judgment divesting the title of any party
and vesting it in others and such judgment has the effect of a conveyance
executed in due form of law. When any order or judgment is for the delivery
of possession, the party in whose favor it is entered is entitled to a writ
of execution or assistance upon application to the clerk.
CR 70.1
APPEARANCE BY ATTORNEY
(a) Notice of Appearance. An attorney admitted to practice in
this state may appear for a party by serving a notice of
appearance.
(b) Notice of Limited Appearance. If specifically so stated in a
notice of limited appearance filed and served prior to or
simultaneous with the proceeding, an attorney’s role may be
limited to one or more individual proceedings in the action.
Service on an attorney who has made a limited appearance for a
party shall be valid (to the extent permitted by statute and rule
5(b)) only in connection with the specific proceedings for which
the attorney has appeared, including any hearing or trial at
which the attorney appeared and any subsequent motions for
presentation of orders. At the conclusion of such proceedings the
attorney’s role terminates without the necessity of leave of
court, upon the attorney filing notice of completion of limited
appearance which notice shall include the client information
required by rule 71(c)(1).
[Effective October 29, 2002.]
RULE 71
WITHDRAWAL BY ATTORNEY
(a) Withdrawal by Attorney. Service on an attorney who has appeared for
a party in a civil proceeding shall be valid to the extent permitted by
statute and rule 5(b) only until the attorney has withdrawn in the manner
provided in sections (b), (c), and (d). Nothing in this rule defines the
circumstances under which a withdrawal might be denied by the court.
(b) Withdrawal by Order. A court appointed attorney may not withdraw
without an order of the court. The client of the withdrawing attorney must
be given notice of the motion to withdraw and the date and place the motion
will be heard.
(c) Withdrawal by Notice. Except as provided in sections (b) and (d),
an attorney may withdraw by notice in the manner provided in this section.
(1) Notice of Intent To Withdraw. The attorney shall file and serve a
Notice of Intent To Withdraw on all other parties in the proceeding. The
notice shall specify a date when the attorney intends to withdraw, which
date shall be at least 10 days after the service of the Notice of Intent To
Withdraw. The notice shall include a statement that the withdrawal shall be
effective without order of court unless an objection to the withdrawal is
served upon the withdrawing attorney prior to the date set forth in the
notice. If notice is given before trial, the notice shall include the date
set for trial. The notice shall include the names and last known addresses
of the persons represented by the withdrawing attorney, unless disclosure
of the address would violate the Rules of Professional Conduct, in which
case the address may be omitted. If the address is omitted, the notice must
contain a statement that after the attorney withdraws, and so long as the
address of the withdrawing attorney's client remains undisclosed and no new
attorney is substituted, the client may be served by leaving papers with
the clerk of the court pursuant to rule 5(b)(1).
(2) Service on Client. Prior to service on other parties, the Notice of
Intent To Withdraw shall be served on the persons represented by the
withdrawing attorney or sent to them by certified mail, postage prepaid, to
their last known mailing addresses. Proof of service or mailing shall be
filed, except that the address of the withdrawing attorney's client may be
omitted under circumstances defined by subsection (c)(1) of this rule.
(3) Withdrawal Without Objection. The withdrawal shall be effective,
without order of court and without the service and filing of any additional
papers, on the date designated in the Notice of Intent To Withdraw, unless
a written objection to the withdrawal is served by a party on the
withdrawing attorney prior to the date specified as the day of withdrawal
in the Notice of Intent To Withdraw.
(4) Effect of Objection. If a timely written objection is served,
withdrawal may be obtained only by order of the court.
(d) Withdrawal and Substitution. Except as provided in section (b), an
attorney may withdraw if a new attorney is substituted by filing and
serving a Notice of Withdrawal and Substitution. The notice shall include a
statement of the date on which the withdrawal and substitution are
effective and shall include the name, address, Washington State Bar
Association membership number, and signature of the withdrawing attorney
and the substituted attorney. If an attorney changes firms or offices, but
another attorney in the previous firm or office will become counsel of
record, a Notice of Withdrawal and Substitution shall nevertheless be
filed.
9. APPEALS
(RULES 72-76)
(RESERVED)
RULE CR 77
SUPERIOR COURTS AND JUDICIAL OFFICERS
(a) Original Jurisdiction. (Reserved. See RCW 2.08.010.)
(b) Powers of Superior Courts.
(1) Powers of Court in Conduct of Judicial Proceedings. (Reserved. See RCW 2.28.010.)
(2) Punishment for Contempt. (Reserved. See RCW 2.28.020.)
(3) Implied Powers. (Reserved. See RCW 2.28.150.)
(c) Powers of Judicial Officers.
(1) Judges Distinguished From Court. (Reserved. See RCW 2.28.050.)
(2) Judicial Officers Defined--When Disqualified. (Reserved. See RCW 2.28.030.)
(3) Powers of Judicial Officers. (Reserved. See RCW 2.28.060.)
(4) Judicial Officer May Punish for Contempt. (Reserved. See RCW 2.28.070.)
(5) Powers of Judges of Supreme and Superior Courts. (Reserved. See RCW 2.28.080.)
(6) Powers of Inferior Judicial Officers. (Reserved. See RCW 2.28.090.)
(7) Powers of Judge in Counties of His District. (Reserved. See RCW 2.08.190.)
(8) Visiting Judges.
(A) Assignments.
(i) Visiting judges at direction of Governor. (Reserved. See RCW 2.08.140.)
(ii) Visiting judges at request of judge or judges. (Reserved. See RCW 2.08.140 and 2.08.150.)
(iii) Court administrator--make recommendations. (Reserved. See RCW 2.56.030(3).)
(iv) Duty of judges to comply with Chief Justices direction.
(Reserved. See RCW 2.56.040.)
(B) Powers. Whenever a visiting judge has heard or tried any case or
matter and has departed from the county, he may require the argument on any
posttrial motion to be submitted to him on briefs at such place within the
state as he may designate and he may sign findings of fact, conclusions of
law, judgments and posttrial orders anywhere within the state. See also RCW
2.08.140 and 2.08.150.
(9) Judges Pro Tempore. (Reserved. See RCW 2.08.180.)
(10) Change of Judge. (Reserved. See RCW 4.12.040 and 4.12.050.)
(11) Court May Fix Amount of Bond in Civil Actions. (Reserved. See RCW 4.44.470.)
(d) Superior Courts Always Open. The superior courts are courts of
record, and shall be always open, except on nonjudicial days.
(e) No Court on Legal Holidays--Exceptions. (Reserved. See RCW 2.28.100.)
(f) Sessions. The superior court shall hold regular and special
sessions at the county seats of the several counties at such times as the
judges may determine and at such other places within the county as are
designated by the judge or judges thereof with the approval of the chief
justice of the supreme court of this state and of the governing body of the
county. Special sessions, i.e., mental illness hearings, juvenile
hearings, and proceedings which are authorized to be held before a court
commissioner may be held at such times and places as the judges may authorize.
(g) Adjournments.
(1) Power. (Reserved. See RCW 2.28.120.)
(2) Automatic. (Reserved. See RCW 2.28.110.)
(3) Effect. (Reserved. See RCW 2.08.040.)
(h) (Reserved.)
(i) Sessions Where More Than One Judge Sits--Effect of Decrees, Orders,
etc. (Reserved. See RCW 2.08.160.)
(j) Trials and Hearings; Orders in Chambers. Except as otherwise
authorized by these rules or by statute, all trials upon the merits shall
be conducted in open court and so far as convenient in a regular courtroom.
All other acts or proceedings may be done or conducted by a judge in
chambers, without the attendance of the clerk or other court officials and
at any place either within or without the county; but no hearing, other
than one ex parte, shall be conducted outside the county in which the cause
or proceedings are pending without the consent of all parties affected thereby.
(k) Motion Day--Local Rules. Unless local conditions make it
impracticable, the superior court in each county shall establish regular
times and places, at intervals sufficiently frequent for the prompt
dispatch of business, at which motions requiring notice and hearing may be
heard and disposed of; but the judge at any time or place and on such
notice, if any, as he considers reasonable may make orders for the
advancement, conduct, and hearing of actions.
(l) Submission on Briefs. To expedite its business, the court may make
provision by rule or order for the submission and determination of motions
without oral hearing upon brief written statements of reasons in support and opposition.
(m) Stipulations. See rule 16.
(n) Seal of Court. (Reserved. See RCW 2.08.050.)
[Amended effective May 24, 1978; September 1, 1992; September 1, 2003.]
RULE 78
CLERKS
(a) Powers and Duties of Clerks. (Reserved. See RCW 2.32.050.)
(b) Office Hours. The clerk's office with the clerk or a deputy in
attendance shall be open during business hours on all days except
Saturdays, Sundays, and legal holidays.
(c) Orders by Clerk. All motions and applications in the clerk's office
for issuing mesne process, for issuing final process to enforce and execute
judgments, and for other proceedings which do not require allowance or
order of the court are grantable of course by the clerk; but his action may
be suspended or altered or rescinded by the court upon cause shown.
(d) Filing of Depositions. Upon the filing of a deposition transcript
in any case pursuant to rule 5(i), the clerk shall forthwith endorse the
date of the filing upon the envelope, and shall enter the same upon the
case history docket.
(e) Entry of Judgments and Costs. The clerk shall enter judgment or
decree pursuant to the provisions of rule 58 and the same shall then be
entered for the sum found due or the relief awarded, with costs and
disbursements, if any, to be taxed. Entry of judgment shall not be delayed
for the taxing of costs. If no cost bill is filed by the party to whom
costs are awarded within 10 days after the entry of the judgment or decree,
the clerk shall proceed to tax the following costs and disbursements,
namely:
(1) The statutory attorney fee;
(2) The clerk's fee; and
(3) The sheriff's fee.
If a cost bill is filed, the clerk shall enter as the amount to be
recovered the amount claimed in such cost bill, and no motion to retax
costs shall be considered unless the same be filed within 6 days after the
filing of the cost bill.
For purposes of this subsection (e), "cost bill" also includes affidavit
detailing disbursements.
(f) Bonds. The clerk shall at once upon the filing of a bond (except
bond for costs) enter the same at large upon the journal. The clerk shall
endorse upon every affidavit or undertaking filed to procure a writ of
attachment, the day, hour, and minute of filing thereof.
[Amended effective September 1, 1988; September 1, 2007.]
RULE 79
BOOKS AND RECORDS KEPT BY THE CLERK
(a) Civil Docket. (Reserved.)
(b) Civil Judgments and Orders.
(1) Generally. (Reserved.)
(2) Entry of Judgment in Journal. (Reserved. See RCW 4.64.030.)
(3) Judgment Roll. (Reserved. See RCW 4.64.040.)
(4) Identification of Judgment Roll. (Reserved. See RCW 4.64.050.)
(5) Execution Docket. (Reserved. See RCW 4.64.060.)
(6) Entry of Verdict in Execution Docket. (Reserved. See RCW 4.64.020.)
(7) Entries in Execution Docket. (Reserved. See RCW 4.64.080.)
(8) Transcript of Justice Docket. (Reserved. See RCW 4.64.110.)
(9) Entry of Abstract or Transcript of Judgment. (Reserved. See RCW
4.64.120.)
(10) Abstract of Judgment. (Reserved. See RCW 4.64.090.)
(11) Abstract of Verdict--Cessation of Lien. (Reserved. See RCW
4.64.100.)
(c) Indices; Calendars. (Reserved.)
(d) Other Books and Records of Clerk. (Reserved.)
(e) Destruction of Records. (Reserved. See RCW 36.23.065 and GR 15.)
(f) List of Pending Decisions. The clerk of each county shall maintain
a permanent, public record showing each case submitted to a judge and not
yet decided. Said list shall clearly show what, if any, further action is
to be taken by any party or counsel and when said action should be taken.
Said list shall be called to the attention of every judge in said county on
the first Monday of each calendar month. Any case which shall have been
submitted to any visiting judge and not yet decided shall be called to the
attention of such visiting judge by mail on said dates.
RULE 80
COURT REPORTERS
(a) (Reserved.)
(b) Electronic Recording. In any civil or criminal proceedings,
electronic or mechanical recording devices approved by the Administrator
for the Courts may be used to record oral testimony and other oral
proceedings in lieu of or supplementary to causing shorthand notes thereof
to be taken. In all matters the use of such devices shall rest within the
sole discretion of the court.
(c) Recording Proceedings in Superior Court by Means of Videotape. All
superior courts that elect to use video equipment to record proceedings
shall comply with courtroom procedures published by the Office of the
Administrator for the Courts.
RULE 81
APPLICABILITY IN GENERAL
(a) To What Proceedings Applicable. Except where inconsistent with
rules or statutes applicable to special proceedings, these rules shall
govern all civil proceedings. Where statutes relating to special
proceedings provide for procedure under former statutes applicable
generally to civil actions, the procedure shall be governed by these rules.
(b) Conflicting Statutes and Rules. Subject to the provisions of
section (a) of this rule, these rules supersede all procedural statutes and
other rules that may be in conflict.
RULE 82
VENUE
(a) Nonresident. An action against a nonresident of this state may be
brought:
(1) In any county in which service of process may be had; or
(2) In a county in which the acts, or any of them, were done which gave
rise to service under RCW 4.28.180 and 4.28.185; or
(3) In the county in which the plaintiffs, or any of them, reside.
(b) Request--Waiver. If an action is brought in the wrong county, the
action may nevertheless be tried therein unless the defendant, pursuant to
the provisions of rule 12, requests that the trial be held in the proper
county and files an affidavit of merits.
(c) Default. See rule 55(c). No order of default shall be entered if it
clearly appears to the court from the papers on file that the action was
brought in an improper county, except as provided in rule 55(c)(2)(a) or
(b).
(d) Change of Venue--Fees. Any fees or costs required to be paid by a
party pursuant to RCW 4.12.090 shall be to the clerk of the county from
which the case is being transferred by check or money order made payable to
the clerk of the county to which the case is being transferred.
RULE 82 .5
TRIBAL COURT JURISDICTION
(a) Indian Tribal Court; Exclusive Jurisdiction. Where an action is
brought in the superior court of any county of this state, and where, under
the Laws of the United States, exclusive jurisdiction over the matter in
controversy has been granted or reserved to an Indian tribal court of a
federally recognized Indian tribe, the superior court shall, upon motion of
a party or upon its own motion, dismiss such action pursuant to CR
12(b)(1), unless transfer is required under federal law.
(b) Indian Tribal Court; Concurrent Jurisdiction. Where an action is
brought in the superior court of any county of this state, and where, under
the Laws of the United States, concurrent jurisdiction over the matter in
controversy has been granted or reserved to an Indian tribal court of a
federally recognized Indian tribe, the superior court may, if the interests
of justice require, cause such action to be transferred to the appropriate
Indian tribal court. In making such determination, the superior court shall
consider, among other things, the nature of the action, the interests and
identities of the parties, the convenience of the parties and witnesses,
whether state or tribal law will apply to the matter in controversy, and
the remedy available in such Indian tribal court.
(c) Enforcement of Indian Tribal Court Orders, Judgments or Decrees.
The superior courts of the State of Washington shall recognize, implement
and enforce the orders, judgments and decrees of Indian tribal courts in
matters in which either the exclusive or concurrent jurisdiction has been
granted or reserved to an Indian tribal court of a federally recognized
tribe under the Laws of the United States, unless the superior court finds
the tribal court that rendered the order, judgment or decree (1) lacked
jurisdiction over a party or the subject matter, (2) denied due process as
provided by the Indian Civil Rights Act of 1968, or (3) does not
reciprocally provide for recognition and implementation of orders,
judgments and decrees of the superior courts of the State of Washington.
GENERAL CIVIL RULE 83
LOCAL RULES OF COURT
(a) Adoption. Each court by action of a majority of the
judges may from time to time make and amend local rules governing
its practice not inconsistent with these rules. Local rules
shall be numbered and indexed in a manner consistent with the
numbering and index system for the Civil Rules.
(b) Filing with the Administrator for the Courts. Local
rules and amendments become effective only after they are filed
with the state Administrator for the Courts in accordance with GR 7.
RULE 84
FORMS
(RESERVED)
RULE 85
TITLE OF RULES
These rules shall be known and cited as the Superior Court Civil Rules.
CR is the official abbreviation.
RULE 86
EFFECTIVE DATES
Generally--Pending Actions. These rules and amendments promulgated
pursuant to authority granted to the Supreme Court shall govern all
proceedings in actions after they take effect, and also all further
proceedings in actions pending on their effective dates, except to the
extent that in the opinion of the superior court, expressed by its order,
the application of rules in a particular action pending when the rules take
effect would not be feasible or would work injustice, in which event the
procedure existing at the time the action was brought applies.
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