FLCR - Superior Court Family Law Civil Rules

• Proposed New Rule FLCR - Superior Court Family Law Civil Rules (in Word Format)
• Comments Received for FLCR - Superior Court Family Law Civil Rules

Purpose:

In 2006, a coalition of eight Washington State Bar Association sections asked the WSBA Court Rules and Procedures Committee to consider the impact of the proliferation of local rules on litigants and their counsel. The coalition recommended abolishment of all local rules with the exception of those rules governing docket management. The Court Rules and Procedures Committee suggested to the Board of Governors that a special task force be convened to evaluate this issue. In the fall of 2006 the WSBA created and chartered the Local Rules Task Force (“the Task Force”) and by early winter 2007 appointed its co-chairs and members.

The Task Force consists of representatives of various stakeholders concerned with the proper promulgation, amendment, and application of the local rules of Superior Courts, including court administrators, judges, and lawyer-practitioners. The practitioner group has been augmented by representatives of the family law bar, whose procedures have given rise to a distinct body of rules. Practitioners include members of the trial bar from both the public and private sectors. Jurists include both current and former members of the bench. The Task Force is co-chaired by Supreme Court Justice Charles W. Johnson and attorney Lish Whitson.

The Task Force was created to review the purpose and function of local rules; the impact of local rules on courts, litigants (both pro se and represented) and the trial bar; and possible means to mitigate the detrimental effects of the ever-increasing number of local rules. The Task Force was charged with reviewing the model local rules and practices in other states with non-unified court systems to develop recommendations on possible improvements or modifications to Washington’s local rulemaking process and authorizations, in addition to looking at the work product of the earlier efforts in this state to stem the proliferation of local rules. In discharging its mission under this Charter, the Task Force was mindful of the directive in Rule 1 of the Superior Court Civil Rules that the court rules “shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.”

The Task Force spent 18 months reviewing every Superior Court local rule from all 39 counties, and unearthed numerous problems which have contributed to the proliferation of local rules. Some of the concerns that were studied include:

• Local rules vary greatly from county to county, both in terms of content and numbering.

• Local rules are often created in reaction to specific incidents. They commonly persist long after their usefulness, without being reviewed or repealed.

• Often, civil, criminal, and family law rules are commingled in a single set of local rules.

• The sheer number of local rules, combined with commingling and lack of uniformity, causes problems for litigants by making the rules more difficult to understand and follow, creating traps for the unwary.

• The burden and cost placed upon counsel and litigants required to comply with different local rules in each county increases the cost of litigation, which has the effect of reducing access to equal justice.

• In some counties, failure to follow local rules can result in the loss of substantive rights.

• Some individual judges have established “procedures” for their courts that are not even codified as local rules, such as different colored paper for different pleadings.

• Some local rules, rather than being purely procedural in nature, contain matters of substantive law. Worse, some local rules may be best described as “legislating via court rule.”

• Some counties include statewide rules, statutes, and even case law in their local rules.

• Some local rules are outdated, referencing obsolete technology and procedures, or have not been modified to reflect changes in the law or statewide rules.

• Some local rules are outright contradictory to statewide rules.

• Local rules differ with regard to the format of pleadings, forms, page limitations, and brief requirements--some with procedurally significant impacts—and do not comply with GR 14.

• There is currently no mechanism for assuring the uniformity of the local rules or for the systematic approval, review, or elimination of local rules from county to county.

During its work, the Task Force became especially concerned about the complex issues and procedures surrounding family law cases. The Task Force learned that family law is a distinct area of law with its own special problems, and that many counties had enacted both civil and family law local rules in an effort to accommodate the special nature of family law cases. The Task Force’s review revealed there is often cross-over between family law rules and civil rules at both the state and local levels, because family law cases are also civil law cases. This forces family law practitioners and pro se litigants to not only be cognizant of local rules that are clearly identified as family law local rules, but also of local civil rules containing provisions applicable to family law cases. At the same time, both practitioners and pro se litigants must also keep in mind state Civil Rules in order to find all the rules that may apply to their family law case.

The Task Force created a family law subcommittee with special expertise in family law issues. All local rules as they related to family law matters were separately reviewed by this subcommittee. The subcommittee reported serious access to justice issues, such as the practice of some courts to adopt local rules making court services both mandatory and with required service fees. In addition, the subcommittee found that a number of family law related local rules, rather than being purely procedural in nature, contained matters of substantive law or were substantive with no corresponding authority in law. Finally, there are also specific topic areas of interest to family law practitioners and litigants with no counterpart in the Civil Rules.

The Task Force has presented an interim report to the WSBA Board of Governors (available on the WSBA website, www.wsba.org) and is continuing its important work. As the first step in its ongoing efforts to curb the proliferation of local rules, eliminate sources of confusion and traps for the unwary, and promote and facilitate access to justice, the Task Force has promulgated a proposed set of Superior Court Family Law Civil Rules (“FLCR”). The FLCR are intended to secure the just, speedy, and inexpensive determination of family law matters. The proposed FLCR parallel the Superior Court Civil Rules (“CR”) and are intended to provide the framework for general management of family law cases.

Key components of the FLCR include:

• Specific provisions for timing and scheduling of motions, as well as delivery of responses and replies (FLCR 6(d));

• Specific language allowing for presentation of telephonic oral argument, at the court’s discretion, and imposing page limits and other restrictions on motions (FLCR 7);

• Format requirements (FLCR 10(d));

• Provision for information exchange/automatic discovery of documents commonly required for family law actions (FLCR 16(c));

• Entry of automatic temporary orders to preserve the status quo on petitions to dissolve marriages, relationships, or meretricious relationships (FLCR 16(d));

• Provisions addressing the use of courthouse facilitators (FLCR 87); and

• Authority to require participation in extra-judicial services/parenting seminars (FLCR 88).

The Task Force anticipates that the FLCR will eliminate the need for many counties’ local rules; however, the Task Force also recognizes that different counties have different needs. For example, large counties may feel they have more of a need to manage case flow via local rules. Once adopted, under GR 7, CR 83, and proposed FLCR 83, any County proposing to modify the FLCR would be required to submit their proposed local rules to the Supreme Court for review and approval prior to implementation. The Task Force anticipates working with the state Supreme Court in a concentrated effort to work with counties to eliminate local rules that do not comply with GR 7, CR 1, and/or CR 83, or which are otherwise unnecessary or inappropriate.

In addition to submitting the suggested Family Law Civil Rules, the WSBA Board of Governors respectfully recommends that the Supreme Court establish a timetable and methodology for counties to bring their local rules into conformance.